1 4664.11 Cri.Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4664 OF 2011 Riwan Faruq Shaikh & others APPLICANTS VERSUS The State of Maharashtra RESPONDENT ..... Shri Harshad Padalkar, Advocate for applicants Smt. R.K. Ladda, APP for respondent / State ..... CORAM : U.D. SALVI, J. DATED : 17 th December, 2011. PER COURT : 1. This is an application for transfer of the proceedings in Sessions Case No. 24/2010 pending before the learned Additional Sessions Judge, Shrirampur, District Ahmednagar, to any other Sessions Court outside the jurisdiction of District Ahmednagar, under Section 407 of Criminal Procedure Code, 1973. 2. The applicants are the accused in crime No. 8/2010 registered with Shrirampur City Police Station, Shrirampur for the offences punishable under sections 302, 143, 147, 148, 149, 12-B of the Indian Penal Code, 1860, and under section 3 & 25 of the Arms Act as well as under Section 3(1) (3) read with Section 35 of 2 4664.11 Cri.Appln. Bombay Police Act, 1951 on 09-01-2010. On completion of the investigation the charge sheet was filed in the Court of learned Judicial Magistrate, First Class, Shrirampur and the case was committed to the Court of Sessions in due course. 3. According to the applicants, they have been falsely implicated in the aforesaid case on the allegations that they had hatched conspiracy to kill one Ayub Papabhai Shaikh, and in furtherance of the said conspiracy the deceased was shot dead at about 11.45 p.m. on 8-01-2010. The applicants/ accused submit that on 21-07-2011, when the proceedings in the said Sessions Case were fixed for hearing of the discharge application filed by the applicant/ accused No. 8-Nilesh Suresh Alhat, an application was moved for adjournment on the ground that the Advocate of the applicant/ accused No. 8 was keeping in-different health and the said application was rejected by the learned Additional Sessions Judge, Shrirampur, and as a consequence thereof the application for discharge was required to be withdrawn. 4. The applicants/ accused further submit that the deceased Ayub was a notorious character with strong criminal antecedents wielding influence as a political leader in public and political life in and around in Ahmednagar district, and as such had 3 4664.11 Cri.Appln. created lot of terror and fear amongst the locals. According to the applicants/ accused, most of the witnesses in the present case are from Shrirampur City and their statements came to be recorded under the influence and terror of deceased Ayub and there is every possibility of influencing the witnesses, if the trial is to be conducted at Shrirampur or within the limits of district Ahmednagar. 5. The applicants/ accused further submit that there have been instances of arson and physical violence with the relations and supporters of deceased Ayub, and the applicant/ accused No. 8-Nilesh Suresh Alhat apprehended attack on his life twice- Firstly, on 06-05-2010, and secondly, on 03-07-2010 at the hands of relations and supporters of the deceased, and he made representation to the learned Sessions Court, Shrirampur in that regard. 6. After murder of the deceased Ayub, the applicants submit, Shrirampur city was put on high alert ,and this fact, fortifies the contention regarding the influence exercised by the deceased Ayub in and around Ahmednagar district. 7. All these facts and circumstances, learned Advocate Shri Harshad Padalkar for the applicants submitted, have created a 4 4664.11 Cri.Appln. reasonable apprehension in the mind of the applicants that a fair and impartial enquiry or trial can not be held any where in the district of Ahmednagar, much less at Shrirampur, and therefore, it is just necessary to transfer the said case to any other place outside the jurisdiction of Ahmednagar district. To fortify his submissions he placed reliance on the following Judgments : i] 2006 (9) SCC 714; Fajlor Rahman @Mohamod Fajloo @ Raju V. State of Punjab and Anr. ii] 2006 (9) SCC 786; Ravir Godbole V. State of Madhya Pradesh. iii] 2010 (5) SCC 115; Central Bureau of Investigation (C.B.I.) V. Hopeson Ningshen & Ors. iv] 2004(2) Bom.C.R. (Cri) 852; Nilesh Jap Daru V. State of Maharashtra. 8. Notices were issued to the State and Police Inspector Shrirampur City Police Station, Shrirampur. A report of the learned Additional Sessions Judge, Shrirampur was called. State did not file any reply to the petition. 9. The learned Advocate for the applicants placed before the Court copies of medical papers of Sasoon General Hospital, 5 4664.11 Cri.Appln. Pune dated 20-07-2011, concerning one Vipul Dushina, application Exh. 58 and copies of roznama in Sessions Case No. 24/2010. 10. The learned APP for the State submitted that the apprehensions expressed by the applicants are misconceived in as much as the applicants have been provided with strong guard to ward off any attempt on their life, and as the case was made time bound on the orders of this Court there was little option for the learned trial Court but to reject the application for discharge. 11. For better understanding of the case put-forth by the applicants for transfer of the said Sessions Case, it would be worth while to go through the documents annexed to the application as well as those documents further tendered by learned Advocate for the applicants. A copy of First Information Report dated 09-01-2010 lodged by one Manoj Ramjivan Gupta, a Bhelpuri vendor carrying business on a public street near Maulana Azad Chowk, discloses that the fateful incident of shooting the deceased Ayub had occurred around 11.15 p.m. on 08-01-2010 in the presence of the complainant and another person named Ekbal Ayub Memon, and two of the assailants who came with three others on motorcycle were known to the complainant by name. He also described the motorcycle used in the crime and referred to the persons gathered 6 4664.11 Cri.Appln. at the spot who had removed the deceased to the hospital. This obviously means that there are eye witnesses to the incidence. Moreover, there is nothing to suggest that eyewitness accounts were prompted by the henchmen of deceased Ayub. A copy of the application dated 18-07-2011 (Exhibit 53) reveals a grievance made by the applicant/ accused No. 8-Nilesh Suresh Alhat about supply of copies of C.A. Reports and ballistic experts reports etc. Learned A.P.P. recorded a fact below the said application that prosecution / State had provided all police papers along-with charge sheet to all the accused. This application was not pressed by the applicant/ accused No. 8-Nilesh Alhat through his Advocate Sumant Deshpande for the reason that Advocate Mr. Vipul Dushing was unable to argue the said matter on account of his illness. As regards application dated 21-07-2011. a copy of which is annexed to the application, it is seen that the learned trial Court had rejected the plea for adjournment made by the applicant/ accused No. 8- Nilesh Suresh Alhat on the ground of sickness of his Advocate Shri Vipul Dushing as well as non supply of ballistic report with the following order : “ Heard Advocate for the accused No. 8. Perused the application and say. The reasons assigned are not acceptable as the matter is made time bound by Hon’ble High Court. Therefore, such 7 4664.11 Cri.Appln. adjournment application cannot be considered in view of case and say filed by APP. Hence rejected.” 11. Criminal antecedents of Ayub Shaikh including proposal for his externment are evinced from the letter dated 02-06-2011 of Police Inspector, Shrirampur city Police Station, Shrirampur. Instances of arson and physical violence at the instance of one Nisar Osman Pinjari, reflect from the information provided by Shrirampur City Police Station, Shrirampur vide copies of letters dated 02-03-2011 and a copy of the First Information Report dated 13-12-2010 lodged by one Nilofar Osman Syed annexed to the petition at Exhibit D & E. However, these documents fail to make a sense that this Nisar Osman Pinjari was henchman of deceased Ayub. News paper cuttings annexed to the petition are of little assistance in answering the question, as to whether the trial in case in question at Sessions Court, Shrirampur would be fair or not? Copies of the applications made by the applicant/ accused No. 8-Nilesh Suresh Alhat to the Sessions Court at Exhibit F Collectively speak of fatal assault in the Court premises on 06-05-2010, while the applicant/ accused No. 8-Nilesh Suresh Alhat was in custody of ordinary guards. However, there is no material to suggest that actually the said assault had occurred and further caused any injury to the person of the applicant/ accused No. 8-Nilesh Alhat. It appears that the applicant/ accused No. 8- 8 4664.11 Cri.Appln. Nilesh Alhat suspected three or four of his adversaries in the crowd and as a result of which became apprehensive about his safety. These documents further reveal that the learned trial Court had taken cognizance of the apprehensions expressed by the applicant/ accused No. 8-Nilesh Alhat and directed production of the accused before the Court with strong guard. A question therefore, arises as to whether there are reasonable apprehensions regarding fairness and impartiality of the trial before the learned Sessions Judge, Shrirampur? To answer this question it is necessary to further look into the progress of the case as revealed from the copies of the rozanamas. The case on committal first came up before learned Additional Sessions Judge, Shrirampur on 03-07-2010. It appears from the rozanama that from time to time applications were made by the applicants to meet there relations in the Court and the same were granted. The case was posted for framing charge since day one. However, it remained to be framed for one or other reasons until 25-10-2010, when a writ was received directing expeditious disposal of the case within ten months. Rozanama further reveals that on 13-12-2010 discharge application (Exhibit 26) was filed by the accused Sandeep Waghmare. Thereafter, discharge application (Exhibit 34) was moved by accused No. 4 on 15-02-2011. Thereafter, accused No. 5 moved discharge application (Exhibit 46) on 27-06-2011 and on 9 4664.11 Cri.Appln. 08-07-2011 applicant/ accused No. 8-Nilesh Suresh Alhat filed discharge application (Exhibit 53). On 11-07-2011, rozanama records, the arguments on both the sides and on behalf of the original complainant were heard and the matter was adjourned for orders below (Exhibit 46 ). 12. At this juncture, it would be worthwhile to look into the case law cited by the applicants in support of their case for transfer of the case. In Fajlor Rahman’s Case (supra) the Hon’ble Apex Court ordered transfer of the case from the file of learned Magistrate Phillour, District Jalandhar, State of Punjab to the Court of learned Chief Judicial Magistrate Barpeta State of Assam, on the ground that the petitioner-Fajlour Rahaman, accused of the offence punishable under sections 363-A, 366 and 120-B of Indian Penal Code, 1860 had received constant threats from the relations of his wife, the petitioner No. 2 whom he had allegedly kidnapped and with whom he was living happily. In the instant case not only the facts differ, but the applicants / accused have been provided with a strong guard. 13. In Ravir Godbole’s case (supra) the petitioner, who was facing trial, for the offence punishable under Section 307 of Indian Penal Code had actually faced two attempts on his life from 10 4664.11 Cri.Appln. rival gang and during the course of trial he was attacked third time and sustained serious injuries, and therefore, the Hon’ble Apex Court had transferred the trial of the case from Bhopal (M.P.) to the Court of District & Sessions Judge, Nashik. 14. In Hopeson’s case (supra), Central Bureau of Investigation had sought transfer of the case wherein a militant organization was involved from disturbed area like Manipur to Criminal Court in Delhi and the Hon’ble Apex Court in facts of the said case had transferred the said case to Delhi. The Hon’ble Apex Court at para No. 10 of the Judgment made reference to the Judgment in Maneka Sanjay Gandhi’s case [Meneka Sanjay Gandhi V. Rani Jethmalani; (1979) 4 SCC 167] to instructively quote thereform the observations in the following words : “ Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion 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 grounds on this touchstone bearing in mind the rule that 11 4664.11 Cri.Appln. 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.” 13. Thus, it is not a hypersensitivity or relative convenience of a party or like mini grievances which should prompt transfer of the case from one Court to another but there should be something substantial more compelling from the point of view of public justice, to prompt the exercise of power of transfer. In the instant case it appears that as a result of on going strife between the rival parties, the applicants have become hypersensitive despite the fact that they have been provided with strong guard. There is no material before the Court to point out that any of the witnesses one or other has been acting under the influence of deceased Ayub or his henchmen. Rejection of an adjournment application, it appears, was the result of the pressure of directions of this Court to dispose off the said case within a given time frame, and learned trial Court had nothing in particular against any of the applicant/ accused. As a matter of fact, it can be seen from the entries in the rozanama that learned trial Court was liberal with the accused and there is no legitimate reason for the accused to be apprehensive about fairness and impartiality of the learned trial 12 4664.11 Cri.Appln. Court. Entries in the rozanama further reveal that on 13-10-2011 the charge (Exhibit 76) was framed in the presence of accused and the advocate for accused Nos. 1 to 6, and pleas of the accused were recorded, and yet they had refused to sign on the plea without any justification. This only shows unjustifiable reluctance of the accused to go on with the trial, and their conduct in fact, denudes their intentions to further protract the trial before the learned Sessions Judge, Shrirmapur which they had succeeded to protract over a period of last one and half year. 15. In the given facts and circumstances, the Criminal Application No. 4664/2011 deserves to be to be rejected and stands rejected accordingly. ( U.D. SALVI, J. ) SDM* December-11