CASE NO.:
Appeal (crl.) 241 of 2007
PETITIONER:
Satish Jaggi
RESPONDENT:
State of Chhattisgarh & Ors
DATE OF JUDGMENT: 22/02/2007
BENCH:
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P (Crl.) No. 6154 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Chhattisgarh High Court
dismissing the transfer petition filed under Section 407 of the
Code of Criminal Procedure, 1973 (for short 'the Code') for
transferring of Sessions Trial no.329/2005 (State through CBI
v. Amit Jogi and 30 others), pending in the Court of Sessions
Judge, Raipur, Chhattisgarh to some other Court. The transfer
was sought for primarily on the ground that the Sessions
Judge before whom the trial was pending is the elder brother
of a sitting MLA who is very close to the father of respondent
no.3, one of the main accused persons. It was alleged that the
father of respondent no. 3 was the previous Chief Minister of
the state and that he and the brother of the Learned Sessions
Judge belong to the same political party. It was further stated
that the said MLA was very close to the father of respondent
no.3 who was earlier the Chief Minister of the State.
Therefore, according to the appellant, he was under a bona
fide and genuine apprehension that he will not get justice if
the trial is conducted and concluded by the present Sessions
Judge. It was also stated that the major part of the trial was
conducted by the third Additional Sessions Judge, Raipur. By
order dated 21.6.2006 the case was transferred to the Court of
the Session Judge, Raipur (Shri R. S. Sharma) who examined
four prosecution witnesses and 21 defence witnesses. At that
stage, Shri R. S. Sharma was transferred as Sessions Judge,
Janigir- Champa and Shri Sanman Singh was posted in his
place as the Sessions Judge. Therefore, prayer was made to
transfer to the Court of Sessions Judge, Janigir-Champa,
where the previous Sessions Judge was posted so that he
could conclude the trial by camping at Raipur for that
purpose. The High Court held that assurance of fair trial is
imperative for the dispensing of justice and the primary
consideration for the Court is to consider whether a motion of
transfer is made out and the High Court is not required to lay
stress on hypersensitivity or relative convenience of a party.
The High Court felt that the grounds set forth by the appellant
seeking transfer cannot be considered to be sufficient to direct
transfer. Merely because the brother of the trial Judge was a
sitting MLA, that cannot be a ground to prima facie come to a
conclusion that there would be pressure through either by the
brother or father of the accused who was supposed to be close
to his brother. It was further noted that the trial is at a final
stage and about 150 prosecution witnesses and all the defence
witnesses have been examined and what remains to be done is
to hear the arguments and pass the judgment. Therefore, the
prayer was rejected.
Learned counsel for the appellant submitted that
ultimately administration of justice rests on many principles
and one of the fundamental principles is that justice should
not only be done but it should be seen to be done. The
present case is not one where a mere allegation is made.
There is no dispute that the brother of the present Sessions
Judge is a sitting MLA belonging to a particular party of which
respondent no.3's father was earlier the leader and the Chief
Minister.
Mr. K.K. Venugopal, learned senior advocate, appearing
for some of the respondents submitted that if the allegation is
accepted it would be doubting the impartiality of the present
Sessions Judge. There is no material to show that the Judge
has any bias or any partisan attitude. The fortuitous
circumstances that his brother is an MLA cannot be a factor to
doubt the judicial discipline of the Sessions Judge.
The law with regard to transfer of cases is well settled.
This Court in the matter of Gurcharan Dass Chadha v. State
of Rajasthan (AIR 1966 SC 1418) held that 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. This Court said
that 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 and that it is reasonable in the
circumstances alleged. This Court further held that 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. The court
has further to see whether the apprehension is reasonable or
not. This Court also said that to judge the reasonableness of
the apprehension, the state of the mind of the person who
entertains the apprehension is no doubt relevant but that is
not all. The apprehension must not only be entertained, but
must appear to the court to be a reasonable apprehension.
It was further held by this Court in Mrs. Maneka Sanjay
Gandhi and Anr. V. Miss Rani Jethmalani (AIR 1979 SC 468)
that assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court
to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or
availability of legal services or any like grievance. Something
more substantial, more compelling, more imperiling, from the
point of view of public justice and its attendant environment,
is necessitous if the court is to exercise its power of transfer.
This is the cardinal principle although the circumstances may
be myriad and vary from case to case. This Court, in the facts
and circumstances of the case, said that the 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. It further said
that even so, the process of justice should not harass the
parties and from that angle the court may weigh the
circumstances.
In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000
SC 2293) this Court stated that 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. 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.
In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309)
this Court felt that 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.
On finding that "there is uniformity of testimony from both
sides about the nature of surcharged communal tension in
that area," the Court found that the local atmosphere was not
conducive to a fair and impartial trial which was a good
ground for transfer. The court rejected the contention of the
petitioner therein regarding the wild allegations made to the
effect that no court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and
circumstances of the case, the trial was transferred to an
adjoining court. The mere existence of a surcharged
atmosphere without there being proof of inability for holding
fair and impartial trial cannot be made a ground for transfer of
a case. Alleged communally surcharged atmosphere has to be
considered in the light of the accusations made and the nature
of the crime committed by the accused seeking transfer of his
case. It will be unsafe to hold that as and when accusations
are made regarding the existence of a surcharged communal
atmosphere, the case should be transferred from the area
where existence of such surcharged atmosphere is alleged.
The position was also examined in Pal Singh and Anr. V.
Central Bureau of Investigation and Ors. (2005 (12) SCC 329).
In that case, considering the fact that large number of
witnesses had been examined and few more witnesses were
left to be examined, this Court set aside the order of the High
Court transferring the case from one Sessions Court to
another. The High Court was, therefore, held to be not
justified in entertaining the petition for transfer.
In this case, one thing which has to be kept in view is
that the Sessions Judge himself has not indicated his
disinclination to hear the matter. That is probably because he
believes that the mere fact that his brother is known to some
political heavyweight cannot stand in his way of discharging
judicial function impartially without fear and favour. These
are the hallmarks of judicial system. A judicial officer in
whatever capacity he may be functioning has to act with the
belief that he is not to be guided by any factor other than to
ensure that he shall render a free and fair decision which
according to his conscience is the right one on the basis of
materials placed before him. There can be no exceptions to
this imperative, but at the same time there should not be any
scope given to any person to go away with the feeling that the
Judge was biased, however unfounded the impression may be.
The qualities desired of a Judge can be simply stated: "that if
he be a good one and that he be thought to be so". Such
credentials are not easily acquired. The Judge needs to have
"the strength to put an end to injustice" and "the faculties that
are demanded of the historian and the philosopher and the
prophet". A few paragraphs from the book "Judges" by David
Pannick which are often quoted need to be set out here:
"The Judge has burdensome responsibilities to
discharge. He has power over the lives and
livelihood of all those litigants who enter his
court.His decisions may well affect the
interests of individuals and groups who are not
present or represented in court. If he is not
careful, the judge may precipitate a civil war.
Or he may accelerate a revolution.He may
accidentally cause a peaceful but fundamental
change in the political complexion of the
country.
xx xx xx xx
Judges today face tribulations, as well as
trials, not contemplated by their
predecessors.Parliament has recognized the
pressures of the job by providing that before
the Lord Chancellor recommends anyone to
the Queen for appointment to the Circuit
Bench, the Lord Chancellor 'shall take steps to
satisfy himself that the person's health is
satisfactory'.. This seems essential in the
light of the reminiscences of Lord Roskill as to
the mental strain which the job can
impose.Lord Roskill added that, in his
experience, 'the workload is intolerable: seven
days a week, 14 hours a day'
xx xx xx xx
He (judge) is a symbol of that strange
mixture of reality and illusion, democracy and
privilege, humbug and decency , the subtle
network of compromises, by which the nation
keeps itself in its familiar shape". (See Brij
Mohan Lal v. Union of India and Ors. (2002 (5)
SCC 1)
We are sure that the present Sessions Judge would have
acted in the true sense of a judicial officer. But nevertheless to
ensure that justice is not only done, but also seen to be done
and the peculiar facts of the case, we feel that it will be
appropriate if the High Court transfers the case to some other
Sessions Court in Raipur itself. We make it clear that the
transfer shall not be construed as casting any aspersion on
the Learned Sessions Judge. The Trial Court before whom the
trial is to continue should ensure that the trial is completed by
the end of May, 2007. Needless to say, the parties shall co-
operate in the completion of the trial within the said time.
The appeal is accordingly disposed of.
कोई टिप्पणी नहीं:
एक टिप्पणी भेजें