Allahabad High Court
Ram Palat Pandey vs State Of U.P. on 19 March, 2021
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 31 Case :- U/S 407 CR.P.C. No. - 14 of 2021 Applicant :- Ram Palat Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Kunwar Sushant Prakash,Anil Pratap Singh,Pradeep Rastogi Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
This petition under Section 407 Cr.P.C. has been filed by the applicant with a prayer to transfer the Criminal Case No. 37/2007 in Case Crime No. 1325 of 2003 under Sections 420, 467, 468 and 7/13(1)d/13(2) The Prevention of Corruption Act, 1988, P.S. Nabawad District Jhansi pending in the Court of Additional Sessions Judge/Special Judge, Prevention of Corruption Act-9 Lucknow to any other court of Special Judge under The Prevention of Corruption Act, 1988 and further to stay the proceedings in the aforesaid case.
It is submitted by the learned counsel for the applicant that the Court before which the instance case is pending against applicant, is acting and proceedings with the trial of the case in arbitrary, and prejudiced manner by ignoring principals and mandates of law and procedure.
It is further submitted that initially on 3.3.2020, the evidence of witness PW-8 was closed. Again the court recorded his evidence on 21.12.2020. The Court rejected the adjournment application of applicant with heavy cost and further due to absence of counsel for the applicant, the adjournment moved by applicant was rejected by the court. An opportunity of cross examination of witnesses was also closed. The evidence of PW-10 was recorded by the trial court by secondary evidence without calling the death report of PW-10. Further on 12.1.2021, the adjournment application was rejected by the court and the bail of applicant also got cancelled and further on the absence of applicant, notices were issued to sureties. Therefore, the applicant moved an application before the Sessions Judge under Section 408 of Cr.P.C. but learned Sessions Judge without adjudicating the application on its merit passed an order dated 15.2.2021 only on the basis of notification dated 23.11.2020 issued by the State Government.
It is next submitted that the order dated 15.2.2021 passed by learned Sessions Judge was wrong and illegal even in existence of such notification, the Sessions Judge has power to transfer the case from one court to another court and the said notification cannot supersede the power of Sessions Judge.
Learned AGA has vehemently opposed the prayer of applicant and submitted that the order of the Sessions Judge is in accordance with the provision of Section 4 of the Prevention of Corruption Act, 1988. So far as the maintainability of application under Section 407 Cr.P.C. is concerned, applicant is failed to prove that the trial court is not conducting the trial in fair and impartial manner.
Heard learned counsel for the applicant, learned AGA and perused the record.
Learned counsel for the applicant has submitted that on 3.12.2021 when the witness PW-9 returned back without informing court and without completing his evidence, the court has passed the order to stay the payment of pension and issued non bailable warrant against the witness PW-9. The aforesaid order of the court has been annexed as Annexure-3 with the application. In this regard, the record shows that the witness was a retired public servant. Despite proper knowledge, the witness PW-9 after appearing before the court, has not given his evidence hence in such a situation, it is well within the jurisdiction of the court to pass a compelling order against witness, therefore, if the court issued non bailable warrant against witness just to procure his presence before the court to adduce evidence, no illegality found in the order of the court. The said order will never prejudice to accused persons because intention of court as appears was to take action for speedy disposal of the case which is in accordance with the provisions of Section 309 of Cr.P.C. as well as Section 4(4) of Prevention of Corruption Act.
Learned counsel for the applicant has further submitted that witness PW-8 was summoned on 3.3.2020 and on that very date his evidence was concluded and closed but again witness was present on 21.12.2020 that too after the lapse of more than nine months. The witness was present in court without following the proper procedure and without issuing summons. In such a way, his presence creates doubt in the mind of applicant/accused that trial of the case is not proceeding in fair manner.
A perusal of the record indicates that the evidence of witness PW-8 was concluded on 3.3.2020 including his cross examination. A copy of evidence of witness has been annexed as Annexure-4 with the application. The witness PW-8 further appeared on 21.12.2020 and in his reply in first question of his cross examination on 21.12.2020, he has stated that he had received the summon for appearance in court on 21.12.2020. Further, the witness has stated that he was present before the court for recording his statement on 3.3.2020 but inadvertently the charge sheet could not be exhibited, therefore, the court has summoned him again, therefore, he is present before the court today to record his evidence. The copies of above part of his statements are on record at page nos. 27 and 31 respectively. It shows that the witness has been summoned by the court on 21.12.2020 rightly and in accordance with law and no illegality is found in recording his evidence again. Witness PW-8 has explained his presence before the court. Even then, if any illegality is found, the prejudice person may challenge the same in proper proceeding before appropriate court. As a matter of fact, if there is any illegality in court proceeding, the same cannot be cured by moving a transfer application. It has also been found that after 3.3.2020, the country was facing the situation of pandemic of Covid-19 and the functioning of the court was also disturbed and if the witness came before court after relax from lockdown and at the starting of the normal functioning of the court then in that case, it cannot be said that the aforesaid delay of 9 months has been caused intentionally and just to prejudice the accused persons.
Learned counsel for the applicant again submitted that on 21.12.20220 the counsel for the applicant was not prepared to cross examine the witness PW-8, therefore, he moved the application for adjournment which was allowed by the court at the cost of Rs. 600/-. Further the trial court started by recording of evidence on daily basis, for no apparent reason. Learned counsel for the applicant has further submitted that after 21.12.2020 the case was further listed on 22.12.2020 and then further on 24.12.2020. On that day i.e. on 24.12.2020 which was just one day prior to winter vacation, the counsel for the applicant had gone out of station, therefore, an adjournment application was moved on behalf of applicant on 24.12.2020 but the same was rejected and the opportunity of cross examination to witness PW-8 has also been closed. In this regard, copies of orders dated 21.12.2020 and 22.12.2020 are annexed as Annexure-5 with the application and the copy of order dated 24.12.2020 is annexed as Annexure-9 to this application.
On the above point, It reveals from the record that on 21.12.2020 the witness PW-8 was present and his examination-in-chief was recorded then again the case was listed for 22.12.2020 for his cross examination. On 22.12.2020, the counsel for the applicant moved the exemption application for applicant/accused which got allowed by the court. The cross examination of witness PW-8 was recorded and for the rest evidence, the date 24.12.2020 was fixed. On 24.12.2020, the witness PW-10 was present, applicant was absent. An application for exemption from personal appearance of accused was also moved in case but none was present for cross examination the witness, on behalf of applicant Ram Palat Pandey, consequently, the court closed the opportunity of applicant/accused to cross examine the witness PW-10.
In above proceedings also, no illegality is found because, for proceeding with the trial, Section 309 of Cr.P.C. makes the provision which is as under:
"309. Power to postpone or adjourn proceedings.
(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under section 376 [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA or section 376DB of the Indian Penal Code (45 of 1860), the inquiry or trial shall] be completed within a period of two months from the date of filing of the charge sheet].
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
1 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.] 1[Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.] 2[Provided also that--
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a parity is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statementof the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused."
For the trial of cases under Prevention of Corruption cases, Section 4 of The Prevention of Corruption Act, 1988 also makes the provision which is as under:
"4. Cases triable by special Judges.--
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only.
(2)Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3)When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(4)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years:
Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so:
Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.]"
The trial of the case was pending since 2007. According to Section 309(1) of Cr.P.C. and Section 4(4) of The Prevention of Corruption Act, 1988, it is the intention of legislation that if the witness is present, the trial of the proceedings should be continued on day-to-day basis unless all the witnesses in attendance have been examined. The word 'shall' has been incorporated in sub clause 1 of Section 309 Cr.P.C. which makes the provision mandatory for the trial court, therefore, if the trial court has proceeded to record of evidence of witnesses on day-to-day basis, no illegality is found.
Further, Section 317 of Cr.P.c. makes provision that if the accused is represented by a pleader, the court may dispense with its attendance and proceed with trial in his absence also. The application for exemption from personal appearance and for adjournment showing absence of his counsel was moved by applicant on 24.12.2020 which is on record as Annexure-8. It has been mentioned in his application that applicant is unable to appear before the court due to his illness and his counsel is out of station, therefore, there was none to represent applicant on 24.12.2020. The witness PW-10 had come from Jhansi, therefore, if considering the provision of Section 309 Cr.P.C., the Court has closed the opportunity of cross examination of witness, then in that case, it cannot be said that any illegality has been committed by the court in proceeding the trial. The applicant cannot be prejudiced by the proceeding with case which is in accordance with the provisions of law.
Learned counsel for the applicant has further submitted that on 24.12.2020, the prosecution informed the court that witness PW-10, as was mentioned in charge sheet, has died, therefore, without calling the death report of witness, the court permitted to record the evidence through secondary evidence. On the above argument, the recording of evidence of PW-10 as secondary evidence by court is also not found illegal. The copy of evidence of PW-10 is annexed as Annexure-10 with the application. The witness has been produced to identify the writing and signature of Inspector Sudarshan Lal Awasthi. The witness has stated in his statement that said Sudarshan Lal Awasthi has died. The said witness PW-10 was a formal witness of prosecution. In criminal proceedings burden lies up on prosecution to prove his case, if any illegality is found regarding such proof in accordance with section 67 of Evidence Act, it will affect the prosecution's case. It is not the same as in the case of a deceased accused, because with the death of accused person, the proceedings stands abated, which has serious impact. Therefore, the strict proof regarding death of the accused is required to terminate the trial, on the basis of abatement. The situation is difference in case of death of a witness. The witness PW-10 had come from Jhansi to record his evidence, therefore, in absence of applicant or his lawyer if the opportunity of cross examination has been closed by the court treating default despite proper knowledge of the date and proceeding, then in that case, it cannot be said that any illegality has been committed by the court in passing the said order.
Learned counsel for the applicant has further submitted that on 7.1.2021 as the prosecution evidence was concluded, the court had fixed a date i.e. 12.1.2021 for recording the statement of accused under Section 313 Cr.P.C. and directed that all the accused shall be present in person before court on the next date fixed and no application for exemption/adjournment shall be permitted. A copy of order is annexed as Annexure-11 with the application. On the next date fixed, i.e. on 12.1.2021, since the applicant was ill, therefore, counsel for the applicant has moved the application for exemption from his personal appearance but the court rejected the said application and cancelled his bail. The order of the court is illegal. On the above submission, it reveals from the record that Annexure-11 is the copy of order dated 7.1.2021. Copies of exemption application dated 12.1.2021 and order dated 12.1.2021 are also annexed as Annexure-12 & 13. According to procedure, the stage for recording the statement of accused comes after conclusion of prosecution evidence and for such recording of statement under Section 313 of the Criminal Procedure Code, the presence of accused is must. The applicant/accused was moving his application for exemption from his presence before the court, since last dates and as such the trial court passed the order on 7.12.2021 that all the accused persons shall be present in person before the court so that trial of the case be proceeded to its conclusion. The application for exemption of personal appearance was moved by the counsel for the applicant on date fixed i.e. on 12.1.2021 stated that applicant is ill, hence, is unable to attend the court. At the stage of Section 313 of Cr.P.C., such application for exemption amounts to application for adjournment for which the court had passed the order on 7.12.2021 that no application for exemption/adjournment shall be allowed. The said order was well in the knowledge of applicant/accused. The order of court dated 12.1.2020 also indicates that since the applicant had not annexed any evidence of his illness with his application, therefore, the court has rejected his application for exemption from personal appearance and treating his wilful absence, cancelled his bail and issued non bailable warrant which is in accordance with law.
Learned counsel for the applicant has further submitted that on the next date of listing i.e. on 20.1.2021, since the applicant was out of station, therefore, again an application for his exemption from the personal appearance of applicant was moved by his counsel but same got rejected and the court issued notices to sureties which is also illegal. Copy of application for exemption of applicant dated 20.1.2021 is annexed as Annexure-12 as well as order passed by Court on 20.1.2021 is also annexed as Annexure-15 with the application. On the above point of argument, it reveals by the record, the said Annexure-15 shows that since the bail of the applicant was cancelled by the court vide order dated 12.1.2021, therefore, application for exemption of applicant from his personal appearance, was not maintainable, hence the court rejected the same. It has further been mentioned in order dated 20.1.2021 that in compliance of non bailable warrant police tried to serve the warrant on accused but since the present address of applicant/accused was changed, therefore, his non bailable warrant could not be served/executed. The applicant was also not present before the court, despite the knowledge of proceedings, which was in violation of the terms of bail bonds. In such a scenario, if the court has issued the notice to sureties to procure the presence of accused/applicant, it cannot be said that there was any illegality in the order of the court.
Under Section 407 of Cr.P.C. it is on applicant to establish that his trial is not being conducted with fair and impartial manner. The grounds taken in the present application under Section 407 as discussed above are insufficient to establish that his trial is not being proceeded fairly and impartial manner or proceedings of the court will cause prejudice to applicant/accused.
Learned counsel for the applicant has further submitted that on the same grounds as mentioned in the present application, an application was moved before Sessions Judge Lucknow, for transfer of the case from Court No. 9 to some other court but learned court did not consider the same rather learned Sessions Judge rejected the application only on the ground that by the notification dated 23.11.2020 trial of the said case has been conferred within the jurisdiction of Special Judge, Court No. 9, Prevention of Corruption Act, therefore, the case cannot be transferred from the court of Special Judge, Court No. 9, Prevention of Corruption Act. The copy of Notification No. U.O.64/VI-P-9-20-33G/9-Nyay-2Lucknow dated 23.11.2020 is annexed as Annexure-18 with the application.
The above notification has been issued by the State Government in exercise of powers under sub section (1) of section 3 and sub section (2) and (3) of section 4 of the Prevention of Corruption Act, 1988 read with Section 21 of General Clauses Act, 1987. By the said notification, the Governor has reallocated the territorial jurisdiction of 22 newly created courts of ADJ/Special Judges. According to said notification, for trying corruption cases against Politicians, Gazetted Officers of the Government, Police Officers etc. for district Jhansi the jurisdiction was conferred to the Special Judge, Court NO. 9 Prevention of Corruption Act, Lucknow. According to Section 4(2) the Prevention of Corruption Act, 1988, offence under the act shall be tried by the Special Judge, as may be specified in this behalf by the Government. The Government has specified the area and allocated the territorial jurisdiction of district Jhansi with the court of Special Judge, Court No. 9, Prevention of Corruption Act, Lucknow, hence the case cannot be transferred from that very court. The word 'shall' has been used by the legislation in sub clause (2) of Section 4 of Prevention of Corruption Act, 1988. In the cases of Dhananjaya Reddy Vs. State of Karnataka [2001 (4) SCC 9], Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala [2002 (1) SCC 633], Captain Sube Singh and others Vs. Lt. Governor of Delhi and others [2004 (6) SCC 440], Competent Authority Vs. Barangore Jute Factory and others [2005 (13) SCC 477], State of Jharkhand and others Vs. Ambay Cements and another [2005 (1) SCC 368] it has been laid down that"when law requires something to be done in a particular manner, things done otherwise are prohibited."
Hence the order passed by learned Sessions Judge Lucknow is not illegal.
In the case of J. Jayalalitha Vs. Union of India and another [1999 (5) SCC 138] it has been held by the Court in para 15 which is as under:
"15.Something more. The legislature has enacted the Prevention of Corruption Act and provided for speedy trial of offences punishable under the Act in public interest as it had become aware of rampant corruption amongst the public servants. While replacing the 1947 Act by the present Act the legislature wanted to make the provisions of the Act more effective and also to widen the scope of the Act by giving a wider definition to the term `public servant'. The reason is obvious. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country. It is in the context of public interest that we have to construe meaning of the word `necessary' appearing in Section 3. Considering the object and scheme of the Act and the context in which it is used it would mean requirement in public interest and cannot be said to be so vague as not to provide a good guideline. Thus the exercise of discretion by the Government under Section 3 has to be guided by the element of requirement in public interest."
The applicant has not challenged the validty of the said Notification No. U.O.64/VI-P-9-20-33G/9-Nyay-2Lucknow dated 23.11.2020.
In view of above, the present application under Section 407 Cr.P.C. as discussed above being devoid of merit and is liable to be rejected.
Accordingly, the application is hereby rejected.
Order Date :- 19.3.2021/AKK