Andhra Pradesh High Court - Amravati
Ajjarapu Vishnu Varma vs The State Of Andhra Pradesh on 4 March, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Transfer Criminal Petition No.64 of 2019
ORDER:
This Transfer Criminal Petition, under Section 407 of Cr.P.C., is filed by the petitioner seeking transfer of Sessions Case No.71 of 2014 from the file of the V Additional Sessions Judge-cum-Special Court for trial of offences against Women, Eluru, West Godavari District, to any other Special Court for trial of offences against women or any other Sessions Court in Eluru, West Godavari District.
Facts germane to dispose of this Transfer Criminal Petition may briefly be stated as follows:
The petitioner is the sole accused in Sessions Case No.71 of 2014 on the file of the V Additional Sessions Judge-cum-
Special Court for trial of offences against Women, Eluru, West Godavari District. He is being prosecuted for the offences punishable under Sections 417, 376 and 312 of IPC. Originally the case was tried in the Court of the Assistant Sessions Judge, Narsapuram, West Godavari District. After the Special Court for trial of offences against women was established in the District Headquarters in Eluru, West Godavari District, the said case was transferred to the Special Court. It appears that about nine witnesses were examined in the Assistant Sessions Judge's 1 Court, Narsapuram. At that stage, the case was transferred to the Special Court. Before the Special Court, it appears that two witnesses are examined. At that stage, a petition under Section 311 of Cr.P.C. to recall PW.10 for the purpose of cross-
examination and a petition under Section 227 of Cr.P.C. to discharge the accused from the case were filed by the accused. The petition filed under Section 311 Cr.P.C. was allowed and the petition filed under Section 227 Cr.P.C., filed after framing of the charges and after trial has commenced, was dismissed.
While the matter is pending trial before the Special Court, the petitioner, who is the accused in the said case, filed this petition under Section 407 Cr.P.C. before this Court seeking transfer of the said case to any other Special Court in other District or to any Sessions Court in Eluru, West Godavari District on the ground that the learned Presiding Officer of the said Court, after adjourning the mater as the witnesses did not attend the Court, called the petitioner while he was leaving the Court and stated that it is always better for him to compromise the crime with the defacto complainant by marrying her since the statements of the prosecution witnesses are against him in all aspects and that the learned Judge stated that normally all such cases end in conviction and no acquittal under any circumstances will be passed. The transfer of the case is also 2 sought on the ground that when the defence counsel could not attend the Court on 29.04.2019, as his wife was bedridden, the learned Judge insisted to proceed with the trial and he also closed the evidence of prosecution witnesses without deferring the cross-examination of witnesses. So, the petitioner is constrained to change the counsel. Therefore, on the above grounds the petitioner sought transfer of the said case from one Court to another Court as stated above.
Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the 1st respondent-State and the learned counsel for the 2nd respondent-de facto complainant.
In view of the fact that the transfer was sought by the petitioner making an allegation against the Presiding Officer of the Court alleging that he advised the petitioner to enter into compromise with the defacto complainant by marrying her, and stated that all such cases normally end in conviction and no acquittal will be passed, this Court has called for the remarks of the Presiding Officer to know the version of the Presiding Officer. Pursuant to the direction of this Court, the Presiding Officer of the said Court has submitted a detailed remarks wherein he categorically denied that he has advised the accused in the said case to enter into compromise stating that it is better for him to enter into compromise in such cases. The learned Judge at page 3 3 of his remarks stated as follows:
"...It is absolutely false to say that the undersigned being Presiding Officer of the Special Court for Trial of offences against Women-cum-V Addl. District Judge's Court, West Godavari, Eluru is openly proclaiming that it is always better for petitioner/accused to compromise the matter with the complainant by marrying her since the statements of prosecution witnesses are against him in all aspects and the allegation that the undersigned proclaimed in open Court that any offences which are alleged against petitioner/accused normally ended in conviction and no acquittal under any circumstances will be granted and further even on the earlier adjournment also, the same situation had arisen to his counsel on record."
Thus, it is evident from the aforesaid remarks of the learned Judge of the said Court, he flatly denied making any such comments or advising the accused to enter into compromise stating that all such cases would normally end in conviction and no order of acquittal would be passed in such cases.
Though the petitioner has filed two affidavits of his counsel appearing on his behalf in the trial Court and another advocate, the first affidavit of one Konduri Anantha Padmanabham, Advocate, who is appearing for the accused, is of no avail to the case of the petitioner to substantiate his contention that the learned Presiding Officer made any such comments or advised him to compromise the case. A perusal of the contents of the 4 affidavit shows that the said Advocate was not actually present in the Court when the learned Presiding Officer made the alleged comments or advice to the accused to enter into compromise with the defacto complainant. The contents of his affidavit show that the petitioner, who is his client, informed him about the said happenings in the said Court. So, he cannot be treated as a witness to the said happenings, if any, in the said Court. So, this evidence is not useful to the petitioner to prove the said allegations made against the learned Presiding Officer.
The other affidavit relates to one Mohammed Ayub, a junior advocate. Though he stated that the learned Judge called back the accused after adjourning the case and asked him to compromise the case stating that he is going to lose his better future prospects by facing the case and if it happens so that he may be put behind the bars, the version stated by him in his affidavit is found to be absolutely inconsistent with the version given by the petitioner in his petition. The petitioner stated that the learned Judge asked him to enter into a compromise with the defacto complainant by marrying her stating that all such cases would normally end in conviction and no acquittal order will be passed. However, in the said affidavit, the said version was not given by the said junior advocate and he stated that the learned Judge called him back and asked him to enter into 5 compromise stating that he may lose his future prospects. Therefore, this contradictory versions emanating from the record throws any amount of doubt regarding the presence of the junior advocate in the Court when the said case was called. Moreover, the said advocate did not give any details of the cases relating to him which are posted in the said Court on that day to prove his presence in the Court on that day. So, this affidavit cannot be relied on for the purpose of proving the wild allegations made by the accused against the Presiding Officer of this Court. Therefore, this Court has absolutely no hesitation to hold that the petitioner miserably failed to substantiate the said allegations made against the Presiding Officer, on the basis of which, he is now seeking transfer of the said case. As already noticed supra, the learned Presiding Officer of the said Court denied making any such comments or advices in his remarks. The petitioner failed to substantiate the said allegation.
Therefore, it is evident that only for the purpose of stalling the proceedings in the said Court and to seek transfer of the said case from that Court to another Court to protract the trial of the said case, it appears that the present Transfer Criminal Petition is filed seeking transfer of the case from one Court to another Court.
There are other circumstances emanating from the record 6 which lends support in arriving at the said finding. The remarks of the learned Presiding Officer reveal that after the trial of the case commenced and almost after nine witnesses were examined, the petitioner has filed a petition under Section 227 Cr.P.C. which is a peculiar petition filed after commencement of the trial to discharge him. Thereafter, he has also filed a petition under Section 311 Cr.P.C. to recall the witnesses etc. These facts show that the petitioner is making a deliberate attempt to delay and elongate the trial of the case on one pretext or the other. Therefore, as the Presiding Officer has been proceeding with the trial of the case as per the schedule, it is evident that he has come-up with this petition with false allegations to seek transfer of the said case.
Therefore, in the light of the aforesaid discussion, the judgment relied on by the learned counsel for the petitioner, in the case of Usmangani Adambhai Vahora v. State of Gujarat is not applicable to the present facts of the case. Even in the said judgment also the Supreme Court held that the apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises.
So, it is clear from the ratio laid down by the Apex Court in the above judgment that there must be a reasonable 7 apprehension that the accused may not get a fair and impartial trial. The apprehension cannot be on imaginary grounds based upon conjectures and surmises. In the instant case, there is absolutely no ground to hold that the apprehension of the petitioner that he may not get a fair and impartial trial is a reasonable apprehension. In fact, the ground urged by him is found to be a false ground.
On the other hand, the judgment relied on by the learned counsel for the 2nd respondent-de facto complainant, in the case of Ashok Malhotra v. CBI appears to be relevant to the facts of the case. At para.6 of the said judgment, the Delhi High Court held as follows:
"Having gone through the transfer petition filed before the District & Sessions Judge and also the instant petition and after hearing the learned senior counsel for the petitioner, nothing could be seen warranting reasonable apprehension as alleged. The Special Judge expediting the case by giving short dates and even at times, not accommodating frequent pass-overs was perceived as not being fair. It is experienced that similar causes are being mentioned as grounds for seeking transfers. Undisputedly, there is no allegation regarding efficiency or integrity of the Special Judge, who is known to be a judge of repute. The only grievance seems to be nothing, but lack of understanding by the petitioner to engender suspicion and distrust towards him. There are no two opinions that the use of strong language by a court is never calculated to satisfy the litigant before it. Sometimes, an officer is bound to feel strongly on a particular occasion, but that in fact, is the testing time for him. In such circumstances, he can remain strong and firm even without raising his voice to give rise to cause of apprehension in the mind of 8 a party. Otherwise also, the calm state of mind is absolutely essential for all the stakeholders of the administration of justice. In the instant case, the petitioner seems to have unnecessarily carried and spitted venom without any foundation of any apprehension against a judge who enjoys the absolute reputation of integrity and efficiency."
Therefore, in the light of the above discussion, as this Court do not see any valid ground to order for transfer of the case as sought for by the petitioner, this Transfer Criminal Petition absolutely lacks merit to entertain the same.
In the result, the Transfer Criminal Petition is dismissed. Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:04-03-2020.
cs 9