1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2698/2011 Sandip s/o Vasant Chaudhary. Applicant. V E R S U S The State of Maharashtra. Respondent. .................................................................. Mr K.C. Sant, Advocate for applicant. Mr. V.D.Rakh APP for the respondent. ................................................................... CORAM : SHRIHARI P. DAVARE, J. DATE : 9th AUGUST, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant requesting to transfer Sessions Case No.47/2010 from the Court of Additional Sessions Judge-2, Jalgaon to any other Sessions Court, Jalgaon under section 407 of the Code of Criminal Procedure. 2 3. The applicant is the accused No.2 in Sessions Case No. 47/2010 pending before Additional Sessions Judge-2, Jalgaon. On 25.1.2010 First Information Report came to be lodged against the applicant and other co-accused on the basis of Dying Declaration made by one Savita Narendra Choudhary that accused persons set her on fire. Accordingly, after completion of investigation, police personnel filed charge sheet. The applicant, his father Vasant and mother Sau Kamalbai were already enlarged on bail prior to filing of the charge sheet but the accused Narendra is still in jail, since his bail application was rejected by the Court of Sessions, as well as by this Court. 4. The recording of the evidence in the said matter was commenced with before Additional Sessions Judge-2, Jalgaon in June 2011 and prosecution examined as many as nine witnesses. Thereafter, the statements of the accused were recorded under section 313 of Code of Criminal Procedure and accused also examined two defence witnesses and matter was posted for argument. During the course of argument, learned Additional Sessions Judge-2, Jalgaon made some query. There upon, learned advocate for the accused preferred an application for issuance of witness summons to examine 3 more defence witnesses i.e. neighbourer of new house of accused. It appears that said application was allowed by the learned judge and witnesses summonses were issued to them. However, on the given date said witnesses could not remain present and therefore, accused preferred an application for re-issuance of witness summonses to the said defence witness. However, it appears that said application was also rejected by the learned judge and matter was posted for argument. 5. It also appears that during the course of argument, earlier there was some controversy between the learned judge and advocate appearing for the accused and according to the learned judge, he raised query that “Whether after hearing commotion the persons residing adjacent would come first on the spot or the persons residing at remote place would come first ?” However, it is the contention of the advocate for the accused that court asked him as to “why the persons residing near scene of offence have not been examined as defence witnesses. Accordingly, he preferred an application for issuance of witness summons to two more defence witnesses and same was allowed but the witnesses could not remain present on the given date, as aforesaid and further application of the accused for re-issuance of 4 witness summons came to be rejected and matter was posted for argument, as aforesaid. 6. The apprehension of the petitioner is that, the mind of the learned judge is prejudiced. Hence, he preferred an application for transfer of Sessions Case No.47/2010 pending before learned Additional Sessions Judge-2, Jalgaon to any other Sessions Court at Jalgaon, under section 408 of the Code of Criminal Procedure i.e. Misc Application No.120/2011 on 23.6.2011, but same was rejected by him, since recording of evidence was already commenced with before learned Additional Sessions Judge-2, Jalgaon. Hence, applicant approached this court by way of present application for the prayers as set out herein above under section 407 of the Code of Criminal Procedure with a request to transfer said Sessions Case No.47/2010 from learned Additional Sessions Judge-2, Jalgaon to any other Sessions Court, at Jalgaon. 7. I have called the report from the concerned Judge and the said report dated 22.7.2011 was received from the concerned judge. I have perused the said report. It appears that, controversy arose 5 between the learned judge and learned advocate for the accused out of query made by the learned judge during the course of argument and due to mis-understanding between them. Apart from that, grievance of the accused appears to be that witness summon were not re-issued to the two more defence witnesses by the learned judge and matter was posted for argument without examining the said witnesses. Hence, said controversy can be resolved by giving opportunity to the accused to keep said two witnesses present before the Court on a specific date and learned Judge can be requested to permit the accused to examine said two defence witnesses and there after matter can be posted for argument, instead of transferring the Sessions Case No.47/2010 from the Court learned Additional Sessions Judge-2, Jalgaon to any other Sessions Court, at Jalgaon, in the interest of justice. 8. In the result, it is directed that accused to keep the defence witnesses present positively on 29th AUGUST, 2011, before learned Additional Sessions Judge-2, Jalgaon, to whom witness summons were issued earlier and learned Additional Sessions Judge-2, Jalgaon is requested to allow the accused to examine the said two defence witnesses and evidence of the said two defence witnesses be recorded 6 and thereafter additional statement of the accused under section 313 of the Code of Criminal Procedure if required, be recorded, and thereafter matter be posted for argument, and the Sessions Case No.47/2010 be decided expeditiously on its own merits. However, it is made clear that, if the accused do not keep the above referred defence witnesses present on 29.8.2011, as stipulated here-in-above, the learned Judge shall proceed further, in accordance with law. 9. Office to inform the aforesaid order to the concerned judge forthwith. [ SHRIHARI P. DAVARE ] JUDGE ... AAA/2698.11