IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51711 of 2007 RAM CHANDRA SINGH Versus THE STATE OF BIHAR & ANR ----------- For the Petitioner: Ms Anjana Prakash, Sr. Advocate with Ashutosh Ranjan Pandey, Prabhat Ranjan Singh and Ramanuj Tiwary For the State : Mr Ranjan Kumar, JC to AAG 9 For he Informant : Mr Hare Krishna Prasad, Advocate ------ 8. 10.09.2008 Heard the learned Counsel for the petitioner, learned counsel for the State as also the learned Counsel for the informant. In this application under Section 407 Cr.P.C. the petitioner who is an accused under Section 302 of the Penal Code seeks transfer of Sessions Trial No. 352 of 2006 from the Begusarai District Court to any other Sessions District on the ground that he is unable to even cross-examine the prosecution witnesses let alone defend himself in the trial in absence of necessary legal assistance of a Counsel. His predicament is that he is an accused for the death of a lawyer who was a regular practitioner in the Begusarai District Court. The local Bar is therefore hostile to him, the atmosphere is vitiated and he apprehends that ultimately justice may be a casualty in so far as he is concerned. He came to this Court initially in Cr. Misc. No. 222 of 2006. On 3.5.2006 the Court called for a report from the District and Sessions judge, Begusarai who stated that a Counsel had in fact filed power on his behalf. The Court was therefore not satisfied of the plea of inability of defence and therefore rejected the application even while observing that the District and Sessions 2 Judge shall ensure that the petitioner gets assistance of a lawyer in defending his case, in case he is unable to engage any lawyer. However the local assistance noticed to have been made available to him and which was the reason for rejection of Cr. Misc. No. 222 of 2006 turned out tobe elusive when the Counsel representing him was ultimately opposed by his colleagues and a resolution signed by 100 Advocates was passed requesting the lawyer concerned not to defend the petitioner. He came to this Court again in Cr. Misc. No. 7986 of 2007 seeking transfer. From the order dated 23.4.2007 passed in the latter application it is noticed that even this Court had to request the assistance of the Chairman of the Bihar State Bar Council, a Senior Advocate, to lend to his good office so that the unsavoury controversy may come to an end. A second resolution of the local Bar dated 28.3.2007 was placed on record that the earlier resolution not to allow his representation by any local Advocate was being recalled. The Court observed that “quite obviously, all this was in the background of the efforts of the Chairman of the Bar Council”. Even while apprehensions were still voiced by the petitioner of the hostile attitude of the local Bar, this Court while disposing the application observed that if the occasion arises, the petitioner may have his remedies in accordance with law. After the order dated 23.4.2007 of this Court, the Counsel representing the petitioner, one Sri J.N.Mandal on 26.6.2007 returned the brief when the petitioner filed an application in the trial Court to refer the matter to this Court in view of absence of local representation. 3 Presumably taking a clue from the order of the Court in Cr.Misc. no. 222 of 2006 the court below appointed a Counsel, Farhat Nasreen to defend the petitioner on 13.8.2007. It is not in controversy between the parties before this Court that she is a new comer to the profession and has yet to learn the nuances and experience of criminal law. Even the said Junior Counsel assigned by the Court below for the defence of the petitioner has cited “unavoidable reasons to continue conducting the case on behalf of the accused” and withdrawn from the matter. Unfortunately the trial court simply ordered by endorsement on her application to be kept on the record. While all this was happening PW 1 was examined in chief and could be cross-examined partly in the absence of a regular and proper defence assistance by a Counsel being not available to the petitioner. This has resulted in PW 2 being discharged without cross-examination only after examination in chief. A fresh development then followed when on 19.11.2007 the local Bar has passed a fresh resolution that no Advocate of the Begusarai district shall defend the case of the accused in the sessions trial. A line was added thereafter that the matter was being left to the conscience of the individual. Once a unanimous resolution had been passed by the Association, given the realities of life, it would require an extra ordinary Counsel regularly practicing before the Begusarai District Court to disobey the resolution of his colleagues and with whom he was interacting and sitting day in and day out. 4 A report had been called from the District Judge. The report is dated 25.7.2008. All that has been noticed above from the record of the case unfortunately does not find any reference in the report. On the contrary it attributed fault to the petitioner. The Court would not like to say anything further on the report. Learned Counsel for the State from the order sheet of the proceeding called for fairly stated that on more than one occasion the petitioner had placed before the trial court itself that he was finding it difficult to defend himself. He further found it difficult to dispute or deny the fact of the developments in the court below as noticed in this order. Counsel for the informant opposing this transfer urged that what would happen if the petitioner found himself in the same predicament at the transferred place. That is an issue to be considered when the occasion arises. The right to be defended by a Counsel of the litigant’s choice is his exclusive prerogative. Unless he states that he is not competent or unable to secure an Advocate of his choice the question of thrusting a Counsel upon him does not arise. The allegations are serious under Section 302 of the Penal Code. If the petitioner were to be found guilty serious punishment could follow to the extent of life imprisonment or death penalty. Will it be justice if such a punishment is arrived at without adequate opportunity to him to defend his case ? The relationship between the Counsel and his client is that of trust and faith. The litigant reposes faith in the Counsel that the 5 lawyer shall see him through his troubled waters. A litigant will never engage a Counsel in whom he does not have faith or confidence of his legal prowess. To thrust upon him a counsel and that too a Junior Counsel, shall be a travesty of justice. Perhaps if the court below had appointed a Senior seasoned criminal lawyer of the district of Begusarai to defend the petitioner there may have been no occasion to entertain this transfer application. A Judge hearing a case does not get cowed down in any manner but decides the case fearlessly. Nonetheless, a Judge remains a human being. It is difficult to visualize an environment for dispensation of justice where an accused is brought to the District Court where the entire environment is hostile so much so that he is being denied legal assistance and resolutions are being passed to deny the same to him. The Judge hearing the case may not be directly influenced by these features. However, sub conscience effect even marginally as a human being upon him is an aspect which simply cannot be ignored. In (2007) 3 SCC 62, Satish Jaggi Vrs State of Chhatisgarh & anr., transfer was sought on the ground that the Sessions Judge before whom the trial was pending was the elder brother of a sitting MLA who was very close to the father of one of the main accused. The High Court felt that the ground was not sufficient. The Apex Court held that a judicial officer discharges his duties impartially without fear or favour which are the hallmarks of the judicial system. He has to act fearlessly and be not guided by any factor other than to render a free and 6 fair decision as per his conscience on basis of materials placed before him. Even while holding that there was no reason to believe that he would come under pressure, “But nevertheless to ensure that justice is not only done, but also seen to be done and in the peculiar facts of the fact…….”. The trial was directed to be transferred. In the facts and circumstances of the case it is noticed that the local Bar decided not to defend him. This Court records its regret in that regard. Justice is the hallmark of a civilized society. The lawyers are the tools through which dispensation of justice is achieved. If those who are required to assist in the dispensation of justice turned their faces, justice itself may become a casualty, with its attendant consequences on the Society. He had a short reprieve when this Court declined to interfere. Subsequently the Counsel withdrew himself. A Junior Counsel was appointed to defend him. Quite obviously no senior seasoned counsel of repute in criminal law was willing to represent him. In the aforesaid circumstances the District Judge trusted a Junior Counsel to him who also withdrew later. Notwithstanding the best efforts of the Chairman of the Bihar State Bar Council on the request of the Court, even he has failed. In 1979 SC 468 (Mrs Maneka Sanjay Gandhi & ors Vs Miss Rani Jethmalani) the Supreme Court observed as follows in paragraphs 2 and 5:- “2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion 7 for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. 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. We have to test the petitioner’s ground 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. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” “5. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, notices and worse. This tendency of toughs and street roughs to violate the serenity of court is destructive of the course of justice and most surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put imperil by commotion, tumult or threat on account of a pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one’s case, bring one’s 8 witness or adduce evidence. Indeed, it is the duty of the court to assure propitious condition which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused’s life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer….” This Court is satisfied that in order to enable the petitioner to have a proper opportunity to defend himself by a lawyer of his choice in an atmosphere of calm where only the air of judicial purity in its larger sense beyond the Judge only, upholding the dignity of the laws prevails, it is proper to direct that the Sessions Trial No. 352 of 2006 be transferred from the Sessions Division, Begusarai to the adjacent District of Munger. After the records are so transferred to the Sessions Division at Munger the trial shall proceed from the sage at which it was pending in the Sessions Division at Begusarai. This application is allowed. If the petitioner files any application for cross- examination of P.Ws. 1 and 2 the same shall be considered by the court concerned in accordance with law. Snkumar/- (Navin Sinha,J.) 9