Punjab-Haryana High Court
Amrik Kaur vs State Of Punjab And Anr on 15 September, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-27475 of 2014 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Crl. Misc. No. M-27475 of 2014
Amrik Kaur ..........Petitioner
Versus
State of Punjab and another ..........Respondents
2. Crl. Misc. No. M-27477 of 2014
Sucha Singh ..........Petitioner
Versus
State of Punjab and another ..........Respondents
DATE OF DECISION: 15.9.2014
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. M.S. Uppal, Advocate for
Mr. B.S. Baath, Advocate
for the petitioner in Crl. Misc. No. M-27475 of 2014 and
for respondent No.2 in Crl. Misc. No. M-27477 of 2014..
Mr. Mandeep S. Bedi, Senior Advocate with
Mr. Arnav Sood, Advocate
for the petitioner in Crl. Misc. No. M-27477 of 2014 and
for respondent No.2 in Crl. Misc. No. M-27475 of 2014.
Mr. Parupkar Singh Ghuman, Addl. A.G., Punjab.
****
DAYA CHAUDHARY, J.
This order shall dispose of two petitions bearing Crl. Misc. Nos. M-27475 and 27477 of 2014 as the issue involved in both the cases is with regard to transfer of cases pending between the same parties. However, for the sake of convenience, the facts are being extracted from Crl. Misc. No. M-27475 of 2014 (2) Crl. Misc. No. M-27475 of 2014.
The present petition has been filed under Section 407 read with Section 482 Cr.P.C. for transfer of criminal case titled as State Vs. Amrik Kaur and others in case FIR No. 65 dated 14.7.2013 registered under Sections 306/304-B IPC at Police Station Kahnuwan, Tehsil and District Gurdaspur pending before the Court of Sh. R.S. Rai, Additional Sessions Judge, Gurdaspur to be tried with criminal trial case titled State Vs. Sucha Singh and others in case FIR No. 83 dated 16.9.2011 registered under Section 306 IPC at Police Station Qadian, Tehsil Batala, District Gurdaspur being interlinked and interconnected.
Learned counsel for the petitioner contends that in both the cases, the parties are closely related to each other, therefore, it will be in the interest of justice as well as convenience of both the parties to transfer both the cases to either of the Court for trial. The prosecution witnesses as well as accused are related to each other and belong to same locality. It would avoid the inconsistency in the judgment and both the parties have no objection in case both the cases are heard by the same Court. He further submits that the application moved by the petitioner for transfer of trial to one Court was dismissed by learned Sessions Judge, Gurdaspur vide order dated 7.7.2014 without any justified reason. Learned counsel has also relied upon the judgments of Hon'ble the Apex Court in Monica Vs. Satish Sharma and another 2009 (4) RCR (Criminal) 854 and High Court of Gauhati in the case of Naba Welly and others Vs. State of Assam and another 2000 LawSuit (Gau) 207, in support of his contentions.
Learned counsel for the respondent-State submits that the application filed by the petitioner has rightly been dismissed as it is not a case of version and cross-version and also both the cases are different as some of the prosecution witnesses are also different. Learned counsel Crl. Misc. No. M-27475 of 2014 (3) further submits that both the cases pertain to different occurrences and it cannot be said that both the cases are interconnected or has similar facts. Learned State counsel has also relied upon the judgments of Hon'ble the Apex Court in the case of Satish Jaggi Vs. State of Chhattisgarh and others 2007 (2) RCR (Criminal) 116 and of this Court in Madan Lal Vs. CBI/ACU-III New Delhi 2004 (3) RCR (Criminal) 849, in support of his contentions.
Heard the arguments advanced by learned counsel for the parties and have also gone through the impugned order as well as other documents available on file.
Section 407 Cr.P.C. provides power to High Court to transfer cases and appeals, which is reproduced as under:-
407. Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court:
(a) and (b) ......
(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.
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 offences;
(ii)that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court sub ordinate 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 Crl. Misc. No. M-27475 of 2014 (4) Sessions; or
(iv)that any particular case or appeal be transferred to and tried before itself.
The purpose for enacting Section 407 Cr.P.C. is to confer powers upon the High Court to order transfer of the case in certain situations. The object of the Parliament while enacting such a provision is to manifest that the High Court should have sufficient powers to transfer the case to any other Court which in ordinary circumstances would not have jurisdiction to try the case. It is also to be considered that for the purpose of fair and impartial justice and to maintain the public confidence in fairness of the trial in case it appears to the Court that dispensation of the criminal justice is not effected in any manner and also for the convenience of the parties including the witnesses to be produced at the trial, then this power provided under Section 407 Cr.P.C. can be exercised. The similar view has been taken by Hon'ble the Apex Court in the case of Abdul Nazar Madani Vs. State of Tamil Nadu, 2000 (2) RCR (Criminal) 770, which is as under:-
"7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.PC. 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 Crl. Misc. No. M-27475 of 2014 (5) 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 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."
Gurpreet Kaur @ Gopi and Sucha Singh are accused in case FIR No. 83 dated 16.9.2011 under Section 306 IPC registered at Police Station Quadian, District Gurdaspur as alleged by Amrik Kaur after the death of her husband, namely, Mukhtiar Singh. Gurpreet Kaur @ Gopi committed suicide on 13.7.2013 in her parents house and in this regard FIR No. 65 dated 14.7.2013 was registered against petitioner-Amrik Kaur (mother-in-law), Harminder Kaur (sister-in-law), Dharminder Singh (husband), Satwinder Singh (brother-in-law), Rajender Pal Singh (jija) and Kirandeep Singh and Balkar Singh (neighbours) on the basis of statement of Sucha Singh-complainant. The said FIR was initially registered under Section 306-IPC and subsequently Section 304-B IPC was added by the police. During course of investigation, accused-Dharminder Singh, Rajinder Pal Singh, Harminder Kaur and Balkar Singh were found innocent and challan was presented against Amrik Kaur, Kirandeep Singh and Crl. Misc. No. M-27475 of 2014 (6) Satwinder Singh. In that case, charges were framed against said three accused and case is fixed for recording of the statements of prosecution witnesses before the Court of Additional Sessions Judge, Gurdaspur.
Case FIR No. 83 dated 16.9.2011 was registered under Section 306 IPC at Police Station Quadian against Sucha Singh and Gurpreet Kaur @ Gopi on the basis of statement made by Amrik Kaur after death of her husband, namely, Mukhtiar Singh. Deceased-Gurpreet Kaur @ Gopi is daughter-in-law of Amrik Kaur and sister-in-law of Satwinder Singh and Kirandeep Singh who are accused in case titled as State Vs. Amrik Kaur and others. In that case prosecution witnesses are Amrik Kaur, Kirandeep Singh, Rajinder Singh and Balkar Singh. It clearly shows that the prosecution witnesses and accused belong to the same family and another prosecution witness, namely, Balkar Singh, is the neighbour of the complainant as well as accused and hence belongs to the same locality.
It is well settled proposition of law that a litigant cannot choose a Bench of his choice and only under exceptional circumstances, the powers under Section 407 Cr.P.C. is to be exercised to transfer the trial of one case to another Court of competent jurisdiction, wherein, interconnected case is pending adjudication. It is also settled that in case of 'bias' and 'likelihood of bias' which is apparent on the basis of facts and circumstances of a case, the High Court invokes its discretionary power under Section 407 Cr.P.C. While exercising this power, the Court is to scrutinize each aspect with care and caution. It is also settled in various judgments of this Court as well as by Hon'ble the Apex Court that in case there are certain unfounded allegations levelled to get the desired relief from a Judge or the transfer application has been moved for some ulterior motive then this power is not be exercised. Hon'ble the Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1994 (6) SCC 19, has observed Crl. Misc. No. M-27475 of 2014 (7) as under:-
"Bias is the second limb of the natural justice. Prima facie no one should be a judge in what is to be regarded as 'sua causa', whether or not he is named as a party. The decision- maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or form a relationship with the subject-matter, from a close relationship or from a tenuous one."
Similarly in case of Jaswant Singh Vs. Virender Singh AIR 1995 Supreme Court 520, wherein certain unfounded allegations were levelled by an Advocate, who could not get the desired relief from a Judge, their Lordships of the Supreme Court held as under:-
"The transfer petition cast aspersions on the Judge of the High Court in the discharge of his judicial functions and had the tendency to scandalise the Court. It was an attempt to brow- beat the Judge of the High Court and cause interference in the conduct of a fair trial. It also tend to bring the authority and administration of law into disrespect. It was most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him was fair and reasonable. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the libgery of scandalising a Court by casting unwarranted, uncalled for and unjustified aspersions on the intergiry, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice."
Crl. Misc. No. M-27475 of 2014 (8) Hon'ble the Apex Court in the case of Gurcharan Dass Chadha Vs. State of Rajasthan (AIR 1966 SC 1418) has held that a case is transferred in case there is reasonable apprehension on the part of a party to a case that justice will not be done. The Court observed that a petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows that circumstances are as such, from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. The Court further held that it is one of the principles of the administration of justice that justice should not be done but is should be seen to be done.
Hon'ble the Apex Court in Abdul Nazar Madani's case (supra) has held that the purpose of the criminal law is to dispense fair and impartial justice uninfluenced by extraneous circumstances. The observation made by Hon'ble the Apex Court in said judgement are reproduced as under:-
"The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Code. 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.
Crl. Misc. No. M-27475 of 2014 (9) 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 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, if any, the witnesses and the larger interest of the society."
Hon'ble the Apex Court in Satish Jaggi's case (supra), has summed up the following criteria, which is as under:-
D. Criminal Procedure Code, Sections 407 and 406
-Transfer of case from one Court to another-Law summed up:-
(1)A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. (2)A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension.
(3)It is one of the principles of the administration of justice that justice should not be done but it should be seen to be done. (4)Grounds for the transfer have to be tested 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.
Crl. Misc. No. M-27475 of 2014 (10) (5)When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Code. (6)No universal or hard and fase rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case.
(7)Convenience of parties including witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition.
(8)Where public confidence in the fairness of the trial is likely to be seriously undermined under the circumstances of the case, transfer petition could be allowed."
In the present case neither any complaint of bias is there against any Court or judicial officer nor the parties are apprehending that they are not going to get justice. The ground taken in the present petition for transfer of cases is that the prosecution witnesses and accused are closely related to each other and belong to the same locality as well. Both the accused party and witnesses to be examined in the criminal trials will not only face inconvenience but it will be in the interest of justice of both the parties and ends of justice will also be achieved by transferring the trial from the Court of Smt. Gurdershan Kaur Dhaliwal, Additional Sessions Judge, Gurdapur to the Court of Sh. R.S. Rai, Additional Sessions Judge, Gurdaspur.
In view of the facts and law position as discussed above, both the petitions are allowed and impugned order dated 7.7.2014 is set aside. Sessions Judge, Gurdaspur is directed to entrust both the cases to either of these two courts as mentioned above or to some other Court of Crl. Misc. No. M-27475 of 2014 (11) competent jurisdiction. Sessions Judge, Gurdaspur is also directed to give the date to all the parties concerned.
A copy of this order be sent to both the Additional Sessions Judges, Gurdaspur for forwarding the record of the case to District and Sessions Judge, Gurdaspur.
A copy of the order be also sent by the Registry of this Court to District and Sessions Judge, Gurdaspur.
15.9.2014 (DAYA CHAUDHARY) pooja JUDGE