Madhya Pradesh High Court
Chetram Gendlal Gouli vs Ramdin Kunji Gouli And Ors. on 23 April, 1994
Equivalent citations: 1995(0)MPLJ532
ORDER R.P. Awasthy, J.
1. It is a petition filed under Section 407, Criminal Procedure Code for transferring the Sessions Trials Nos. 27/93, 28/93 and 29/93 (arising out of one and the same incident) from the Court of the learned A.J. to S.J., Betul, posted at Multai.
2. The grounds on which the transfer of the said trials has been sought arc as follows :-
(i) The Presiding Officer of the Court concerned is taking very keen and special interest in the said sessions trials and is giving very short adjournments for examination of prosecution witnesses, which is said to be unusual.
(ii) The close relation of the accused viz. Bharat has proclaimed that he has won over all (concerned) and therefore, nothing is going to happen in the case against the accused/non-applicants.
(iii) The petitioner has engaged a private counsel (private counsel for short) but the learned prosecutor has not co-operated with him. The learned counsel privately engaged by the petitioner raised legal and substantial objections but the Presiding Officer of the court did not pay any heed to them and directed that the said objections may be raised through the public prosecutor who refused to do so.
(iv) The petitioner lodged a complaint with the public prosecutor as well as the Presiding Officer of the court that the persons belonging to the party of the accused, were openly and directly threatening the prosecution witnesses, but, the Presiding Officer of the court did not pay any heed to the said complaint and protection was not being provided to the prosecution witnesses.
(v) Prosecution witness No. 5, Boota Singh was not summoned to appear on 17th of March, 1993. However, he made his appearance on the said date. It was within the knowledge of the Presiding Officer of the court that the said witness was abducted by the members of the party of the accused, and, brought before the court. In spite of it, the said witness was examined for the prosecution on the said date viz 17-3-1993. Soon thereafter the petitioner filed a petition to transfer the said cases from the said court.
(vi) The counsel for the accused made an oral prayer that the case file in possession of the private counsel may be placed on record. The private counsel requested that a written application may be obtained from the counsel for the accused. However, the said fact was mentioned in the order-sheet only and no written application for the said purpose was obtained.
(vii) The statement of the present petitioner was not recorded correctly.
3. On the basis of the said allegations, it has been prayed that the sessions trials referred above may be transferred to some other court.
4. In his comments the learned Presiding Officer of the Court has mentioned that his disposal is 200% in every month. He has always given priority to such cases in which the accused are undertrial prisoners. The allegations levelled against him are totally baseless. However, he has no objection if the case is transferred from the court of which he is a Presiding Officer to any other court.
5. Comments of Additional Government Pleader have also been filed in the relevant Criminal Misc. No. 11/93 in which the petition filed under Section 408 by the present petitioner was rejected by the learned Sessions Judge.
6. To support the first ground certified copies of two order- sheets of 2 sessions trials have been filed. In this regard, it has to be seen that in sessions trial No. 115/91 a longer date was given on 18-1-1992 not by the Presiding Officer of the court but by the Reader of the court. The order-sheets of sessions trial No. 34/91 supports the contention of the learned Presiding Officer of the court who has given quite short adjournments in the case where the accused was confined in jail. In this regard, it has to be seen that in spite of best and bona fide efforts of a Presiding Officer of a court there may be few cases in which in spite of his best efforts the adjournment of some- what longer date is inevitable due to non-availability of the working days on which the evidence of the witnesses can be recorded.
7. Certified copies of 8 other sessions trials have been filed by the learned counsel for the non-applicants which substantiates the assertion of the learned Presiding Officer that he tries to give only short adjournments invariably in all such cases in which the accused are undertrial prisoners. Therefore, if under the given circumstances, the learned Presiding Officer of the court concerned has shown keen interest in disposing of sessions trials of heinous murders of 3 persons and an attempt to commit murder of the fourth, the said fact has to be commended and appreciated rather than to be frowned upon or viewed with suspicion. It has also to be seen that there are 11 under- trial prisoners who are under custody in connection with the said sessions trials and therefore, the said trials deserve as much priority as may be possible.
8. Regarding second ground, I totally agree with the learned Sessions Judge that had Bharat or for that matter any relation of the accused would have had proclaimed it by the beat of drum. The said assertion is therefore totally unbelievable. For the sake of arguments even it be assumed that Bharat did say so, the Presiding Officer of the court concerned cannot be made responsible for a statement made by a totally unconcerned person. If on such a ground, sessions trial or even any other case is transferred from one court to other, it would be very easy to manipulate such transfers.
9. As regards third ground, in my opinion, this seems to be the main cause for the present transfer petition. It has been specifically mentioned in this petition that the applicant has engaged a private counsel but "the learned prosecutor has not co-operated with him". From the said assertion itself it is clear that privately engaged counsel desires or thinks that it should be the Government pleader who should co-operate with him and it is not the privately engaged counsel who should assist the Government pleader.
10. Though it is not always, yet, in few cases, it may happen that there may be prejudices regarding seniority etc. of a local and privately engaged lawyer against a Government pleader. In few cases, it is also probable that there may be grievance of such a privately engaged counsel regarding the appointment of a particular advocate as a Government pleader. On account of such prejudice, the said privately engaged counsel may think it as a matter of right that it is the Government pleader who should give the entire support and co-operation to the said privately engaged counsel and conduct the trial under his subordination and guidance.
11. It may be pertinent and relevant to mention here that I had the occasions of seeing some very senior and seasoned advocates giving assistance to the Government pleader in conduction of sessions trials. While giving such assistance they never caused hurt to the prestige and honour of the office of the Government pleader and without causing any such hurt to prestige of the said office they provided such assistance to the Government pleader that the trial was conducted in such a manner as it should have been. If there is clash of egos on account of a counsel being privately engaged by the victim or his relations, then the step of engaging a private counsel may not yield a fruitful result. It may, on the other hand, cause harm or damage to the conduction of prosecution case.
12. As the case may be in the present case, there is not a single suggestion as to what relevant material aspect was suggested to the Government pleader and he did not pay any attention to it. The law requires that privately engaged counsel would merely assist the Government pleader but the overall charge of conducting the trial would be in the hands of Government pleader.
13. Regarding the allegation No. 4, it has to be seen that at times it is probable that one party may file an application to the effect that the relatives of the accused are threatening the prosecution witnesses, simply to prejudice the mind of the Court. Therefore, it is always considered safer, whenever any such application is filed to forward the said petition to the S.O. of P.S. concerned for enquiring into the matter. It seems that the Presiding Officer of the court concerned rightly advised the person who made such a complaint before him to lodge a report in the police station. Therefore, on this ground also it cannot be said that the Presiding Officer is in any way biased against the complainant. It has also to be seen that the application to the effect that the witnesses were being threatened by the relatives of the accused was filed on that very date on which a petition for transferring the sessions trial was moved.
14. Regarding examination of Boota Singh, it has to be seen that it is not the contention of the petitioner that he was not a person who was cited as a witness by the prosecution. Therefore, there is absolutely nothing wrong if the said witness was produced by the learned Government pleader and he was examined by the court. The privately engaged counsel must have had remained present when such a material witness was examined. If the said witness was abducted by the relatives of the accused or had not received the summons for appearance on that date, he could have had suggested the Government pleader to put the said questions to the said witness in his cross-examination. If the Government pleader would not have had put the said question in the cross- examination of Boota Singh then privately engaged counsel could not have requested the court that the said questions were very material and therefore, the said questions may be put as court questions. In any case the Presiding Officer of the court cannot be criticized if Boota Singh being cited as a witness, was examined by the Govt. pleader but the said witness turned hostile.
15. The ground No. 5 is so baseless that it does not deserve any discussion.
16. If the statement of the complainant was not recorded faithfully by the court concerned the said witness ought to have had immediately pointed out the said fact in writing to the Presiding Officer of the court. Therefore, it is not believable that the statement given by the complainant was not faithfully and correctly recorded by the trial court.
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 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 v. State of M.P., 1965 MPLJ, Short Note 39 and Shambhoodayal v. State of M.P. and Ors., 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.
18. In the result the present petition filed under Section 407 of the Criminal Procedure Code fails and is rejected.
19. Copy of this order be sent forthwith to the Presiding Officer of the court concerned i.e. the court of A.J. to S.J., Betul posted at Multai. The stay granted in the case stands automatically vacated.