IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 147 of 2000 with CRIMINAL MISC.APPLICATION No 7049 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ASHOKKUMAR PRABHUDASBHAI MODI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 147 of 2000 with Criminal Misc. Application No. 7049 of 2001. MR N.S. DAFTARI WITH MR RAJESH M AGRAWAL for Petitioners MR KJ SHETHNA SPEICAL PUBLIC PROSECUTOR appointed by Government of Gujarat for Respondent No. 1 MR NITIN M AMIN for original complainant -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA Date of decision: 27 .11.2001 C. A. V. JUDGEMENT 1. In this petition filed under Article 226/227 of the Constitution and under Section 407 of the Code of Criminal Procedure ('the Code' for short), petitioners, who are accused in Sessions Case No. 36 of 1999 for commission of the offence of murder of one Dr. Sonia Modi, punishable under Section 302 read with Section 120B and other sections of the Indian Penal Code and facing trial in the said case before the learned Additional City Sessions Judge (Court No.15), Ahmedabad City, Ahmedabad, apprehending that they would not get fair and impartial criminal trial at the hands of the concerned Additional City Sessions Judge, seek transfer of the said Sessions Case pending for hearing on the file of the learned Additional City Sessions Judge (Court No.15), Ahmedabad City, which is a part-heard case as oral evidence of eight witnesses has been completed, to any other Court within the District or outside the District within Gujarat. 2. The birth of this proceeding has a nexus with an incident of murder of Dr. Sonia Modi. In connection with the said offence, FIR came to be registered and during the course of investigation, incriminating evidences were found against the present petitioners and, therefore, they are booked for the commission of offence of murder of Dr. Sonia Modi, punishable under Section 302 read with section 120B and other sections of the IPC. Charge-sheet is filed against the present petitioners and on committal, they are put on trial in Sessions Case No. 36 of 1999. The said case is allotted to learned Additional City Sessions Judge (Court No.15). 3. It is seen from the record that one of the present petitioners - Ashokkumar Prabhudas Modi - filed Special Criminal Application No.100 of 2000 before this Court seeking relief of transfer of the said Sessions Case from the Court of the learned Additional City Sessions Judge (Court No.15), to any other Court, and by order dated February 9, 2001, the said petition was permitted to be withdrawn by this Court with a view to enable the petitioners to file transfer application before the City Sessions Court, Ahmedabad and accordingly the present petitioners had preferred Criminal Misc. Application No. 346 of 2000 before the City Sessions Court, Ahmedabad, seeking the relief of transfer of the said Sessions Case from the Court of Additional City Sessions Judge, Court No.15 to any other Court of the same Sessions Division, under Sections 408 and 409 of the Code. The learned City Sessions Judge, Ahmedabad City, vide order dated February 18, 2000 dismissed the said petition by observing that under the provisions of sections 408 and 409 of the Code, a Sessions Judge can transfer a criminal case wherein procedural irregularity against the well settled practice is alleged and is shown as likely to result into prejudice to the accused but the provisions of the said sections do not empower a Sessions Judge to go into the merits of the allegations qua conduct of a judicial officer of concurrent jurisdiction and, therefore, the transfer application before the City Sessions Court was not maintainable and deserved to be dismissed and accordingly it was dismissed. It is this order of dismissal of the said petition which has given rise to the present petition before this Court. 4. By filing this petition, the petitioners who apprehend that fair and impartial criminal trial at the hands of the concerned Judge is at stake, seek transfer of the said Sessions case on the ground of principles of public policy that justice should not merely be done but should manifestly seen to be done. Moreover, to have a fair and impartial criminal trial is a fundamental right of the petitioners/accused implicit under Article 21 of the Constitution. The proof and the cogent material of the alleged denial of fair and impartial trial to the petitioners is elaborately highlighted in the petition which runs into 71 pages wherein the petitioners have tried to demonstrate that from the day one, that is, from framing of the charge, to the recording of evidence of eight witnesses how serious prejudice has been caused to the petitioners' rights at the hands of the concerned Judge in getting fair and impartial trial. The petitioners have enumerated various instances which are catalogued by giving number from A to Z then AA to EE, in the memo of the petition, and tried to demonstrate the alleged denial of fair and impartial trial at the hands of the concerned Judge. 5. The grounds upon which the Sessions Case is sought to be transferred can briefly be stated as under: (i) Petitioner No.4, a Hindi speaking non-Gujarati, who does not know vernacular language, which is the language for conducting trial, and is unrepresented by a lawyer, made several requests to the concerned Judge to supply the copy of the charge-sheet translated into Hindi Language or to provide an interpreter as provided in Section 279 of the Code but neither copy of the charge-sheet is supplied in Hindi Language nor an interpreter is provided to him by the concerned Judge and this has caused serious prejudice in conducting fair and impartial trial at the hands of the concerned Judge. Therefore there is an apprehension much less reasonable apprehension in the mind of petitioner No.4 that fair and impartial trial is at stake at the hands of the concerned Judge. On this main premise, it is prayed that the Sessions case may be transferred to any other Court. (ii) Petitioner No.4 was given the assistance of an advocate Mr. Habib Shaikh by way of legal aid who was asked to cross-examine on the same day on behalf of accused No.4 without giving relevant papers, including copy of the charges, charge-sheet and statements of the witnesses. (iii) The learned Additional Sessions Judge used to give hints and suggestions to the witnesses as to how they should depose during the recording of the evidence, which amounts to interference by the concerned Judge during the recording of the evidence and, therefore, fair and impartial trial is denied by the concerned Judge. (iv) The concerned Judge used to give threats to witnesses while recording evidence if they tried to resile from their police statement and thereby compelled them to adhere to their police statement and depose accordingly. (v) The learned advocate who represented accused No.1 is not residing in Ahmedabad and is having his office at Rajkot. He is not accommodated in fixing the date of hearing and is compelled to sit in the Court even though Public Prosecutor remained absent. (vi) The concerned Judge tried to play the role of prosecutor as well. Therefore there is an apprehension that the concerned Judge is pro-prosecution. (vii) Copies of relevant documents like opinion of the handwriting expert, lie detector test, etc., have not been supplied to the accused so far, though relied upon by the prosecution. (viii) The attitude of the concerned Judge towards the advocate representing the accused is prejudicial to them. Therefore, the atmosphere in the Court is not congenial to conduct fair and impartial trial. Therefore it is prayed to transfer the said Sessions Case to any other Court. 6. This Court, while issuing notice to the respondent, had called for the remarks of the concerned learned Additional City Sessions Judge confidentially and pursuant to the said order, the learned Additional City Sessions Judge, Court No.15, vide communication dated March 2, 2001 addressed to the Registrar of this Court, forwarded the remarks confidentially. On receipt of the said remarks, office has placed the same on the record of the case. The said remarks of the concerned Judge run into 15 pages which inter alia deny all the allegations made in the petition, more particularly with regard to the allegation of prejudice caused to the petitioners in dispensing fair and impartial criminal trial and it is stated that the petitioners have moved the application seeking transfer only with a view to delay the proceedings by raising same grievances which were raised in the memo of petition before the learned City Sessions Judge and submitted that the petitioners should not be allowed to undermine the Court proceedings by adopting dilatory tactics and scandalizing the Court which may ultimately shatter morales of the subordinate courts. 7. Mr. Daftari, learned advocate for the petitioners, during the course of his submissions, relied upon the averments made in the petition more particularly the instances highlighted in the petition from A to Z and AA to EE. He tried to show that there is overwhelming proof and cogent material about denial of fair and impartial trial by the learned Additional City Sessions Judge and according to him, this has caused serious prejudice to the fair and impartial criminal trial which is a fundamental right of the petitioners enshrined under Article 21 of the Constitution. He has mainly highlighted the grievance of petitioner No.4, who is a Hindi speaking non-Gujarati under-trial prisoner, who does not know vernacular language, who had made various and repeated efforts to get the translated copies of the charge-sheet and documents into Hindi language. In the alternative he had also requested the concerned learned Additional City Sessions Judge to supply an interpreter who could explain him the Court proceedings in Hindi language. Accused No.4 was denied of the aforesaid facility at the hands of the concerned learned Additional City Sessions Judge. The learned counsel does not rest here. According to him, accused No.4 was given the assistance of an advocate, one Mr. Habib Shaikh, by way of Legal Aid, but he was asked to cross-examine on the same day on behalf of accused No.4 without giving any relevant papers, including copies of the charges and charge-sheets and statements of the witnesses which shows the attitude of the learned Additional City Sessions Judge towards accused No.4. Ultimately, Mr. Habib Shaikh, learned advocate retired and in his place even today no provision is made to provide an advocate to accused No.4 by way of Legal Aid, which is a statutory duty cast on the State under clause 7 of sub-para 4 of para 126 of Chapter V of the Gujarat Criminal Manual, and therefore, there is apprehension in the mind of petitioner No.4 that he will not get justice at the hands of the concerned learned Additional City Sessions Judge. What is emphasized by the learned counsel is that he who is representing accused No.1 is having his official residence and headquarter at Rajkot. He, therefore, requested to give a little accommodation here or there. That request has also been turned down by the learned Additional Sessions Judge. What is stressed by the learned counsel is that even during the course of recording of the evidence the evidence is not recorded as per the version of the witnesses but it is recorded as per the sweet will of the concerned Judge. What is pointed out by the learned counsel is that witnesses of Panchnama are warned to depose as per their statement and the contents of the Panchnama and thereby the concerned Judge used to prompt them or to give hints to them against their own will. The sum and substance of the submissions made by the learned counsel is that, the way in which the trial is being conducted by the concerned Judge, there is a reasonable apprehension in the mind of the petitioners/ accused that they may not get justice at the hands of the learned Additional City Sessions Judge as they have been denied fair and impartial criminal trial. He, therefore, contended that the prayers made in the petition are justified and urged to transfer the said Sessions Case to any other Sessions court of the same Division or any other Division in Gujarat. 8. Mr. Daftari has relied upon various judgments of the Supreme Court as well as this Court to canvass the proposition that if fair and impartial criminal trial is denied and if it is brought to the notice of the appellate court during the hearing of appeal against the order of conviction and sentence, the appellate court can exercise powers and can remand the matter to the trial court for de-novo trial. The said citations are as under: i) G.X. Francis and others v. Banke Bihari Singh and another, AIR 1958 SC 309. ii) Bashira v. State of U.P. AIR 1968 SC 1313. iii) Abdul Nazar Madani v. State of Tamil Nadu, AIR 2000 SC 2293. iv) Labhu Laxmanbhai v. State of Gujarat, 1999 (1) GLR 889. v) Shakraji Chaturji Raval v. State of Gujarat, XIII GLR 317. vi) Unreported judgment in the case of Khant Vaghji Zina v. State of Gujarat, in Criminal Appeal No. 417 of 1972 decided on July 4, 1972. vii) Vedva Vaghari v. State of Gujarat, 1994 (1) GLR 901. 9. Mr. Shethna, learned advocate who has been engaged as Special Public Prosecutor by the State of Gujarat and is assisted by Mr. Nitin Amin, learned advocate for the original complainant (though not a party in this proceeding), has contested the petition by making oral submissions. He contended that the petitioners are making much hue and cry by advancing the cause of accused No.4 contending that he does not know vernacular language. According to the learned counsel, in fact accused No.4 knows Gujarati language very well as not only he understands but speaks, reads and writes also. Therefore, the contention that inspite of asking for translated Hindi version of the charge-sheet or to provide an interpreter accused No.4 has not been provided with the copy of the charge-sheet translated into Hindi nor an interpreter and, therefore, fair and impartial trial is denied, is ill-founded. In fact, petitioner No.4 is not at all interested in getting the said Sessions Case transferred from Court No.15 to any other Court. He has been made an instrument at the hands of other petitioners for exposing the cause of transfer as the conduct of the petitioners from the very beginning is to create obstacle in the way of the concerned Judge as they are not interested in conducting the trial before the said Judge. (i) What is emphasized by Mr. Shethna, the learned Special Public Prosecutor is that initially petitioner No.4 was given the assistance of advocate Mr. Habib Shaikh to conduct the trial on his behalf under Legal Aid Scheme but he did not cooperate with the said advocate, therefore, he was compelled to retire from and matter and thereafter petitioner No.4 made a declaration that he wants to defend his case himself during the trial. Therefore, the grievance of petitioner No.4 that he is unrepresented in the trial Court and he should be provided with copy of the charge-sheet translated into Hindi Language or in the alternative he should be provided with an interpreter, has no substance. Therefore, the attempt of the petitioners, other than petitioner No.4, is nothing but a joined effort by highlighting the cause of petitioner No.4 though in fact petitioner No.4 has no grievance if the said case is not transferred from Court No.15. (ii) To canvass the proposition that petitioner No.4 knows Gujarati language as well as he is not interested in this transfer petition, Mr. Shethna drew the attention of this Court to various instances which, according to him, fortify that petitioner No.4 knows Gujarati language and he is very much interested in conducting the trial before the same Judge. (iii) So far as other grievances ventilated by the petitioners such as the concerned Judge giving hints to the witnesses to depose as per their police statement and panchnama, prejudice caused on account of not accommodating the advocate, have also no substance. What is high-lighted by the learned counsel is that it may be true that on some occasion the learned Judge might have become harsh in granting date or might have told the witnesses to depose fearlessly but that can never be a ground for transfer of a part-heard Sessions Case under the guise of denial of fair and impartial criminal trial at the hands of the concerned Judge. According to him, such minor instances can never be given countenance to transfer the Sessions Case and that too a part-heart Sessions Case where eight witnesses have already tendered their oral testimony. It is emphatically contended by the learned Special Public Prosecutor that the petition is made to frustrate justice. He further contended that neither the prosecution nor the learned Judge was unfair to the accused at any point of time and if this petition is allowed by transferring the part-heard Sessions Case, it would give a wrong signal to the lower judiciary. What is stressed by the learned Special Public Prosecutor is that right from the very beginning, there was a determined attempt on the part of the petitioners anyhow to see that the case before the concerned Judge does not reach to its logical conclusion and obstacles one after the other were created in the way of the trial Judge to protract the proceedings and delay the trial anyhow to see that the said case is transferred from that court to some other Court and such a practice should not be given countenance and is required to be deprecated, otherwise it would give a wrong signal to the lower judiciary. He emphatically submitted that cross-examination is permissible at any length but cross-examination scandalizing the witnesses is not permissible and the attempt on behalf of one of the petitioners by putting scandalizing question to the husband of the victim and thereby to invite the ruling of the learned Judge rejecting the said question is also a deliberate attempt on the part of the petitioners to make out a ground to get the case transferred from that Court which should not be permitted by this Court. (iv) Lastly Mr. Shethna tried to justify the fair trial by showing evidence and rojnama of the case as to how the learned Additional City Sessions Judge has given sufficient opportunity to the petitioners to cross-examine the witnesses. He, therefore, contended that there is no substance in the petition and the petition deserves to be dismissed and prayed that the petition may be dismissed. 10. In support of the aforesaid submissions, Mr. Shethna has placed reliance on the following judgments of the Supreme Court: (i) R. Balakrishna Pillai v. State of Kerala, JT 2000 (9) SC 549. (ii) Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal Strips Ltd., (1994) 6 SCC 19. (iii) Pramod Kumar v. State of UP II (2001) CCR 325 (SC). (iv) State of UP v. Raghubir Singh 1997 SCC (Cri) 499. (v) Lt. Col. S.J. Chaudhary v. State (Delhi Administration) AIR 1984 SC 618. (vi) Suk Das v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401. (vii) State of Rajasthan v. Ani alias Hanif and others AIR 1997 SC 1023. (viii) Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378. 11. I have considered the submissions advanced by the learned advocates for the parties, perused the averments made in the petition as well as the record of the case, copies of which are perpared and supplied by the learned advocate for the petitioners and letter dated October 20, 2001 sent by petitioner No.4 from jail to the Hon'ble the Chief Justice of this Court, the letter dated February 4, 2000, Ex.118, addressed to the learned Additional City Sessions Judge (Court No.15), Ahmedabad City and the letter dated November 6, 2001 addressed to the Hon'ble the Chief Justice of this Court written by petitioner No.4. I have also considered the remarks offered by the concerned Judge and the judgments cited at the bar by the learned counsel for the parties. 12. The concept of dispensing of fair and impartial criminal trial is as old as criminal justice administration system itself. It is one of the fundamental concept of the criminal justice administration system. The Criminal justice administration system cannot run without fair and impartial trial. The said right is also recognized under Articles 21 and 39A of the Constitution of India and the said principle cannot be achieved without providing legal aid to the accused who is unrepresented through a lawyer. Even if the accused refuses to take assistance of a lawyer or any legal aid, it is the duty of the Court to appoint an advocate as an amicus curiae to assist the Court in arriving at the correct conclusion and to find out guilt or innocence of the accused. The aforesaid concept is high-lighted in various judgments of the Supreme Court as well as this Court and the decisions on this aspect are legion but it is not necessary to recapitulate them here merely to cover the ideal parade of femiliar knowledge. However, one can profitably refer the important decisions on this aspect. 13. In G.X. Francis's case (supra), the Supreme Court has said that the public confidence in the fairness of trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India, not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done". In the said judgment, the Supreme Court felt that public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined and under the circumstances of the case, the transfer petition could be allowed. 14. In Abdul Nazar Madani's case (supra), the Supreme Court has held that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence 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 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. 15. In Labhu Laxmanbhai's case (supra), a Division Bench of this Court, in which I was one of the Members of the Bench, has observed in para 27 as under: "It must be, therefore, inevitably, remembered by one and all officers of the administration of justice, much less the Judge or the Magistrates, that the concept of equal