Allahabad High Court
Amit vs State Of U.P. And Another on 27 June, 2014
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 43 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 297 of 2014 Applicant :- Amit Opposite Party :- State Of U.P. And Another Counsel for Applicant :- D.R. Chaudhary Hon'ble Karuna Nand Bajpayee,J.
This transfer application seeks the quashing of order dated 13.06.2014 passed by the Sessions Judge, Meerut whereby the Transfer Application No.257 of 2014 (Amit vs. State of U.P.) moved by applicant-accused was rejected.
Heard learned counsel for the petitioner as well as learned A.G.A. Record has been perused.
It seems that a criminal trial is pending in the Court of Special Judge (E.C. Act), Meerut u/s 302, 307, 452, 504, 506, 506/34 I.P.C. relating to Case Crime No.524 of 2007, Police Station-Daurala. The accused-applicant Amit appears to have had a grievance against the Presiding Officer on certain grounds which are tantamount to serious allegations against his fair attitude and integrity both. Apart from this the grievance of the accused also seems to have emanated from certain adverse expressions allegedly given by the Presiding Officer during the course of hearing in the court regarding the merits and ultimate bleak prospects of the case. The details of the facts alleged by the accused- applicant against the trial Judge were narrated in the transfer application which was moved before the court of sessions. The application was opposed tooth and nail by D.G.C. (Crl.) and when the court of sessions adverted its judicial mind on the averments made in the application moved against the Presiding Officer, he was of the view that the allegations were so patently absurd and the insinuations so improbable that they deserved not only outright rejection off the cuff but even this much was not required that the Presiding Officer should be called upon to furnish his comments on the allegations which were levelled against him. Certain case law of this High Court in this regard was also relied upon by the court of sessions while rejecting the transfer application which it did.
Learned counsel appearing on behalf of the applicant has been very fair in his submissions who presented a very balanced view of the matter. He has pointed out the fact that the accused was suffering incarceration for last several years and the offences for which he was being tried are also of the gravest nature. But it has been emphasized by the counsel that, to quote his own words, 'even the devil ought to be given his due.' The time honoured conventional concept that 'justice should not only be done it should also appear to have been done' has been strongly relied upon. It has been conceded by the counsel that even if the view taken by the Sessions Judge while rejecting the application be deemed, for the sake of argument, to be correct even then the order ought to have been passed at least after calling forth the comments of the Presiding Officer on the insinuations levelled against him. The unilateral rejection of the transfer application without even inviting the comments of the Presiding Officer seems to be, according to the counsel, a judicial order divested of its judiciousness. It is chiefly on this ground that the impugned order has been assailed. It has also been argued that if rightly or wrongly the accused had developed some apprehension and feared that a fair verdict may not be pronounced by the Presiding Officer then there was no harm in transferring the case to any other court of that district.
I have cogitated upon the submissions made at the bar and have perused the record in the light of the same. I agree with the view taken by the Sessions Judge that it was not necessary in law that whenever a transfer application is moved before the court, it should always without exception be attended with the procedure that comments should be called forth from the Presiding Officer in question whose fair integrity has been besmeared with foul allegations. I also agree with the view that at times the allegations may be so unfounded, so unsubstantiated, bristling with such improbabilities that no prudent man can ever justly arrive at the conclusion that they may be true and therefore in such cases it was very much within the rights of the court to disbelieve the indictment and reject the application without adopting such a course of procuring any explanation from the officer.
But this Court cannot be oblivious to many other facets of the case and the nature of controversy involved. There were allegations that the complainant of the case was on visiting terms with the officer and was seen coming out of his chambers. Because of complainant's proximity with the officer, it was further alleged that their were open expressions given from the complainant's side about the certainty of conviction in the case. Even the Presiding Officer is said to have been vocal about his preoccupied view regarding the guilt of the accused which is alleged to have been acquired by the Judge as a result of the aforesaid nasty-backdrop of facts indicating his unholy-nexus with the complainant. It were these allegations against the trial Judge which were not deemed to be even worth seeking any comments, much less than any explanation, from the Presiding Officer. May be, and it is quite possible, that the Sessions Judge dealing with the transfer application could have arrived at the same conclusion which he did in the light of the comments furnished by the Presiding Officer also, had they been called forth. But in that event it could not have given the accused an occasion to feel that his application has been decided in a biased or unilateral manner. The apprehension of the accused with regard to the judge's judicial infidelity might have been absolutely unfounded or may be that the comments or explanations that might have been proffered by the Presiding Officer could have satisfied the accused too about the illusory nature of his misgivings nurtured against the Presiding Officer. It is all about keeping the appearances intact and the procedure fare.
The accused-applicant while making the allegations against the lack of impartiality of the Trial Judge had acquired the status of a complainant and therefore had a right to expect that the charge laid by him shall be carried to a logical end in a non-partisan and equitable manner. It was immaterial how low and modestly placed was the person bringing the charge and how venerable and high ranking was the status of the man against whom the charge was brought.
Whether it is accused or the accuser both are treated with an even hand of justice that does not discriminate between low and high, through a procedure which contains all the trappings of fairness. That is the reason, and it does not need much elaboration on the point, as to why even the worst of the culprits have been given a fair chance to defend themselves and the administration of justice of this country has proved equal to the expectations of the highest judicial standards prevalent anywhere in the world by ensuring a fair trial and fair procedure of hearing in all cases of all kinds. The system of jurisprudence prevalent in the nation has not allowed to hang the culprits then and there without a full-fledged fair trial even in cases where the offences were committed in full public gaze and the offenders were arrested on the spot red-handed. Justice no doubt was done in all such cases and condign punishment awarded, but it was done in a manner that truly made it appear to have been done also. Even the perpetrators of worst kinds of injustice were not denied the satisfaction of having been dealt with justly by the law of the land and its procedure. That is why there was all the more reason to probe and deal with the indictment brought by the accused-applicant with much more circumspection, probity and judicial sensitivity. It is a matter of contentment and judicial pride both that our country has kept alive its highest traditions intact in the process of administering justice. That has been the high hall-mark and majesty of law. The edifice of justice should not only have an exquisite interior, it must also keep up all its exterior contours intact, unblemished and beyond reproach.
May be the Presiding Officer seized with the trial had an upright bright reputation and who else could have known it better than the Sessions Judge who is the administrative head of district judiciary. That impeccable impression might have prompted the Sessions Judge to dismiss the application in limine summarily. But such an attitude and manner of dealing with the charge is not unlikely to give rise and inculcate a further misimpression in the mind of the applicant that some favourable predilection towards the fellow member of judicial fraternity has fettered a dispassionate probe into the matter or that a protective propensity towards the members of his own class has unjustly prompted the court to rubbish the allegations made against the Presiding Officer. Nothing shall corrode the public faith in the institution more deleteriously than such an impression if it goes out. After all the insinuations, however oblique they might have been, were made before a competent court seeking adjudication upon the same. The Sessions Judge would have done well, had he solicited the comments from the Presiding Officer. At least a denial ought to have been sought. That would have been a far more preferable course and could have lent a better judicious countenance to the verdict in question.
It is not always a good reason for not doing something because it was not mandatory to do so under law. At times 'obedience to the unenforceable' is much more important and crucial for the upkeep of the resplendent judicial heritage bequeathed to us through generations under which even the weakest should feel equal, safe and undiscriminated. The court ought to have been extra cautious and conscious both as it was dealing with a matter in which one of the parties involved was his own judicial colleague.
It is no doubt true that preserving the honour and dignity of fellow judicial officers against the reckless and irresponsible innuendoes is also the administrative obligation and judicial responsibility of the Sessions Judge. But as has been said above, it is all about striking a balance and a question of finding out an optimum desired proportion. In fact it was very much open and possible both that a conclusive finding about the mandacity of the slanderous allegations and the motivating malice behind making them could have persuaded the court below to initiate and set in motion proceedings against the accused-applicant in accordance with law. After all it was a serious business and the allegations levelled against the judicial officer did have a scandalizing effect and were certainly having a tendency to lower the prestige of the Court. The proof of truthfulness or a bonafide belief in the truthfulness of the charge could have been the only possible defence available to the accused. But the extreme step of initiating proceedings against the applicant could also not have been taken up without a full-fledged and much more comprehensive inquiry into the matter after providing adequate opportunity of hearing to the complainant and Presiding Officer both. But that being the arena of judicial discretion of the Sessions Judge, this Court does not propose to meddle with the same and leaves it entirely up to him to adopt whatever adequate course commends itself to him as 'judicially-just' and 'administratively-pragmatic' both.
At any rate, this Court is of the view that the transfer application ought to have been decided after inviting comments from the Presiding Officer and complainant both. Such a procedure would have been far more apt, fair and equitable.
In the light of what has been discussed above the impugned order is hereby set aside. The matter is remanded back to be heard afresh in the light of what has been observed above.
The application stands allowed.
It is clarified that this Court has abstained itself from delving into the inherent merits of the matter and any expression given in the order must not be construed to the prejudice of either party.
Order Date :- 27.6.2014 M. Kumar