1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2450 OF 2008 Sherbahadur Khan Akram Khan and others .....Applicants. V/s The State of Maharashtra (At the instance of Inspector of Police, Powai Police Station) ...... Respondent. ----- Mr. J.A. Vithalani for the applicants. Mr. D.P. Adsule, APP for the State. ------ CORAM : V.M. KANADE, J. DATE : 7th January, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of the applicants and the learned APP for the State. 2. This is an application seeking transfer of the case from Court Room No.3 presided over by 2nd Ad-Hoc Addl. Sessions Judge C.K. Dhiran at Sewree to any other judge of the Sessions Court, Mumbai. 3. It is submitted by the learned Counsel appearing on behalf of the applicants that though objections were raised by defence that the public prosecutor was asking leading questions, the trial court neither recorded those leading questions nor disallowed those questions. The learned 2 Counsel invited my attention to the evidence of P.W.12 and pointed out that the leading questions which were asked were not recorded by the trial court. He submitted that grave and irreparable loss would be caused to the accused if the Public Prosecutor is permitted to ask the leading questions. The second objection is that the accused No.8 was prevented from remaining present in Court and that though a request was made that he should be allowed to remain present in court when certain important eye witnesses were examined, the said permission was not granted. Thirdly, it is submitted that the learned Judge recorded the evidence in a low voice which could not be heard by the defence counsel and copies of notes of evidence were not provided. It is submitted that the defence was, therefore, not in a position to know what was the evidence recorded by the trial court. 4. In my view, it is not possible to accept the objections raised by the Counsel appearing on behalf of the applicants. It is an admitted position that the application had been filed by the defence that the leading questions were put by the prosecution and though objections were raised by the defence, the said objections were not taken on record. This allegation was denied by the Public Prosecutor in his reply. The learned judge by an order dated 27/6/2008 has stated that whenever leading questions were asked, they were not taken on record and whenever objections have been raised by the Counsel for defence, these objections have been 3 recorded. The trial court was of the view that the accused wanted to protract the litigation and, therefore, various objections were raised from time to time. Secondly, roznama indicates that accused No.8 was misbehaving in court. The Court has recorded in the roznama dated 2/11/2007 that accused No.8 was disturbing the proceedings in court. The trial court has also recorded that the counsel for accused No.8 has stated that the mental condition of accused No.8 was not proper. The trial court, therefore, was of the view that the personal attendance of this accused was not necessary in the interest of justice and, therefore, by exercising power vested in it under section 317 of the Criminal Procedure Code, jailer was directed not to produce the accused No.8 before the Court until further orders.. Further direction was given by the Court to the Jailer to get accused No.8 medically examined through Neuro Physician. 5. The contention of the learned Counsel appearing on behalf of the applicants that the trial court erred in not permitting the accused No.8 to remain present in Court also cannot be accepted. The trial court while exercising its power under section 317 of Cr.P.C. had thought it fit not to permit the accused No.8 to remain present in court on account of his mental condition. A direction was also given to the Jailer to ensure that proper medical treatment is given to accused No.8. So far as other objections regarding recording of evidence and the manner in which the articles were shown by the prosecution to the witnesses are 4 concerned, they cannot be the grounds for seeking transfer of the case. It is always open for the defence to file an appropriate application raising objections to the procedure which is followed by the Public Prosecutor and the trial court may be requested to pass appropriate orders. These orders can be challenged by the defence before the higher authorities. No case is therefore made out for transfer of the case from the trial court. 6. Application for transfer is, therefore, rejected. Hearing of the trial is expedited. The defence to cooperate with the Court. 7. Application is disposed of. (V.M. KANADE, J.)