Delhi District Court
State vs . Jitender @ Kalle on 25 April, 2013
1
IN THE COURT OF SHRI S.K. SARVARIA DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
T.P nos. 9/13 and 10/13
State Vs. Jitender @ Kalle
Case No. 1135/2009
FIR No. 67/99
U/S 302/307 IPC
P.S Keshav Puram
And Case No. 1136/2009
FIR No. 68/99
U/S 302, 120-B/34 IPC
P.S Mukharjee Nagar
Date of institution: 24.01.2013 and 28.01.2013
Date when arguments were heard: 09.04.2013
Date of order: 25.04.2013
ORDER
1. An application u/S 408 Cr.P.C is filed on behalf of accused Jitender @ Kalle for transfer of the two above noted cases pending against him. One handwritten application is also filed by the accused himself from jail. The applications are attached with the main transfer petition bearing no. 9/13 and arguments are also addressed in this transfer petition bearing no. 9/13. The applications bearing TP no. 10/13 and 9/13 filed by and on behalf of accused shall be disposed of by this common order in the transfer petition bearing no. 9/13 and the transfer petition bearing no. 10/13 shall be disposed of accordingly.
2. The contention of Ld counsel for applicant is that Ld ASJ dealing with the case has already expressed her opinion on the facts of the case while passing order on sentence in these two cases so she has already formed her opinion against the accused so the case should be transferred from her court to any other Sessions Court. Reliance is placed upon State of Punjab Vs. Davinder Pal Singh Bhullar & Ors AIR 2012 SC 364, Nirmal Singh Sher Singh Vs Gainda Mal and anr 1954 Cri.L.J 748 (Pepsu), Zora Singh Vs State of Haryana 1996 Cri.L.J 1374 P & H, Adam Basha Vs The State of Karnataka 1975 Cri.L.J 744 and Mohamed Abdul Raoof and others Vs State of Hyderabad 1951 Cri.L.J 273 Hyderabad (FB). It is also argued that as per Chapter 26 Rule 10 of part A General, Chapter 26 of Delhi High Court Rules, State Vs. Jitender @ Kalle 2 Presiding Officer of the court should be impartial and a party to the case should not apprehend that he will not have a fair trial. Therefore, the cases should be transferred to any other Sessions Court.
3. The accused himself in his application has levelled some allegations against the Presiding Officer concerned, on which her comments were also called and submitted by her to this court.
4. Ld Additional Public Prosecutor, on the other hand, has strongly opposed the transfer of the cases. It is argued that in the judgment Jitender @ Kalle Vs State in CRL.A nos. 666/2010 and 667/2010 dated 02.11.2012 decided by Division Bench of Hon'ble High Court, the cases were remanded back to the concerned court with the direction to decide the same. Therefore, the judgment as per directions of Hon'ble High Court is to be passed by the court of Ld ASJ-02 and the transfer application is not maintainable. It is argued that in case of grievance of the accused against direction of Hon'ble High Court, he should approach Hon'ble High Court instead of filing the application for transfer. It is also argued that false allegations are levelled by accused himself in his application for transfer which only shows that accused wants to get transfer order by levelling false allegations against the Presiding Officer, this practice should not be encouraged so the applications should be dismissed.
5. I have heard Ld counsel for applicant, Ld Additional Public Prosecutor for the State and have called the trial court record, the authorities relied upon by ld counsel for applicant/accused, perused the same carefully and have gone through the comments of Ld. ASJ-02 with regard to para no. II to VII handwritten application of accused Jitender @ Kalle.
6. The application no. 9/13 was filed by Ld counsel for accused in this court and similarly handwritten application of accused was sent by accused from jail to this court which were referred to Ld District & Sessions Judge (Central). These applications State Vs. Jitender @ Kalle 3 were sent to this court by order dated 30.01.2013 of Ld District & Sessions Judge (Central) in view of the Notification bearing no. 05/DSC/Gaz./G-1/Judl.Distts/2013 dated 28.01.2013 of Hon'ble High Court conferring power of Session Judge on all District Judges within the limits of Sessions Division of respective Judicial District in Delhi.
7. In two criminal cases in question against the accused, the judgment of conviction was passed by Sh. Bharat Prashar, Ld ASJ before whom trial concluded when he was sent on deputation to work as Joint Registrar in our Hon'ble High Court, the judgments dated 02.03.2010 and 06.03.2010 were announced on 04.03.2010 and 12.03.2010 respectively by Successor Judge Dr. Kamini Lau, Ld ASJ-II (N/W). Therefore, in the appeals filed by the petitioner/accused before Hon'ble High Court, the technical question arose about the validity of procedure of pronouncement of the judgments and it was held that the judgments were not pronounced in accordance with law. The matter was remanded back to the concerned Additional Sessions Judge having jurisdiction for concluding trial and hearing arguments and thereafter pronouncing judgments thereon. Dr. Kamini Lau. Ld ASJ-II (N/W) being Successor Judge of Sh. Bharat Prashar, the then Ld Additional Sessions Judge the cases were remanded back from Hon'ble High Court to the said court. Now, the accused wants transfer of the cases to any other Sessions court in North West Rohini District.
8. In Davinder Pal Singh Bhullar's case (Supra), it was held that the evidence of bias are required to be scrutinized taking into consideration, the factual matrix of the case in hand. Mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order.
9. In Nirmal Singh Sher Singh's case (Supra), from the Pepsu High Court, it is the Public Prosecutor who had applied for withdrawal of the case on the ground that the District Magistrate had informed him that the case had been falsely made by complainant and the same was directed to be withdrawn holding that the Magistrate of State Vs. Jitender @ Kalle 4 the District had formed a certain opinion about the case. The case was directed to be transferred outside the District to be decided in other District but in the present case the facts are entirely different. Here, the cases are remanded by Hon'ble High Court while deciding appeals to be decided afresh by Ld Additional Sessions Judge, therefore, Nirmal Singh Sher Singh's case (Supra) does not help the applicant being distinguishable on facts.
10. In Zora Singh's case (Supra) relied upon on behalf applicant/accused, the trial Judge in the counter case formed strong opinion having considerable bearing on the other case. But, in the present case there is no counter case decided by Ld trial Ld Additional Sessions Judge. The question of forming of opinion in a counter case is not relevant in the present case so the Zora Singh's case (Supra) also does not help the applicant/accused.
11. In Adam Basha's case (Supra) the application for recording additional evidence was filed by the accused and during the course of argument on this application, Ld Additional Sessions Judge observed that Public Prosecutor was man of integrity and accused not only should be convicted but also deserved deterrent sentence causing reasonable apprehension in the mind of accused that justice shall not be given to him. Ld Judge in his explanation has fairly admitted what all happened in the court so the application for transfer was allowed. But, in the present case the factual position is different.
12. In Mohd. Abdul Raoof's case (Supra) the Full Bench of Hon'ble High Court of Hyderabad was dealing with question of transfer of case from the Tribunal who has already expressed its opinion in two previous cases. The said Tribunal had already expressed opinion about some of the witnesses as trustworthy and truthful witnesses. This opinion was expressed in strong terms. Therefore, the case was transferred by Hon'ble High Court of Hyderabad from the said Special Tribunal. But, in this case, the court of Ld ASJ-II, concerned has not allegedly expressed any opinion in any other State Vs. Jitender @ Kalle 5 case with regard to truthfulness of the witnesses like in Mohd. Abdul Raoof's case (Supra). The said Ld Additional Sessions Judge has only passed order on sentence and has pronounced the judgment recorded by her Predecessor, therefore, the said judgment and order on sentence stood set aside in the appeal filed before Hon'ble High Court by the petitioner/accused. What is required now is the hearing of fresh arguments and passing of fresh judgment by the Ld Additional Sessions Judge in terms of directions of Hon'ble High Court. The said judgment may or may not be of the conviction of the petitioner/accused. We cannot prejudge the matter at this stage, therefore, Mohd. Abdul Raoof's case (Supra) is also distinguishable on facts and does not apply to the present transfer petition.
13. I find force in the arguments of Ld Additional Public Prosecutor/State that in terms of order of Hon'ble High Court dated 02.11.2012 in the appeal, concerned Additional Sessions Judge is required to conclude the trial and hear arguments then pronounce judgment in these two cases. Therefore, if the application for transfer is allowed, it would be in conflict with the direction passed by Division Bench of our Hon'ble High Court in Criminal Appeal no. 666/2010 and 667/2010 filed by the appellant. The applications are, therefore, not maintainable.
14. The allegations are made against the behaviour and inappropriate treatment meted out to the petitioner by Ld Additional Sessions Judge and Ld Presiding Officer has sent her comments stating that the delay is on account of conduct of the accused. She has also stated that the accused has moved an application u/S 311 Cr.P.C running into 150 pages on 21.12.2012 for recall of public witnesses and virtually wanted conducting of denovo trial. The said application was dismissed without imposing any cost as accused was in custody. Despite opportunities arguments were not addressed nor written arguments were filed on behalf of accused while co-accused has already submitted written arguments. The order sheets of concerned Ld Additional Sessions Judge are also perused by me which justify the comments of Ld Additional Sessions Judge that it is the accused who is delaying the matter.
State Vs. Jitender @ Kalle 6
15. It is also pertinent to note that the judgment of conviction was recorded by Sh. Bharat Prashar, the then Additional Sessions Judge who was sent on deputation as Joint Registrar by Hon'ble High Court. The present Ld Additional Sessions Judge has only announced the judgment recorded by Sh. Bharat Prashar, Ld Additional Sessions Judge and further passed order on sentence. Since the judgment of conviction was not passed by her, there should not be any apprehension of bias as judgment of conviction in such cases must be followed by order on point of sentence. The order on sentence passed by Ld Additional Sessions Judge, where presently the case is pending being Successor Judge in the same Sessions Court, also reflect that in the said order on sentence instead of taking extreme view of treating the case as rarest of rare cases, the Ld Additional Sessions Judge took the view that these were not such cases and so the petitioner was saved from the capital punishment in the cases and instead under Section 302 IPC life imprisonment was awarded to him. However, the said order stood set aside. Therefore, there is no occasion for apprehension of bias on the basis of findings on the order on sentence which were set aside in appeal by Hon'ble High Court and thus do not exist now. Therefore, Rule 10 of Chapter 26, Part A of Delhi High Court Rules does not help the petitioner.
16. The allegations made in the application for transfer filed by accused himself in Hindi are vague allegations and do not find support from the order sheets recorded by the concerned Ld Additional Sessions Judge. The comments of Ld Additional Sessions Judge that the petitioner wants to delay the matter looks to be true as against the bald allegations of bias and ill treatment made by him in the application for transfer filed by the accused in Hindi from jail. Further, in one of the two cases sought to be transferred there is one more accused namely Jitender Gulati who has not made any request for transfer of the case. The transfer application if allowed may be against his wishes.
17. In view of the above, there is no merit in the transfer petitions. Both the State Vs. Jitender @ Kalle 7 transfer petitions are hereby dismissed. The record of Ld ASJ be returned along with copy of this order. Production warrant be issued against accused to appear before Ld trial court on 01.05.2013. Ld Additional Sessions Judge shall proceed further in accordance with the directions dated 02.11.2012 of Division Bench of Hon'ble High Court in appeals filed by the petitioner. A true copy of this order be also placed in Transfer Petition No. 10/2013 which shall also be disposed off accordingly. The order be sent to the server (www.delhidistrictcourts.nic.in). File be consigned to record room.
Announced in the open court on this 25th April 2013 (S. K. SARVARIA) DISTRICT & SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Jitender @ Kalle