Madhya Pradesh High Court
Vikas vs The State Of Madhya Pradesh on 13 February, 2017
1
Miscellaneous Criminal Case No.430/2017
Miscellaneous Criminal Case No.437/2017
Miscellaneous Criminal Case No.1463/2017
Miscellaneous Criminal Case No.1464/2017
13.02.2017
Shri S.K. Vyas, learned Senior Counsel with Shri
Vivek Singh and Shri Ravi Verma, learned counsel for
the applicant (s).
Shri Sunil Jain, learned Additional Advocate
General with Shri Pushyamitra Bhargava, learned
Deputy Advocate General for the non-applicant / State
of Madhya Pradesh.
Shri Ravindra Singh Chhabra, learned counsel for
objector / victim (Smt. Versha Garg wife of deceased
Yogesh Garg) in Miscellaneous Criminal Case
No.437/2017.
They are heard.
ORDER
These four transfer applications under Section 407 of Criminal Procedure Code, 1973 have been filed by the applicant (s) for transfer of Sessions Trial No.227/2016 and Sessions Trial No.632/2016 pending before the 2nd Additional Sessions Judge, Mhow, District Indore to some other district of the State of Madhya Pradesh.
2. Brief facts of the case are that on 18.11.2015, two unknown persons came on a motorcycle and caused gun shot injury to one Yogesh Garg at Laxminarayan 2 Mandir Sanghi Street, Mhow at around 23.15 PM, who was later on referred to Gokuldas Hospital, Indore and on 19.11.2015, during course of treatment, he died. During pendency of the investigation, prosecution had impleaded various accused persons, including the present applicant (s) in Miscellaneous Criminal Case No.437/2017 and Miscellaneous Criminal Case No.1464/2017. The applicants in both the miscellaneous criminal cases are facing trial (Sessions Trial No.632/2016) before the learned 2nd Additional Sessions Judge, Mhow, District Indore for the offence punishable under Sections 302, 201 and 120-B read with Section 34 of the Indian Penal Code, 1860.
3. According to the applicants, due to pressure of the local Bar Association of the lawyers at Mhow, as the incident took place with deceased Shri Yogesh Garg, advocate who was the practicing lawyer and almost at every date the personal safety of the applicant (s) is at stake and even the Court is also under so much pressure to conduct the trial for the reasons of the pressure of the local Bar Association, the present applications have been filed by the applicants to seek transfer of the trial.
4. In Miscellaneous Criminal Case No.430/2017 and Miscellaneous Criminal Case No.1464/2017, the facts of 3 the case according to the prosecution story are that incident occurred on 29.03.2016 when a dumper bearing registration number MP-09 GE-3412 suddenly collided with a car bearing registration number MP-09 CH-3767 behind which two motorcycles bearing registration numbers MP-09 NN-4034 and MP-09 CN- 3767 also collided with the said dumper and the drivers of both the motorcycles died during treatment and the driver of the car and pillion rider were badly injured, after which a written complaint on behalf of one Bane Singh was filed before the police authorities on 31.03.2016 stating the said accident to be a conspiracy to cause death of the car driver namely Jai Singh Thakur.
5. After completion of the investigation, challan papers were filed before the learned trial Court and learned trial Court framed charges under Sections 301, 302, 307, 120-B, 420, 467 and 468 of the Indian Penal Code, 1860 against the applicants in Miscellaneous Criminal Case No.430/2017 and Miscellaneous Criminal Case No.1463/2017 in Sessions Trial No.227/2016.
6. The connection of Sessions Trial No.632/2016 has been fastened to that of the co-accused persons involved in murder of another deceased Yogesh Garg, 4 Advocate from Mhow of which a mere coincident is the fact that the car driver was also a lawyer who also filed numerous cases against one of the co-accused of Yogesh Garg case, who conspired with the applicant to cause death of Jai Singh Thakur. Since both trials are being tried in the same Court i.e. 2nd Additional Sessions Judge, Mhow, District Indore.
7. Learned Senior Counsel for the applicants has submitted that the learned trial Court is under tremendous pressure of the local Bar Association of the advocates and the applicants seek transfer of the matter from the Court of Mhow, District Indore to any other Court of neighbouring district.
8. He also submitted that in Sessions Trial No.227/2016, three eye witnesses are advocates and they supported the case of the prosecution. He has drawn my attention to paragraphs No.19, 20, 28 and other paragraphs of court statement of Smt. Varsha Garg wife of the deceased Yogesh Garg (PW-1); paragraphs No.55, 60, 86, 96 and 117 of Jai Prakash Maharshi (PW-4) and his police statement Ex.D/14 and submitted that the deceased was a practicing lawyer at Mhow and even the family members of the applicant have also not been able to meet the applicant on the date of hearing of the case, as they are also afraid and 5 scared of their lives, looking to the aggression of the lawyer at Mhow.
9. He further submitted that on earlier occasion, an application was filed before the learned trial Court for adjournment in the month of August, 2016, however, the said application, although was dismissed by the learned trial Court, which was subsequently challenged before this Court in Miscellaneous Criminal Case No.7493/2016 and this Court was pleased to direct the learned trial Court to adjourn the case; but, despite the directions of this Court, the learned trial Court has imposed cost of Rs.1,50,000/- (rupees one lakh fifty thousand) to be paid to the prosecution witnesses, as the witness came from USA, which again was challenged before this Court. Looking to the pattern and conduct, the applicant does not question the impartial-ness of the learned trial Court but consequently also scared with the pattern of trial.
10. He also pointed out that it is well settled principle of law that unless the guilt is proved every one is innocent, but the group of lawyers at Mhow to whom the applicants has no acquittance is agitating for capital punishment, and therefore, the applicants apprehend that due to pressure of local Bar Association, they may not get justice from the learned Court of 2nd Additional 6 Sessions Judge, Mhow, District Indore and prays for transfer of the case.
11. The stand of the non-applicant / State of Madhya Pradesh is that deceased Yogesh Garg was brutally murdered in Mhow and as per provisions of Code of Criminal Procedure, 1973, trial is required to be conducted in Mhow. At no point of time, the accused persons had expressed any fear of life or threat from the family of the deceased. On 08.12.2016, this Court in Miscellaneous Criminal Case No.9258/2016 directed the learned trial Court to expedite the trial; relevant part of the order reads, as under: -
"Taking all the facts and circumstances of the case into consideration, it appears that no such direction is required to be issued at this stage, however, it is expected from the trial Court that it would make all endeavour to dispose of the matter as expeditiously as possible in accordance with law."
12. It is not in dispute that originally application was filed for transfer of the sessions trial from Mhow to Indore i.e. within the same sessions division. Later on, the application for amendment was allowed.
13. Shri Sunil Jain, learned Additional Advocate General for the non-applicant / State of Madhya Pradesh has submitted that the trial was withheld for a period from 07.11.2016 till 08.12.2016 and it was only when order dated 08.12.2016 passed in Miscellaneous 7 Criminal Case No.9258/2016 by this Court for expeditiously trial, the application for transfer of both the trials has been made. The transfer application is an effort to mitigate the order of expeditious trial ordered by this Court on 08.12.2016.
14. He also submitted that accused persons are duly represented by local advocates viz. Shri Vikram Dubey, Shri Tapan Shrivas and Shri Harish Kaushal and learned Senior Counsel also has been engaged by them.
15. In respect of pressure on the learned trial Court, he submitted that at no point of time, the learned trial Judge has expressed any pressure on him in any of the proceedings of the case. At no point of time, the accused persons had expressed any fear of life or threat from the family of the deceased.
16. With regard to the question whether any complaint was lodged to the local police station, he submitted that imposition of Rs.1,50,000/- cost was on account of expenditure incurred by the witness in travelling from USA to India. There is no ground for drawing inference with regard the question of impartial-ness of the learned trial Court. He submitted that the applicant has not been able to demonstrate as to how pattern of the trial has affected his interest so as to seek transfer of the case.
817. He lastly drawn my attention to the order passed by the Hon'ble Apex Court in Transfer Petition (CRL) No.365/2016 (Shallam Khajanchi & others v. Ritesh Inani & others) decided on 18.11.2016, wherein respondent Ritesh Inani was a practicing lawyer and also holder of a post of Bar Association of High Court at Indore and accused persons therein filed petition for transfer, which has been dismissed by the Hon'ble Apex Court; order dated 18.11.2016 reads, as under: -
"Heard learned Senior counsel / counsel appearing for the parties.
The Transfer Petition is dismissed. However, we would request the High Court to consider appointing a Senior Advocate as Amicus Curiae in the matter and decide the matter as expeditiously as possible. No coercive steps be taken against the petitioners till the matter is decided by the High Court."
18. Learned counsel for the objector supported the arguments of the learned Additional Advocate General for the non-applicant / State of Madhya Pradesh and prayed for dismissal of the transfer application.
19. I have learned counsel for the parties at length.
20. The assurance of fair trial is the main criteria for exercise of power under Section 407 of the Code of Criminal Procedure, 1973. Mere allegations like substantial prejudice, non-availability of the congenial 9 atmosphere for a free trial cannot be the sole ground for transfer. Mere apprehension is not enough. The applicant, accused or complainant cannot be allowed to have a forum of his own choice. A case can be transferred on the request of a Judge only if for reasons personal to him, he cannot hear and decide and he has some interest in it or finds some difficulty or a reason akin to it. Mere presumptions or possible apprehension are not sufficient therefor; only good and sufficient grounds, clearly set out in the order, may justify the transfer.
21. In the case of Mrs. Maneka Sanjay Gandhi and another v. Miss Rani Jethmalani reported in (1979) 4 SCC 167, the Hon'ble Apex Court held that the assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of the parties or easy availability of legal service or like trivial grievances. Something more substantial, more compelling, more imperiling from the point of view of public justice and its attendant environment is necessitous if the Court is to exercise its power of transfer.
22. Learned trial Court is the master of the orderly 10 conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow-beating. The trial Court shall take measures to enforce conditions where the court function free and fair and agitational or muscle tactics yield no dividends.
23. He has also drawn my attention to the decision of the Hon'ble Apex Court in the case of Pal Singh and another v. Central Bureau of Investigation and others reported in (2005) 12 SCC 329; Nahar Singh Yadav and another v. Union of India and others reported in (2011) 1 SCC 307; Ashish Chadha v. Asha Kumari and another reported in (2012) 1 SCC 380; and Kanklata v. State (NCT of Delhi) and others reported in (2015) 6 SCC 617; and also to the decision of the High Court of Madhya Pradesh in the case of Chetram Gendalal Gouli v. Ramdin Kunji Gouli and others reported in 1995 MPLJ 532.
24. The law laid down by the High Court of Madhya Pradesh in the case of Chetram Gendalal Gouli v. Ramdin Kunji Gouli and others (supra) in paragraph No.17, reads as under: -
"17. I am conscious that the petitioner filing an application under Section 407, Criminal Procedure Code has only to show or demonstrate that there is a ground for genuine apprehension in his mind. He is not supposed 11 to prove any allegation beyond any reasonable doubt. I am also conscious that justice should not only to be done but should also appear to have been done. Therefore, the authority reported in Ballsing alias Balram Singh vs. State of MP, 1986 MPLJ, Short Note 39 and Shambhooldayal vs. State of MP and others, 1986 MPLJ at page 371, have only reiterated the very basic and fundamental principles of imparting justice. Nevertheless, it does not mean that the sessions trial or for that matter any case should be transferred from one court to the other merely on the basis of any unfounded suspicion or may be, just to satisfy the ego of a person."
25. A Judge cannot ask questions which may confuse, coerce or intimidate the witness [See Sidharth Vashist v. State of (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1].
26. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises, from the grounds as narrated by the learned Senior Counsel, it does not appear that the dispensation of criminal justice is not possible impartially and objectively and without any basis, before the trial Court at Mhow nor there is any material to say that holding of fair and proper trial is conducive.
27. For the above mentioned reasons, I am of the view that no sufficient ground is made out by the applicants to transfer Sessions Trial No.227/2016 and Sessions 12 Trial No.632/2016 from the Court of Mhow, District Indore to the Court of any other District in Madhya Pradesh.
28. Accordingly, Miscellaneous Criminal Case No.430/2017, Miscellaneous Criminal Case No.437/2017, Miscellaneous Criminal Case No.1463/2017 and Miscellaneous Criminal Case No.1464/2017 are dismissed.
(P.K. Jaiswal) Judge Pithawe RC