N Vinay @ Abhishak, Ayglicant 1 ~ Accused pemons S/ o GP. Singh Pam Aged 19 years, R/o Usar, PS Mamahi, Distt. Bilaspur (CG). in custody 2. Vasukant JaiSwal, S/o Lal Gopal Jaiswal, Ag€d 19 years, R/o Marwahi, PS Marwahi, Distt. Bilaspur {CG} 0)‘‘ Sanjay Kumar S/ 0 Firoz Kumar Lohar, Aged 19 years, Rf o Kudiya Colony, Jharsukda, Orrisa. yaFEuf? State 0f Chhattisgarh, Through Station House OffiC6r, Police Station — Marwahi, District Bilaspur (CG Resgon§ent f,” LKCA'mQzq ukgER §EQTEQN 44W (3F ’E‘HE LGEE SF QREMWMJ PRt véTEDUKK‘i 1973 FGE TRAN$FTR OF $ESSEON$ TREAL NQ 3Q£ ?@’fé FRGM THE? €9URT (3F SHRE ANWL KUMAR GAEKWADt BEITEONAL SESSEONS JU3§GE §FTC!, PEHDRA ROAD T9 ANY QTHER €3&MPETEN_T €Q3R‘T §rief §act$ 9f the wase: - 1t iS humbiy submitted (m behaif of the applicants, name above, as under:— ) d wHIGH COURT OF CHHATTISGARH A‘BILSPUR ~ TA Hon’ble Mr Justice Pritinker Diwaker Transfer Petition (Cr) No 4/2011 APPLICANTS Vmay allas Abhek hls and others Versus tate of hhattisgarh S C Shri Abshek Sinha counsel for the applicants. Shri Pravin Das Dy. G or th esondnt/State. (21 01 Present peon has ben flled by the apph ee. 'ransfer of Ssons Tl N 30/2010 (Sta of rh ay as Abhek and others) from te Co o nal > Sessios Judge FTC) Pendra Rad, to any other cpetn ourt I ' ' f i 2f : of Bilaspur. Applicants have also challenged the lorde’r dated, .. 19.1.2011 passed by learned District and Sessions Judge, Bilaspur in MJC No. 45/2010 dismissing the petition tiled by them under Section 408 of the Code of Criminal Procedure. 2. Facts of the case in brief are that the applicants are accused in Sessions Trial No. 30/2010 in relation to the offence under section 302/34 IPC. According to the case of the prosecution, body of one Ram Chandra BajajWas found on road in the evening of 26 3 2010 information of which was given to Police Station ’ManNahI by the brother of the deceased namely Shankarlal Bajaj I _ after receivmg the telephonic message and that after completion of Investigation the applicants herein have been made accused RESPONDENT hi A f e rpe APPLICATION UNDER SECTION 407 OF THE CODE-“OF. CRIMINAL PROCEDURE FOR TRANSFER OF SESSIONS TRIAL NO. 30/2010 FROM THE COURT OF SHRI ANIL KUMAR GAIKWAD, ADDITIONAL SESSIONS JUDGE {FTC}, PENDRA ROAD TO ANY OTHER: .. u COMPETENT COURT o R D E R os 21) titi e cants skmgi.. t esr rla o te Chhattrsga v Vm lia his h urt f Addrtlo n ( o omet C ’2— 3. As per the charge sheet, prosecution has cited as many as 18 witnesses to be examined in support of its case and out of them seven witnesses have already been examined. It appears from the record that during the pendency of triai on 22.10.2010 the applicants had flied an application before the trial Court praying for stay of further proceedings and deferring the examination of the witnesses on the ground that they wanted to move an application before the Sessions Court for transfer of the sessions trial. The said application was however rejected by the learned trial Court on that day itself and thereafter when counsel for the applicants pleaded no instructions and the’accused persons had prayed for time to engage some other counsel, trial Court proceeded to record the evidence of the investigating officer and further recorded in the deposition “the cross examination of the said witness ‘nil’ on behalf of the applicants. Subsequently, on 8.11.2010 the applicants filed an application before the District and Sessions Judge Bilaspur under Section 408 of the Code of Criminal Procedure for transferring the case. While entertaining the said application, learned District and Sessions Judge had called comments from the learned trial Judge who in turn gave his comments on 2.12.2010 (Annexure P-2). The main ground which was taken by the’ applicants in the transfer petition is that the manner in which the trial Court has exercised the power under Section 165 of the Evidence Act and proceeded in the matter gives an apprehension in the mind of the applicants that they may not getjustice and may be deprived of fair trial. According. to the applicants, the trial Judge appears to be biased and is bent upon to convict the applicants. Further stand of the applicants is that while giving comments on the application filed by the applicants, learned trial Judge has denied all the allegations made by the applicants and it was of the view that it is the applicants who are adopting dilatory tactics in conclusion of the trial and they are not interested to get the trial completed. Learned trial Judge has observed that it has no objection if the trial is transferred to any other Court. “3‘ 4. After considering the comments of the trial Judge, Iearned District and sessions Judge has rejected the application of the applicants filed under Section 408 of the Code of Criminal Procedure on the ground that under Section 165 of the Evidence Act learned trial Judge has ample power to put question to the witnesses and that it will not act like a mute spectator. 5. Counsel for the applicants submits that Iearned Sessions Judge has misdirected itself while passing the impugned order and failed to appreciate the submission of the applicants. He further submits that no doubt, the trial Court has power to put questions to the witnesses under Section 165 of the Evidence Act but it should not trespass the function of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He submits that in the case in hand the trial Court has acted like a prosecutor and therefore the apprehension shown by the applicants appears to be genuine and well-founded and in these circumstances the case may be transferred to some other competent Court. Counsel for the applicants has taken this Court through entire evidence and made an attempt to show as to what prejudice has been caused to the applicants. He submits that even when the bail application was filed by the applicants on 2.2.2011 (Page 18 of the additional documents), the arguments were heard on that day itself but no order was passed by the trial Court nor the facts stated in the application were recorded in the order sheet written on that day. Learned counsel for the applicants has filed various documents of the Court below to substantiate his argument. He submits that when the stay order was passed on 23.2.2011, the Court below had proceeded to record evidence and when affidavit was filed on behalf of the applicants to the effect that the proceedings have been stayed, the trial Court directed the brother of accused Vasukant Jaiswal to bear the expenses of the witnesses present in the Court on that day which is evident from the order sheet dated 1.3.201 1 (Page 10 of the additional documents). He submits that ’q, the manner in which the trial Court is proceeding with the case, the applicants have apprehension that they will not get justice from the said Court and that they have no objection if the case is transferred to any other Court of District Bilaspur. 6. On the other hand, counsel for the respondent/State submits that whatever order is passed by this Court, they would abide by the same. 7. Heard counsel for the parties and perused the material available before this Court. 8._ While deciding the petition for transfer of criminal proceedings in the matter of Satish Jaggi v. State of Chhattisgarh and others reported in (2007) 3 SCC 62 it has been held by the Apex Court as under: “5. The law with regard to transfer of cases is well settled. This Court in Gurcharan Das Chaddha v. State of Rajsthan 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 only be done but it should be seen to be done. This 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 mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be “-SL. entertained, but must appear to the court to be a reasonable apprehension.” “6. It was further held by this Court in Maneka Sanjay Gandhi v. Rani Jethmalani that assurance of a fair trial is the nrst 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 Iegal services or any Iike grievance. Something more substantial, more compeiiing, 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. lt further said that even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” “7. In Abdul Nazar Madani v. State of T.N. 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 conndence 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 _é_ 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 purpose of transfer means the convenience of the prosecution, other accused, if any, the witnesses and the larger interest of the society.” “8. ln G.X. Francis v. Banke Bihari Singh 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 justined 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 ”r « ’7_ 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 of holding fair and impartial trial cannot be made a ground for transfer of a case. The alleged communally surcharged atmosphere has to be considered in the Iight 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." “10. ln 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 byany factor other than to ensure that he shall render a free an 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 maybe. "7. The qualities desired of a judge can be ,g_ simply stated: ‘that if he be a goodone 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. * 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 persons’ 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.... * He [judge] is a symbol of that strange * * wq‘ mixture of reality and iHusio‘n, democracy and privHege, humbug andJdecency, the subtle network of compromises, by which the nation keeps itself in its familiar shape.’ “(See Brij Mohan Lai v. Union of India, SCC pp 6-7, para 7.). 9. This Court has no doubt in its mind that the steps taken by learned Additional Sessions Judge (FTC) Pendra Road in the course of Sessions Trial No. 30/2010 are actuated by true sense of a judicial officer; Nonetheless, one thing has to be kept in mind that it is the duty of the Court to ensure that justice should not only be done but it should appear to have been done. Having thus considered the peculiar facts of the case, this Court feels it appropriate to transfer Sessions Trial No. 30/2010 from the Court of Additional Sessions Judge (FTC) Pendra Road to District and Sessions Judge, Bilaspur who shall either decide the same itself or make it over to any other Court within its jurisdiction and competent to decide the same. One clarification seems necessary to be made that transfer of the sessions trial should not be construed as aspersion being cast by this Court on the concerned judge. The trial Court before whom the trial would proceed, should ensure that the trial be completed as expeditiously as possible. Needless to say that parties shall duly co—operate in the completion of the trial. ‘x; 10. Petition thus allowed. Sd/— Pritinker Diwaker Judge l j_ l l