- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1864 OF 2005 WRIT PETITION NO.1864 OF 2005 WRIT PETITION NO.1864 OF 2005 Ms Rekha Roy ...Petitioner vs. 1.State of Maharashtra 2.Central Board of Investigation ...Respondents Mr.A.P.Mundargi i/b Mr.Rajendra Sorankar for the Petitioner Ms M.H.Mhatre,A.P.P. for State Mr.R.P.Lambay for Respondent No.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 31,2005 : AUGUST 31,2005 : AUGUST 31,2005 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Submissions of the Counsel appearing for the parties were fully heard on 19th August 2005. On 19th August 2005 the Judgment was not dictated with a view to enable the learned Counsel for the Petitioner to seek instructions from the Petitioner. On 23rd August 2005 further submissions were heard and the Petition was kept on 29th August 2005 for dictation of Judgment. On 29th August 2005, written submissions were filed by the Petitioner and therefore the Petition was kept today for dictation of the judgment. 2. By this Petition under Article 227 of Constitution of India, the Petitioner is seeking direction to transfer the Special Case No.34 of 2003 from the file of the learned Special Judge, Mumbai presiding over Court No.34 to any other - 2 - other Court. 3. The Petitioner has been arraigned as an accused in the aforesaid case. The Petitioner is facing trial for the offences under sections 7,13 (2) read with Section 13 (1d) of the Prevention of Corruption Act, 1988. The transfer of the case is sought on the following grounds : 1) On 21st June 2005, the Petitioner was not keeping well. On that day the Advocate for the Petitioner applied for personal exemption in favour of the Petitioner on medical grounds. The grievance is that although the exemption was granted by the learned Judge, he recorded the evidence of P.W.No.1 in absence of the Petitioner. 2) On 1st July 2005, the Petitioner was present before the learned Judge along with Junior Advocate of her Advocate. As the Petitioner was not satisfied with the services rendered by her Advocate, she tendered an application for grant of reasonable time to change/engage another Advocate. The grievance of the Petitioner is that the learned Special Judge after perusing the application tendered by her shouted at the junior colleague of her Advocate and told the Petitioner to withdraw the application and - 3 - stated that if the application was not withdrawn, the Petitioner will be taken in custody. By that time, the Petitioner’s Advocate appeared. As the learned Special Judge told the Petitioner that she would be taken in custody, the Petitioner withdrew the application. The allegation is that when the application was tendered, the learned Judge lost his temper. The learned Judge directed the Petitioner to pay costs of Rs.1000/- within an hour. The learned Judge also summoned the woman constable. 3) The learned Judge did not grant sufficient time to the Petitioner to engage another Advocate and the matter was kept on 2nd July 2005. On the oral request made by the Petitioner, the matter was kept on 4th July 2005. 4) The Petitioner had made an application for supply of certified copy of Roznama. The said application was made on 12th July 2005. On 7th July 2005 the application was made for certified copy of the order passed on 1st July 2005 by the Petitioner. The allegation of the Petitioner is that on 21st July 2005 the learned Special Judge told the Petitioner that he will not send the papers to the Department for the purposes of preparation of certified copies - 4 - and as a result, the certified copies were not given to the Petitioner. 5) On 14th July 2005 when the tape recorder was being played in the chamber of the learned Special Judge, the Petitioner humbly requested the learned Judge for time as her lawyer was not present. On the said request he got angry and shouted at the Petitioner and directed her to get out of the chamber and also called a lady constable to get the Petitioner out of chamber. Thereafter, the Petitioner was pressurised to move out of the chamber and proceeding went on in her absence. 6) The next allegation is as regards what transpired on 22nd July 2005. In paragraph No.12 of the application the Petitioner has stated thus : "12. ...It is further submitted that on 22nd July 2005, the cross-examination of the complainant started at 11.00 a.m. and while the cross examination was in progress and the Petitioner’s advocate was leading the question for cross examination, making reference about the alleged demand and acceptance of the bribe on 18-7-2001, the learned Special Judge, Mumbai at that time intervened and stated that this is an - 5 - "acceptance of Kabuli", i.e. Kabuli of Rs.500/- by the Petitioner and also gave expression by hand gesture of accepting money of Rs.500/- pointing at the petitioner. After that, again the learned Special Judge, Mumbai made a gesture of Kabuli (Acceptance of money) to be paid in part for clearance in open court amidst a proceeding which leads to sufficient reasons of the learned Special Judge, Mumbai having formed his opinion predetermined against the Petitioner having accepted a money even before the completion of the prosecution’s evidence. It is respectfully submitted by the Petitioner that is a matter of appreciation in the background of fact as per the allegation of the complainant that the Petitioner demanded Rs.1,000/- from the complainant on 18th July 2001 and the questions were put to that context by the Counsel for the Petitioner during the cross examination. And in this context, the learned Special Judge, Mumbai referred by statement and gesture that the first Kabuli, i.e. admission of acceptance of first Rs.500/- is proved..." 4. The case of the Petitioner is that considering the aforesaid circumstances, she has a reasonable belief that the learned Judge has already formed an opinion against her and - 6 - she will not get fair trial and justice at the hands of the learned Special Judge. 5. This court called for the report of the learned Special Judge. In the context of the said report, it is submitted that whenever a report is called for from the Judicial Officer in a transfer Petition, tendency on the part of the learned Judge is to defend himself and to blame the Petitioner who is seeking transfer. It is contended in the written submissions that the learned Judge behaved with the Petitioner in a violent manner. It is contended that ordinary accused person is bound to behave in a manner to create good faith about him or her in such a manner to create sympathy in the mind of the Judge. In the written submissions, it is submitted that from whatever has happened in the Court is sufficient to raise the doubt in the mind of the Petitioner who is an accused that she would not get justice from the learned Special Judge. Reliance is placed on a decision of this Court reported in XLI Bombay Law Reporter page no.346 and the decision of the Apex Court reported in A.I.R. 1953 S.C. page No.436 (H.P.Singh Vs. Thakur Prasad Tewari and another). It is submitted that a reasonable inference can be drawn in the facts of the case that from the events which have occurred in the Court between the Petitioner and the learned Judge. The Petition is strongly opposed by the learned Counsel for the Respondents and in particular learned Counsel for the Respondent No.2. He - 7 - has placed on record Xerox copy of Roznama of the proceedings and submitted that the Petitioner is adopting tactics only with a view to prolong the hearing. 6. I have considered the submissions. The first grievance is about the fact that on 21st June 2005 though the learned Special Judge granted exemption from personal appearance, he recorded the evidence of P.W.No.1 in absence of the Petitioner. The Petitioner has annexed to the Petition a copy of Application dated 21st June 2005 allegedly made by her for adjournment along with copy of a medical certificate. It must be noted here that the Petitioner has not annexed a copy of application made by her Advocate on 21st June 2005 by which a prayer was made for exemption. A copy of the said application has been forwarded along with report of the learned Special Judge. Though the Petitioner has averred in the Petition that the learned Judge granted exemption in her favour, she has not chosen to annex a copy of application made by her lawyer and the order passed thereon. It will be necessary to refer to the said application. In the said application, the Advocate for the Petitioner averred that he received a telephone call from the Petitioner informing about her ill-health and inability to attend the court on that date. The said application specifically records that the matter was fixed on that date for recording of the evidence of the sanctioning Authority. The application specifically records that the - 8 - Advocate for the Petitioner is ready to go on with the recording of evidence in absence of the Petitioner. On the said application, the learned Judge passed an order granting exemption to the Petitioner. The Petitioner has not disclosed in this Petition that her Advocate made aforesaid statement in the application made on her behalf for seeking exemption. If the exemption was sought by the Petitioner by making such application and by making a clear statement that the Advocate is ready to proceed with the hearing in her absence, it is not open for the Petitioner now to make a grievance that the learned Judge recorded the evidence in her absence after exemption was granted. The evidence was recorded in view of the express statement made in writing by the Advocate for the Petitioner. In the roznama of the proceeding, there is only one application for exemption at Exh.5 on record. The said application is obviously application filed by the Petitioner’s Advocate. The application annexed to this Petition is not reflected in roznama of the proceedings. However, suffice it to say that the Petitioner has not annexed to the Application made by her Advocate dated 21st June 2005 on the basis of which exemption was granted to the Petitioner. 7. The Petitioner has made a grievance about the incident which took place on 1st July 2005 when the Petitioner filed an application seeking time of 21 days to engage another Advocate. A copy of the application dated 1st July 2005 filed - 9 - by the Petitioner is annexed to this Petition. In paragraph 1 of the said Application, the Petitioner has made allegation against her Advocate that after he cross examined the Prosecution Witness on 21st June 2005, the said Advocate had not appeared in the case and he had deputed his junior colleagues. In the said application, there is no grievance made regarding recording of the evidence on 21st June 2005. It is pertinent to note that in the Petition a specific averment has been made that the said application was presented when the Petitioner was present along with the junior Advocate of her Advocate. In fact in paragraph No.6 of the Petition the Petitioner has stated that the junior Advocate of Shri Bagaria, Advocate who was representing her presented the said application. The Roznama dated 1st July 2005 records that it was made clear to the Petitioner that the trial will go on day to day basis. In the Roznama, the learned Judge has recorded a statement of the learned Advocate for the Petitioner Shri Bagaria that the Petitioner was simply interested in prolonging the trial and the Petitioner has not bothered to attend his office and to give him instruction. The Roznama reveals that the Advocate Shri Bagaria filed pursis along with copy of letter dated 25th June 2005 sent by him to the Petitioner. Though the said letter was addressed to the Petitioner and was placed on record of the Court on 1st July 2005, the Petitioner has annexed to this Petition only a copy of her application made and copy of the said letter is not - 10 - annexed. A copy of the said letter dated 25th June 2005 is very much on record and the same is placed on record of this Petitioner by the learned Counsel for the Respondent No.2 The said letter represents communication between the Petitioner and her Advocate and therefore I am not referring to the contents of the said letter. The pursis/application filed by the Advocate for the Petitioner on 1st July 2005 has set out the reasons why the Advocate prayed for discharge. If the Petitioner is seeking transfer by making various allegations against the learned Judge, it is expected of her to file all the relevant documents along with the Petition or atleast disclose all the documents in the Petition. The Petitioner has not annexed a copy of application dated 1st July 2005 made by her Advocate and the letter of the Advocate which was produced along with the said application. 8. In the Roznama of the proceedings dated 1st July 2005 it is recorded that the learned Judge allowed Shri Bagaria to withdraw his appearance. It is obvious that in the context of the contents of the application made by Shri Bagaria, the learned Judge directed the Petitioner to pay costs of Rs.500/- to the P.W.No.2 who was present and to the State. In the present Petition without referring to the application made by the Advocate and contents thereof, a grievance has been made that the learned Judge awarded costs. - 11 - 9. The Petition itself records that the learned Judge granted time to the Petitioner till 4th July 2005 for engaging an Advocate. The Roznama dated 4th July 2005 makes a very interesting reading. In the said Roznama the learned Judge has recorded a solemn undertaking of the Petitioner to attend the court regularly and to co-operate with her Advocate and to maintain decorum in the Court to ensure regular and speedy progress of the part heard case. The fact that the said undertaking was given by the Petitioner does not find place in the Petition. 10. In the context of the aforesaid conduct it is very difficult to accept the allegation of the Petitioner that the learned Judge forced the Petitioner to withdraw the application made by her on 1st July 2005. The said allegation cannot be accepted. The Petitioner has herself recorded that initially the learned Judge granted her time till 2nd July 2005 and thereafter till 4th July 2005 for engaging the services of another lawyer. The Petitioner has suppressed the fact that on 1st July 2005 the learned Judge passed order permitting Shri Bagaria to withdraw his Vakalatnama. The Petitioner has made a grievance about the fact that time was granted only till 4th July 2005. However, the Petitioner has not disclosed in the Petition the undertaking given by her on that date which is specifically recorded in the Roznama by the learned Special Judge. The another allegation against the - 12 - learned Judge is that on 21st July 2005 the learned Judge has stated that the papers of the case will not be forwarded to the Department so that the Petitioner cannot get the certified copies as applied by her. A xerox copy of extract of the record of the court forwarded by the learned Special Judge indicates that on 20th July 2005, the relevant papers were sent to the concerned Department by the office of the learned Special Judge. A xerox copy of the extract of the relevant register is also annexed with the report. Therefore, the allegation made in paragraph No.10 of the Petition appears to be totally incorrect. 11. In paragraph No.11 of the Petition, the Petitioner has made allegation against the learned Special Judge as regards what transpired in the chamber of the learned Judge on 14th July 2005. In paragraph No.11 the Petitioner has stated thus: "11. ... The Petitioner with her advocate’s Junior, i.e. her new advocate was present along with the Respondent - prosecutor...." 12. The Petitioner has stated that her Advocate’s junior i.e. her new Advocate was present along with the Respondent’s prosecutor. A few lines thereafter in the same paragraph, the Petitioner has stated that she humbly requested the learned Judge by pointing out that her lawyer was not present. The - 13 - Petitioner has herself stated that that her Advocate was present in the chamber of the learned Judge and in the same paragraph she stated that she requested the learned Judge for grant of time on the ground that her Advocate was not present. If such request was really made by the Petitioner then, it is very difficult to find fault with the learned Judge if he expressed annoyance. 13. The other allegation which is made is regarding alleged remark offered by the learned Special Judge during the course of recording of evidence on 22nd July 2005. As pointed out earlier, the Petitioner has suppressed relevant documents and facts in the Petition. The Petitioner has made incorrect statements. Looking to the said conduct of the Petitioner, it is impossible to accept as true the allegations made by the Petitioner against the learned Special Judge in paragraph No.11 of the Petition. 14. Some reservation is expressed by the learned Counsel for the Petitioner regarding approach of the Judicial Officer when his report is called for in a transfer Petition. In view of the said apprehension, I have not referred to the contents of the Report. I have only referred to copies of documents on record of the case forwarded with the report. I have only considered the averments made in the Petition, the documents which are on record of the case, and the Roznama of the - 14 - proceedings. On 19th August 2005 when the submissions were concluded, some of the statements made by the Petitioner were brought to the notice of the learned Counsel for the Petitioner. Perhaps that is why the time was sought to take instructions. However, on subsequent date he stated that the Petitioner wants to prosecute his application and in fact written submissions have been filed. 14. The learned Counsel for the Respondent No.2 was justified in praying that the Petitioner should be directed to pay costs. The Petitioner is a woman and is stated to be the Deputy Commissioner of Central Excise Department, Mumbai. The Petitioner has chosen to make allegations against the learned Special Judge in most unfortunate manner. I am not awarding any costs for the simple reason that directing payment of costs is no penalty for making irresponsible statements in the Petition. 15. Petition is dismissed. 16. Parties to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE