TR.P.(CRL.)/7/2013 of MADHU DEVI Vs STATE & MORS

$~1*IN THE HIGHCOURTOF DELHIAT NEW DELHITR.P. (CRL.) 7/2013

MADHU DEVI

PetitionerThrough:Dr. L. S. Chaudhary,Advocate

versus

STATE & ORS.

RespondentsThroughiMr.NavinSharma, APP for the State

CORAM:HON'BLE MR. JUSTICE KAILASH GAMBHIR

ORDER%16.04.2013

1.By this petition filed under Sections 407/482 of Code of CriminalProcedure (hereinafter referred to as Cr. P.C.) read with Article 227 ofthe Constitution of India, the petitioner seeks transfer of the case bearingSC No.94/2012in FIR No. 347/2012, registered under Section 302 IPCat PS Gokulpuri, Delhi, pending in the Court of Shri Ramesh Kumar,Additional Sessions Judge-II, Karkardooma Courts, Delhi to some othercourt.

2.The petitionerhappens to be the wife of deceasedAkhileshwhowas shot in the intervening night of 13/14.09.2002 at about 10.20 p.m.He was taken to the GTB hospitalin the injuredcondition.The saidFIR

was lodged on the statement made by the deceased. InitiattyHhercasewas registered by the police under Section 207 IPG but later on when hesuccumbed to the injuries by gun shot, the offence converted to Section302 IPG and accordingly the charges were framed against the accusedpersons under Section 302 and other Sections of IPG.

3.The grievance of the petitioner in the present petition is that she isnot expecting fair and impartial justice from the Court of Shri RameshKumar, Additional Sessions Judge-II, Karkardooma Gourts, Delhi. Ason 15.03.2013, Additional Sessions Judge, KarkardoomaGourts, Delhikept on threatening the Investigating Officer during the course ofexamination. The petitioner has also complained that on 19.03.2013 the10 was not allowed to give answer in the manner he liked and he wastaken into custody by the learned Presiding Judge for about half an hourand she was also threatenedby the learned PresidingJudge. Thepetitioner, because of such conduct of the learned Presiding Judge, isapprehending that justice will not be done in her case as the PresidingJudge was favouring the accused persons.

4.As per the petitioner, she has made complaint to the GhiefJustice in writing and had even placed copy of the complaint before thelearned ASJ with request to transfer the present case to some othercourt because of losing faith in the learned ASJ and not expecting any

justice in the case from the said particular Judge. It is further the case ofthe petitioner that the learned Presiding Judge took the said applicationon record and sent the file before the learned District & Sessions Judge(North East),KarkardoomaCourts, Delhiand videorderdated02.04.2013thelearned District&SessionsJudge(NorthEast),KarkardoomaCourts, Delhi dismissed the application of the petitionerand directed the case to be placed before the same Presiding Judge fortrial for 06.04.2013.

5.Feeling aggrieved by the order dated 02.04.2013 passed by thelearned District & Sessions Judge (North East), Karkardooma Courts,Delhi, the petitioner has now approached this Court reiterating herrequest for transfer of her case from the said Presiding Judge to someother court.

6.I have heard Id. counsel for the petitioner.

7.If the High Court is shown that (i) fair and impartial inquiry ortrial cannot be had in any criminal court subordinate thereto, or (ii) thatsome question of law of unusual difficulty is likely to arise^or (iii) thatsome of the provisions of Cr. P.C. will require passing of such order forthe convenience of the parties or the witnesses, or (iv) it is expedient forthe larger interest ofjustice, it may pass an order for transfer of the caseto another court under Section 407 of Cr. P. C.trial cannot be had in any criminal court subordinate thereto, or (ii) thatsome question of law of unusual difficulty is likely to arise^or (iii) thatsome of the provisions of Cr. P.C. will require passing of such order forthe convenience of the parties or the witnesses, or (iv) it is expedient forthe larger interest ofjustice, it may pass an order for transfer of the caseto another court under Section 407 of Cr. P. C.8.The learned District & Sessions Judge (North East), KarkardoomaCourts, Delhi has dismissed the application of transfer moved by thepetitioner vide order dated 02.04.2013 on the ground that the same waswithout any basis or substance for even prima facie forming an opinionorviewthatcomplainantcouldhavea reasonablecauseoranapprehension that fair trial will not be an outcome in the court of learnedASJ where trial is in progress.

•9.Vide order dated 09.04.2013this Court called for the comments ofthelearnedJudicialOfficer,i.e.Shri.RameshKumar,AdditionalSessions Judge-II, Karkardooma, Delhi. In his comments, the learnedJudicial Officer apprised this Court that the said case was received by hiscourt by way of transfer on 06.10.2012 and by that time 28 PWs hadalready been examined. The witness PW-29 was the last witness in thesaid case. He furtherstated that PW-29,Insp. PawanKumar wasexamined-in-chiefon 15.03.2013and on the same date cross-examinedon behalf of accusedSunil Kumar Raghavand his furthercross-examinationwas deferredon behalf of accusedSehzad and Vinod for18.03.2013.On 18.03.2013, PW-29, Insp. Pawan Kumar was stated tobe out of station, therefore, the matter was adjourned for 19.03.2013. On19.03.2013, PW-29, Insp. Pawan Kumar was cross-examined on behalfof accusedSehzadand Vinodand his furthercross-examinationwas

deferred as the witness was not feeling well due to fast. It is furtherstated that during his cross-examination on 19.03.2013, PW-29, Insp.Pawan Kumar was evasive to the question put forth by the learnedcounsel for the accused and he was warned by the learned PresidingJudge to reply to the question of learned counsel for the accused first butPW-29, Insp. Pawan Kumar did not improve his conduct. The lO wasmade to stand in the witness box and thereafter the matter was adjournedfor 20.03.2013 as he pleaded that he was not feeling well. The Office hasalso explained with the help of record that on one occasion the 10 hadbeen summoned through bailable warrants and on many other dates the10 was reported to be out of station and on 23.03.2013 he had expressedhis inability to depose as he was feeling tired. The lO was thus absent on07.03.2013 and appeared on 15.03.2013 after bailable warrants werefinally issued against him. The Officer also explained that he has beenmaking endeavour to dispose of old cases and the present case is one ofthem.

10.Theaforesaidcommentsof Mr.RameshKumar,AdditionalSessions Judge-II, Karkardooma, Delhi seem to be quite resounding. Amere warning given by judicial officer to the witness so as to deposecorrectly or to answer the questions put forth by the examining counselin proper manner cannot be termed to be as threatening action against

the witness on part of the judicial officer. judge is expected to play anefficaciousrole whileconducting trial of thecase. It would beworthwhile to produce the observations of the Apex Court whichelaborated upon the role that the presiding judges must play whilehearing cases in Mohan lal Shamji Soni v. Union ofIndia,1991 Supp

(1) see 271. The Apex Court observed that

"...thatthequestionariseswhetherthepresidingofficer of the court should simplysit as mere umpire at contest betweentwo partiesand declareat the end of thecombat who has won and who has lost or istherenot any legal duty of his own,independentof the parties,to take an activeroleintheproceedingsinfindingthetruth and administeringjustice.It is wellestablishedandsettledprinciplethatacourtmustdischargeitsstatutoryfunctions-whetherdiscretionaryorobligatory-accordingto law in dispensingjustice because it is the duty of court notonly to do justicebut also to ensurethatjustice is being done.

11.Thus, the presiding officer of the court has every right to step-inand interfereat ofthe trialwhere he finds that any stage proceedingsparticular witness appearing is not deposing honestly or when theversion put forth by it appears to be tainted, as after all, he is notexpected to be mute spectator but play an active role in trialproceedings in order to bring home the truth and administer properjustice.

12.Having said this, it would not be appropriateto accolmnodateamere plea on behalf of petitioner that the presiding judge acted in abiased maimer on the grounds of over-questioningor personallyexamining particular witness. Strong reasons with cogent proofs arerequired to be given in order to claim transfer of petition to anothercourt. Paying heed to such skimpy pleas without any cogent proof inrespect thereof would lead to drastic consequences.It would not onlyimpede the independent functioning of the courts wherein the judges aregiven ample space and powers to act in way they want so as to fulfiltheirultimately objectiveof cullingouttherealtruthfromtheparties/witnessesbutwouldalsodisparageandunderminetheconfidence of the judicial officers as well.

12.Referring to the observations made by the Rajasthan High Courtin Sukh Das and Ors. v. State ofRajasthan and Am., 2004 Cr.L.J 3080(Raj), it was held that

10.Transferof acasefromoneCourttoanotherindirectlycastsdoubtonthecompetenceand integrity of the Judge fromwhom the case is sought to be transferred.Merepresumptionsorpossibleapprehensionsare not sufficienttherefore;only good and sufficient grounds^ clearly setout in the order, may justify the transfer.

11. transfer should not readily be grantedfor any fancied notion of litigant. It shouldbe granted to ensure that the applicant gets

fair and impartialjustice.The yardsticicisinterest ofjustice.

13.It has been observed in another case Vikas Yadav v. State of UttarPradesh, 2004 JCC 43, which has also been relied upon by the learnedASJ, that transfer of trial should not be ordered on mere asking,without any material to support even prima facie the allegations madein an applicationas it would have an adverse impact on the justicedelivery system.Theseobservationswerealso reiteratedby theChhattisgarh High Court in case of Smt. Rakhi Sharma v. State of C.G.& Others, 2012 (l)CGLJ 154.

14.In the light of the aforesaid discussion, the petitioner having raisedmere apprehension of biasness without placing any cogent material tosupport even prima facie allegations against the presiding officer, theplea for transfer of the case to another court deserves to be rejected andthe petition is hereby accordingly dismissed.15.It is ordered accordingly.

KAILASH GAMBHIR, J.

APRIL 16, 2013

TR.P. (CRL.) 7/2013