Gujarat High Court
Venkatesh Parmathma Acharya vs Suman Parshottam Lakum & 4 on 6 June, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/18022/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR TRANSFER) NO. 18022 of 2015
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VENKATESH PARMATHMA ACHARYA....Applicant(s)
Versus
SUMAN PARSHOTTAM LAKUM & 4....Respondent(s)
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Appearance:
MR HR LATHIGARA, ADVOCATE for the Applicant(s) No. 1
MR BHUNESH C RUPERA, ADVOCATE for the Respondent(s) No. 1 - 4
MS CM SHAH, PUBLIC PROSECUTOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 06/06/2016
ORAL ORDER
1. The petitioner has approached this Court requesting for transfer of proceedings of Criminal Case No. 11997 of 2012, from the Court of the learned Judicial Magistrate, Court No. 702, Ahmedabad (Rural) to District Court:
Gandhinagar, by preferring an application under Section 407 of the Code of Criminal Procedure, in connection with the incident that took place on 29.09.2012 and the complaint in regard to which came to be lodged by the petitioner on 01.10.2012, which is eventually culminated in Criminal Case No. 11997 of 2012.
2. Here, it may be noted that Respondent No.4 had also lodged a complaint against the present petitioner of outraging her modesty, after the said complaint while the complainant Page 1 of 46 HC-NIC Page 1 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER was undergoing treatment of fracture. However, this Court vide order dated 16.09.2015 passed in Criminal Misc. Application No. 12517 of 2015 quashed the complaint filed by Respondent No.4 against the present petitioner being I-C.R. No. 275 of 2012, registered with the Vejalpur Police Station under Sections 452, 354, 294B, 506(2) read with Section 114 of the Indian Penal Code.
At this stage, some of the findings and observations of this Court, from Criminal Misc. Application No. 52517 of 2015, deserves reproduction;
"3. The case of the first informant may be summarized as under:-
3.1 The first informant and the applicants are residing in one society, namely, Shantinagar, Part-I at Vejalpur, Ahmedabad. On 29th September, 2012 at around 10:00 O' clock in the morning, a quarrel ensued between the family members of the first informant and the applicants herein. The applicants are all members of one family. It is alleged that the applicant No.1 tried to outrage the modesty of the first informant by tearing her Payjama. It is further alleged that the applicants entered into an altercation on account of a long standing dispute with regard to accounts of the society. It is alleged that bad words were uttered by the applicants.
4. It deserves to be noted that for an Page 2 of 46 HC-NIC Page 2 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER incident which occurred on 29th September, 2012, the first information report was lodged on 1st October, 2012, I.e., almost after a period of two days. What is suppressed in the first information report is the fact that applicant No.1 Venkatesh Parmatma Aacharya was brutally assaulted by the first informant and her family members. The photographs on record would suggest that the injuries were almost fatal. There were multiple fractures on the body of the applicant No.1 and he had to be admitted in the ICU for couple of days. The charge-sheet papers containing the medical certificates makes the picture more clear. These facts have not been stated in the first information report lodged by the first informant herein after a period of two days. Besides the same, in the charge-sheet which has been filed against the first informant herein and her family members for the offence under section 326 of the IPC, there are statements of independent witnesses residing in the society. Those witnesses have not stated a word about what has been alleged by the first informant herein in her FIR. It appears that having realized the consequences of their act, the first informant and her family members thought fit to file a first information report as a counter blast after a period of two days. In the charge-sheet which has been filed by the Investigating Agency against the present applicants, except the statements of the family members, there is not a single statement of any independent witness. It is alleged by the first informant that her Payjama was torn, however, it is not in dispute that no such Payjama was ever recovered in the course of the investigation. No other witness has said anything about it in Page 3 of 46 HC-NIC Page 3 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER their statements. The first information report lodged by the first informant herein was nothing but an afterthought.
Only with a view to save themselves from the FIR lodged against them. It is true that in the present case, the charge has already been framed. However, if such charge is framed without any materials on record, then it is always open for the accused to challenge such charge.
5 In two of the recent pronouncements of the Supreme Court in the case of Rajiv Thapar & Ors. v. Madan Lal Kapoor, 2013(3) SCC 330 and Satish Mehra vs. State of NCT of Delhi, 2013 Criminal Law Journal 411, the Supreme Court has taken the view that even charge can be challenged by the accused.
6. Even if I accept the entire case of the first informant as it is, none of the ingredients to constitute the offence under sections 354, 352, 294 and 506(2) of the IPC are spelt out.
7. In the aforesaid view of the matter, I am convinced that no case is made out against the applicants to put them to trial."
3. This Court in its order dated 21.04.2016, noted thus;
"6. The complaint, which is lodged by the present petitioner, is pending before the learned Judicial Magistrate Fist Class, Ahmedabad (Rural) being the Criminal Case No. 11997 of 2012. It is Page 4 of 46 HC-NIC Page 4 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER the case of the petitioner that a request was made to the learned Magistrate to add Sections 326, 307 of the Indian Penal Code, which angered the Respondents, more particularly, Respondent No.4, herein. Thereafter, when the matter was, once again, taken-up on the Board on 18th May, 2015, a mob of about 40-50 advocates rushed into the Court Room and started abusing the petitioner. The petitioner was also manhandled in the presence of the Ld. Magistrate and after pulling him out of the Court room, the mob started beating him. After the great struggle the petitioner escaped and rushed into the Court Room and requested to give him police protection. However, the learned Magistrate was helpless before the members of the Bar Association and asked him to go out and take protection and after much difficulty, he reached home.
7. The petitioner also made a request to the learned Principal District Judge, Mirzapur, Ahmedabad, wherein also, he narrated the entire incident in detail and also urged that he is required to be given police protection and apt arrangements be made to ensure that the proceedings are conducted fearlessly.
8. The, then, learned Principal District Judge vide his communication dated 18.06.2015 has given a brief reply to the petitioner, directing him to contact police for seeking police protection. The petitioner, then, moved Police Inspector, Shahpur Police Station and the police endorsed on 14.07.2015 that no protection can be granted on 16.07.2015, as they are engaged in Rath Yatra arrangements.Page 5 of 46
HC-NIC Page 5 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER
9. By way of an additional affidavit, the petitioner has urged this Court that on 22.01.2016, Respondent No.4 is an advocate by profession, made an application to the Vejalpur Police Station stating, therein, that her life is in danger. The complaint given by Respondent No.4, according to the applicant, contained false and baseless allegations, and therefore, the same came to be filed. It is also pointed out to this Court that the Secretary of the Ahmedabad Criminal Courts Bar Association addressed a letter to the PI, Vejalpur Police Station, to immediately look into the complaint and to do the needful at the earliest, as she is a lady advocate and as the allegations made by her are of serious nature.
10. Under the circumstances, the petitioner is before this Court seeking transfer of the matter. Before this Court actually adjudicates, as to whether there is a need to transfer the proceedings or not, it is necessary to get the report of the concerned Magistrate, in whose Court, a mob of advocates, as alleged in the petition, attacked the petitioner and as to whether any report submitted, at the relevant point of time, by the concerned learned Magistrate, which is also require to be brought on record.
11. The learned Principal District Judge is requested through the Registry to inquire into the aforesaid aspect and report to this Court.
12. It is to be noted that the Supreme Page 6 of 46 HC-NIC Page 6 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER Court in "MANEKA SANJAY GANDHI AND ANR. VS. RANI JETHMALANI", (1979) 4 SCC 167, wherein, Ms. Maneka Gandhi, the Editor of a journal, filed a petition for transfer of proceedings from Bombay to Delhi, on the ground that the parties reside in Delhi and the petitioner is not able to get competent legal services in Bombay and that the atmosphere in Bombay is not congenial to ensure a fair and impartial trial. While dismissing the petition of Ms. Maneka Gandhi, the Court issued certain directions, which need to be reproduced at this stage;
"4. Now to the next ground. The sophisticated processes of a criminal trial certainly require competent legal service to present a party's case. If an accused person, for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain court the whole Bar, for reasons of hostility or otherwise, refuses to defend an accused person-an extra-ordinary situation difficult to imagine, having regard to the ethics of the profession-it may well be put forward as a ground which merits this Court's attention. Popular frenzy or official wrath shall not deter a member of the Bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. Counsel has narrated some equivocal episodes which seem to suggest that the services of an efficient advocate may not be easy to procure to defend Mrs. Maneka Gandhi.
Such glib allegations which involve a Page 7 of 46 HC-NIC Page 7 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER reflection on the members of the Bar in Bombay may not be easily accepted without incontestible testimony in that behalf, apart from the ipse dixit of the party. That is absent here. It is difficult to believe that a person of' the position of the petitioner who is the daughter-in-law of the former Prime. Minister, wife of a consequential person and, in her own right, an editor of a popular magazine, is unable to engage a lawyer to defend her, while, as a fact, she is apparently represented in many legal proceedings quite competently.
5. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquility at the Page 8 of 46 HC-NIC Page 8 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER trial. 'Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J. Observed:
".... But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biassed but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done".
6. Accepting this perspective we must approach the facts of the present case without excitement, exaggeration or eclipse of a sense of pro portion. It may Page 9 of 46 HC-NIC Page 9 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER be true that the petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against, leading to cries and catcalls or 'Jais' or 'zindabads'. Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention when they appear in cities even in a court. And when unkempt crowds press into a court hall it is possible that some pushing, some nudging, some brash ogling or angry starting may occur in the rough and rumble resulting in ruffled feelings (1) G.X. Francis v. Banke Bihari Singh, A.I.R. 1958 S.C. 809 at 810 for the victim. This is a far cry from saying that the peace inside the court has broken down, that calm inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for the Judge parties, advocates and witnesses has ceased to exist. None of the allegations made by the petitioner, read in the pragmatic light of the counter-averments of the respondent and understood realistically, makes the contention of the counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but it subsided, and it was a storm in the tea cup or transcient tension to exaggerate which is unwarranted. The petitioner's case of great insecurity or molestation to the point of threat to life is, so far as the record bears out, difficult to accept. The mere word of an http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6 interested party is insufficient to convince us that Page 10 of 46 HC-NIC Page 10 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER she is in jeopardy or the court may not be able to conduct the case under conditions of detachment, neutrality or uninterrupted progress. We are disinclined to stampede ourselves into conceding a transfer of the case on this score, as things stand now.
7. Nevertheless, we cannot view with unconcern the potentiality of a flare-up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of E law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff or toughs being turned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manouvres in court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial."
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13. It is a matter of serious concern that in a series, this is the fourth matter, wherein, the Court has found that in a case, where one of the litigating parties is an advocate, smooth functioning of the Court is not being permitted and the other-side needs to rush to this Court for either transfer of proceedings or protection. This sad state of affairs goes to the very root of promise of fair trial to each person as envisaged in the Constitution of India. The learned Principal District Judge is requested through the Registry to INQUIRE INTO the aforesaid aspect and report to this Court. Let the report, in regard to the incident of 18th May, 2012, be SUBMITTED to this Court so that there is sufficient arrangement and the protection for the litigants to smoothly and fearlessly proceed with the matter.
14. This matter is kept for for hearing on 28TH APRIL, 2016. Registry shall send a copy of this order to the PRINCIPAL DISTRICT JUDGE, DISTRICT COURT, AHMEDABAD (RURAL), MIRZAPUR, who shall send his report in a sealed cover, so as to reach this Court on or before the next date of hearing."
A report called for through the learned Principal District Judge has been received through a communication addressed to the learned Registrar General, High Court of Gujarat, stating inter alia that remarks on Point Nos. 5 and 6 have been called for from the concerned learned 6th Additional Civil Judge and JMFC, Ahmedabad (Rural).
Page 12 of 46HC-NIC Page 12 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER The remarks of the 6th Additional Civil Judge and JMFC are received on 05.05.2016. While going through the report, it can be noticed that the concerned Officer did not take any action as no application for police protection was made before the Court. The matter was at the stage of recording of evidence of PW-11. On the said date, the witness was not present before the Court, and therefore, the matter was adjourned to 16.07.2015.
4. Both the sides have been heard and for and on behalf of Respondent Nos. 1 to 4 written submissions have also been submitted inter alia stating, therein, that no such incident ever occurred. According to Respondent Nos. 1 to 4 only with a view to gain sympathy of the Court, the facts have been upturned.
5. The petitioner has prayed to transfer his case under Section 407 of the Code of Criminal Procedure stating that his case falls within the four corners of the said provision. Here, it would be apt to reproduce Section 407 of the Code of Criminal Procedure;
"407. POWER OF HIGH COURT TO TRANSFER CASES AND APPEALS. (1) Whenever it is made to appear to the High Court- (a) that a Page 13 of 46 HC-NIC Page 13 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, 991 it may order- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction ; (iii) that any particular case be committed for trial to a Court of Session ; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative : Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may Page 14 of 46 HC-NIC Page 14 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER award under sub-section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 309. 992 (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197."
6. As can be seen and as is apparent on bare reading of this provision, whenever it is Page 15 of 46 HC-NIC Page 15 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER made to appear to the High Court that an impartial inquiry or trial cannot be held in any criminal Court subordinate to it and the question of unusual difficulty is likely to arise as for the general convenience of witnesses and when it is expedient for the ends of justice etc., the High Court can always transfer the case. Emphasis in this matter would be the aspect of general convenience of the parties as also, it is expedient for the interest of justice to so do it.
7. This Court in Special Criminal Application No. 6375 of 2015 vide its order dated 11.03.2016, while transferring the criminal case from one Court to another Court had considered some of the decisions rendered by the Apex Court, some of which find their reference, hereunder. It had also found it expedient to accede to the request for transfer of the case by making certain observations and conclusions. Profitably the same deserves reproduction, as in the instant case also one of the respondents is a lady advocate and accused, she is one of the litigating party and certain issues have arisen making it absolutely impossible for the trial to continue peacefully. The relevant observations made by this Court in Paragraphs-12 to 27, thereof, reads thus;
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12. At the outset, the reference of authority reported in Menaka Gandhi vs. Rani Jethmalani (supra) needs to be made, wherein the Editor of a monthly journal, Mrs. Menaka Gandhi filed a petition for the transfer of the criminal case of defamation against her from Bombay to Delhi on three grounds; namely, (I) that the parties (complainant and petitioners) reside in Delhi and some formal witnesses also belong to Delhi; (ii) that the petitioner is not able to procure competent legal service in Bombay; and (iii) that the atmosphere in Bombay is not congenial to a fair and impartial trial of the case against her.
Dismissing the petition, the Supreme Court gave certain directions and made strong observations to hold 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 powers of transfer. The Court also held that the sophisticated process of criminal trial certainly require competent legal service to present a party's case. If an accused person, Page 17 of 46 HC-NIC Page 17 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain court the whole Bar, for reasons of hostility or otherwise, refuses to defend an accused person, an extraordinary situation difficult to imagine, having regard to the ethics of the profession- it may well be put forward as a ground which merits the Court's attention. The Court held that in case of many controversial figures in public life, their presence in a public place gathers partisans for and against, leading to cries and catcalls or 'jais' or 'zindabads'. Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention when they appear in cities or even in a court. And when unkempt crowds press into a court hall, it is possible that some pushing, some nudging, some brash ogling or angry staring may occur in the rough and tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the peace inside the court has broken down, that calm inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for judge, parties, advocates and witnesses has ceased to exist.
At the same time the Court also held that it cannot view with unconcern the potentiality of a flare up and Page 18 of 46 HC-NIC Page 18 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Engineered fury may paralyse a party's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical maneuvers or sound and fury of the senseless populace, casualty is of the rule of law. It emphasized that even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate. Relevant portion of the said judgment is reproduced hereunder:-
"7. Nevertheless, we cannot view with unconcern the potentiality of a flare-up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of E law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff or toughs being turned against him to unnerve him as party or witness or advocate. Physical violence Page 19 of 46 HC-NIC Page 19 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER to a party, actual or imminent, is reprehensible when he seeks justice before a tribual.
Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manouvres in court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial.
7. The trial court should readily consider the liberal exercise of its power to grant for the accused exemption from personal appearance save on crucial occasions. Shri Tarkunde, for the respondent fairly agreed that it was the right thing to do and explained the special reason for its first rejection. If the application is again made, the magistrate will deal with it as we have indicated. This will remove much of the unsavoury sensationalism which the hearing may suffer from.
8. The magistrate is the master of the orderly conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow-Page 20 of 46
HC-NIC Page 20 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER beating. It is his duty to clear the court of confusion, yelling and nerve-racking gestures which mar the serious tone of judicial hearing. The officials whose duty is to keep the public peace shall, on requisition, be at the command of the court to help it run its process smoothly. When the situation gets out of hand the remedy of transfer surgery may be prescribed. Every fleeting rumpus should not lead. to a removal of the case as it may prove to be a frequent surrender of justice to commotion. The magistrate shall take measures to enforce conditions where the court function free and fair and agitational or muscle tactics yield no dividends. If that fails, the parties have freedom to renew their motion under s. 406 of the Criminal Procedure Code. For, where tranquil court justice is a casualty the collapse of our constitutional order is an inevitability."
13. In the case of Zahira Habibulla Sheikh vs. State of Gujarat (supra) the Apex Court held that judicial criminal administration should be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards of the type prohibited by the mandate of the Constitution. Relevant paragraphs are reproduced hereunder:-
"33. The principle of fair Page 21 of 46 HC-NIC Page 21 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane J put it:
"It is desirable that the
requirement of fairness be
separately identified
since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law".
35. This Court has often emphasised that in a criminal Page 22 of 46 HC-NIC Page 22 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary Page 23 of 46 HC-NIC Page 23 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only Page 24 of 46 HC-NIC Page 24 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
14. The Apex Court thus has held that fair trial would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of a judicial calm. It would also mean trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. (emphasized supplied) Page 25 of 46 HC-NIC Page 25 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER
15. In the case of Central Bureau of Investigation (CBI) vs. Hopeson Ningshen and others (supra), the Apex Court was considering the transfer petition of CBI case from Manipur to Delhi under section 406 of the Code of Criminal Procedure, 1973. The respondent was accused of kidnapping and murder of three Government employees and in such circumstances, the Court held that in order to ensure that fair trial takes place, interests of all stakeholders, namely, the accused, witnesses, prosecutors, near relatives of victim, as well as society at large need to be accounted for. The Apex Court held thus:-
"14. We must reiterate that the foremost consideration for directing the transfer of cases under Section 406 of CrPC is to examine what is expedient in the ends of justice. This is selfevident from a bare reading of the relevant provision which states:
"406. Power of Supreme Court to transfer cases and appeals. - (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Page 26 of 46 HC-NIC Page 26 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER Court.
15. This court has of course given orders under the abovementioned provision in the past. Since this is a discretionary power, it may be instructive to refer to the following observations made in the matter reported as Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, (V.R. Krishna Iyer, J. at Paras. 2 and 5):
"2. 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 a party or easy availability of legal services or like minigrievances.
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. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried.Page 27 of 46
HC-NIC Page 27 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. ... 5. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of the court is obstructive of the course of justice and must surely be stamped out.
Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions Page 28 of 46 HC-NIC Page 28 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. ..."
16. The observations quoted above were also cited with approval in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 157, wherein the Court had also observed (Pasayat, J. at Para. 36):
"... It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned.
There can be no analytical, allcomprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a Page 29 of 46 HC-NIC Page 29 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
17. While there are several other instances where this Court has passed orders in exercise of the power contemplated by Section 406 of CrPC, the observations cited above are sufficient to guide the adjudication of the present case. In order to ensure that a fair trial takes place in the cases in question, we must account for the Page 30 of 46 HC-NIC Page 30 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER interests of all stakeholders, namely the accused, the witnesses, the prosecutors, the near relatives of the victims as well as society at large. We are indeed confronted with a complex situation where there is a certain degree of divergence in the interests of the respective stakeholders.
16. In the case of Nahar Singh Yadav and another vs. Union of India and others (supra), the Apex Court held that power under section 406 of the Code of Criminal Procedure is to be exercised sparingly and with great circumspection. Prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias or where it is necessary to provide credibility to trial. On facts held, apprehension entertained by CBI that trial of the case at Ghaziabad may not be fair, resulting in miscarriage of justice, is misplaced and cannot be accepted. The Court found that if such bald allegations are accepted without something more substantial, it would seriously undermine credibility and independence of entire judiciary of a State, Tribunals and Judiciary.
17. During the course of discussion, the Court reverted to the main issue of true and fair trial, which according to it is sine qua non of Article 21 of the Constitution. Unless there is an impartial and uninfluenced trial, which is the fundamental requirement of a fair Page 31 of 46 HC-NIC Page 31 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER trial, it may result into depriving of a person of not only to his personal liberty but also of his life. The Apex Court held as under:-
"21. Reverting to the main issue, a true and fair trial is sine qua non of Article 21 of the Constitution, which declares that:
"21. Protection of life and personal liberty- No person shall be deprived of his "life"
or "personal liberty" except according to the procedure established by law. It needs no emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 of the Cr.P.C. empowers this Court to transfer any case or appeal Page 32 of 46 HC-NIC Page 32 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court, to meet the ends of justice.
22. It is, however, the trite law that power under Section 406 of the Cr.P.C. has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well-
substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the public prosecutors as well.
23. In Zahira Habibulla H. Sheikh Vs. State of Gujarat & Ors.2, while explaining the import of the expression "fair trial", this Court had observed that:
"36... Fair trial obviously would mean a trial before an Page 33 of 46 HC-NIC Page 33 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
24. In Maneka Sanjay Gandhi & Anr. Vs. Rani Jethmalani, speaking for a bench of three learned Judges of this Court, V.R. Krishna Iyer, J. said:
"2. 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 a party or easy availability of legal services or like mini-grievances.
Something more substantial,
more compelling, more
imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the Page 34 of 46 HC-NIC Page 34 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances."
25. In Abdul Nazar Madani Vs. State of T.N. & Anr.4, dealing with a similar application, this Court had echoed the following views:
"7... 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. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not Page 35 of 46 HC-NIC Page 35 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."
26. In K. Anbazhagan Vs. Superintendent of Police & Ors.5, this Court had an occasion to deal with the prayer for transfer of a criminal trial from Tamil Nadu to another State mainly on the ground of apprehension of political interference in the trial. While finally directing the transfer of the case to the State of Karnataka, the Court observed thus:
"30. Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner."Page 36 of 46
HC-NIC Page 36 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER
18. It can thus be noted from these judgments that the Apex Court has time and again in all these judgments has held emphatically that the fair trial is the first necessity and imperative of dispensation of justice. Fair and impartial justice is the fundamental requirement of any criminal trial. Against fairness of the trial when questions are raised, the Court may have to consider the request of transfer as held in the case of Menaka Gandhi vs. Rani Jethmalani (supra), the Court is not to lead by some of the ground which may be putforward by the parties. There has to be some emphatic and overwhelming reasons for the Court to allow such transfer. It is also necessary to upkeep the rights of the accused to a fair trial if the administration in the Court is such where either on account of non-representation or because of absence of any requisite protection, the fair trial is not possible, the Court may have to consider the request of transfer.
19. At this stage the power of the High Court to transfer the case in appeals deserve consideration. Section 407 of the Code of Criminal Procedure provides for such powers. It states that whenever it is made to appear to the High Court that a fair and impartial inquiry or trial cannot be held in any criminal court subordinate thereto, or that some question of law of unusual difficulty is likely to arise; or that an order under this section is required by any provision of this Page 37 of 46 HC-NIC Page 37 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. The High Court may act either on the report of the lower Court or on an application of the party interested or on its own initiative.
20. Unless an application for such transfer has been made to the Sessions Judge and rejected by him, no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division. Evey application for an order under sub-section(1) of section 407 of the Code of Criminal Procedure shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. When an application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7) of the Code of Criminal Procedure. Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in Page 38 of 46 HC-NIC Page 38 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER the subordinate Court shall be stayed, in such terms as the High Court may think fit to impose.
21. With this position of the law, the facts in the instant case are resorted to essentially on the ground that there is no availability of the legal assistance to the petitioners. It is the case of the petitioners that with much difficulty, he could engage a lawyer, who had agreed to defend his case. However, he too has been persistently pressurized not to represent him.
22. Mr. Saad Khan, learned advocate who represented the petitioners also was before this Court. He had shown his inability to conduct the trial any further. He also pleaded this Court that let the matter be transferred, as it is impossible for him to conduct the case in the atmosphere in which the scenario that had emerged in the last adjournment. It is also to be noted that respondent No.2 herein with signatures of around 40 advocates on 24.9.2015 addressed an application to the President, Secretary and Committee members of the Ahmedabad Criminal Court Bar Association making a fervent request that nobody should represent the present petitioners since they filed a complaint as a counter-blast to the complaint filed by the present respondent and moreover respondent No.2 is Senior Member of the Boar, who has been arraigned as accused in this application. Reference of learned advocate Mr. Saad Kahan is Page 39 of 46 HC-NIC Page 39 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER also made in both the matters. It is alleged that he agreed to represent the petitioners with a view to tarnish the image of respondent No.2 . It is further alleged that necessary instruction also requires to be passed on to learned advocate Mr.Saad Kahan in this regard.
23. Learned advocate Mr. B.M.Gupta who the President of the said Bar Association has submitted that it is a matter of record that this application has been filed by the petitioners. He further made a statement at Bar that no such resolution is in existence, which precludes the advocates to appear for any of the accused or party, if one of the litigating parties is an advocate practicing at the Metropolitan Court. Nevertheless, as mentioned hereinabove, every attempt is made to ensure that no competent legal aid is made available to the petitioners. The petitioners, at paragraphs 4.5, 4.6,4.7 and 4.8 of the petition, have given description of what had transpired on 24.9.2015 and 8.10.2015. It is to be noted, at this stage, that the application was also given to the learned Metropolitan Magistrate, Ahmedabad when many members of the Bar and others who had accompanied respondent No.2 are alleged to have disturbed the equilibrium of the Court room. No order till date has been passed by the concerned Court.
24. It is necessary to refer to the order of this Court passed in earlier petitions being Special Criminal Application Nos.77 of 2015 Page 40 of 46 HC-NIC Page 40 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER and 79 of 2015. This Court permitted the petitioners to make a request to the concerned police officer for providing police protection at their own cost and further directed that if such an application is filed, the same shall be considered in accordance with law. Pursuant to such direction on 1.9.2015 of this Court, at the time of hearing on 24.9.2015 and 8.10.2015 three police personnels for the purpose of protection were provided on application made by the petitioners to the concerned police station. Learned advocate Mr. Khan, who represented the present petitioners, also had said that in presence of these security personnels, the lives of the petitioners were under threat because none of those police personnels, was in a position to stop the ruckus that had been created.
It is simply unthinkable and unpalatable that merely because respondent No.2 is an advocate practicing at Ahmedabad Metropolitan Court with a standing of about 21 years, the petitioners should be deprived of a legal aid and also a fair trial. As held by the Apex Court in the case of Maneka Sanjay Gandhi v. Rani Jethmalani (supra) that even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate. It is reprehensible that a person who is seeking justice before the Criminal Court is finding Page 41 of 46 HC-NIC Page 41 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER actual or eminent threat of physical injury and is also finding his life endangered. The Court proceedings shall not be stayed by creating a confusion and by yelling and nerve- racking gestures which mar the serious tone of judicial hearing nor can it be stopped by disturbing the peace during the course of the trial.
25. In the opinion of this Court, the grounds made in this petition are substantial to necessitate the exercise of the powers of transfer both on the ground of depriving the facility of the competent legal aid to the petitioners as also not providing an atmosphere which is congenial for the fair trial. It is to be deprecated that some members of this noble profession would choose to deprive the citizens of this country the mandate of the Constitution of India, which necessitates that nobody could be deprived of the life or liberty without following the due process of law. In a decision rendered by the Apex Court in the case of A.K. Gopalan vs. The State of Madras reported in AIR 1950 SC 27, it held that the right to consult and to be defended by the legal practitioner of his choice is mandatory.
26. The Apex Court also reiterated in the case of State of Madhya Pradesh vs. Shobharam reported in AIR 1966 SC 1910 that Article 21 of the Constitution emphasizes that no person shall be deprived of his life or personal liberty accept according to the procedure established by law.
Page 42 of 46HC-NIC Page 42 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER By various decisions, the Apex Court has held that legal aid for an accused person is a must. If a person is to be made to consult the counsel, breach of this safeguard to fair trial would invalidate the trial even if the accused did not ask for legal aid. Thus, the concept of fundamental right is pitched to this level.
27. Section 304 of the Code of Criminal Procedure also provides that where in a trial before the Court of Sessions, the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. Thus, when the horizon of free legal aid has been enlarged to an extent that now it has been made a part of a fundamental right and it is also held that the entitlement of the free legal aid is not dependent on the accused to make an application but the Court is obliged to provide the same as it is his right to get the free legal aid here is a scenario where the petitioners though are not claiming any free legal aid and are desirous of engaging a lawyer of their choice, which they are being deprived of and denied only on the ground that one of the litigating parties is an advocate. In the opinion of this Court, such an atmosphere is contrary to the democratic principles to which this country is wedded to. It is extremely saddening that the Court needs to pass such an Page 43 of 46 HC-NIC Page 43 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER order where one of the litigating parties is a member of this profession who is supposed to be well aware of those laudable principles which are meant for every citizen of this country.
8. In the opinion of this Court from the detailed facts narrated in the earlier paragraphs and the law that has been discussed herein above, it would be expedient and in the interest of justice to transfer this case. This Court also cannot be oblivious of the fact that the petitioner approached this Court, after the concerned Principal District Judge from whom he sought protection had chosen to drive him to the concerned police station rather than approaching this entire issue with requisite sensitivity and addressing the same to upkeep the dignity of every litigant of this system. Whenever an incident of this nature occurs in the Court room and even outside the Court room and a request is made by the parties concerned, it is utmost necessary that the Presiding Officer of the concerned Court to act to ensure that a fair Page 44 of 46 HC-NIC Page 44 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER trial is conducted. Assuming that there was no written request for police protection, then also, the Court cannot be a mute spectator and wait for an application to come forward. A duty is cast on the Court to act in the interest of justice, as also to act to protect the lives of the parties and also to maintain their dignity. Merely because one of the parties is either overpowering or having dominant position, the Court cannot allow to continue such an imbalanced affair.
9. In the instant case, this Court has noticed that because of the approach of some of the supporting advocates, it has become impossible for the petitioner to continue to defend his case in an atmosphere which is free of any turmoil and is conducive for seeking justice.
Therefore, it would be in the fitness of the things to direct the transfer of the case.
10. In the result, the following order:
Page 45 of 46HC-NIC Page 45 of 46 Created On Sat Sep 10 02:26:12 IST 2016 R/CR.MA/18022/2015 ORDER This application is ALLOWED and the proceedings of Criminal Case No. 11997 of 2012 are TRANSFERRED from the Court of the 6th Additional Civil Judge and JMFC, Court No. 702, Ahmedabad (Rural) to District Court, Gandhinagar.
It is directed that the District Court at Gandhinagar shall ensure the protection of the petitioner. To ensure the safety of the petitioner requisite measures shall be taken by the concerned Court. The entire record of the Criminal Case No.11997 of 2012 shall be transferred to the District Court, Gandhinagar, within a period of 15 days from the date of receipt of a copy of this order.
(MS SONIA GOKANI, J.) UMESH Page 46 of 46 HC-NIC Page 46 of 46 Created On Sat Sep 10 02:26:12 IST 2016