2008crn1971.09.odt 1/13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1971 OF 2009 1. SYED SHAHZAD S/O BISMILLA KHAN AND 13 ORS R/O MOHAMMAD ALI RD, AKOLA 2. IMRAN KHA MAJID KHAN R/O BAIDPURA, AKOLA 3. SAMIR @ BABLI @ WEAQAR AHMAD KHAN R/O BAIDPURA, AKOLA 4. BOBBY @ HABIB KHAN S/O AHMAD KHAN R/O BAIDPURA, AKOLA 5. LALA PETROL PUMP WALA @ DILIP MOHANLAL JOSHI R/O SADAR, ANGPUR 6. MOHAN S/O HARIDAS NAGALKAR R/O SHIVAJI NAGAR, AKOLA 7. JAGDISH SHARMA @ JAGDISH ASHOK DESHMUKH R/O KHADKI, AKOLA 8. SANJAY RAMCHANDRA PARDESI R/O LAXMI NAGAR, PARVATI, PUNE 9. VIJAY SUKHDEO CHAVAN R/O DABKI RD, AKOLA 10. PADMAKAR SHAMRAO PATOND R/O MITRA NAGAR, AKOLA 11. DIGAMBAR KASHINATH WANARE R/O NIBANDHE PLOTS, AKOLA 12. GANESH WAMANRAO PATHAK R/O JATHARPETH, AKOLA 13. DEVIDAS RAMDAS GYARAL R/O MALIPURA, AKOLA 14. NITU @ NITA VISHAL TAKAWAT :: APPLICANTS VERSUS 1. STATE OF MAH. THR. PSO, AKOLA AND 6 ORS POLICE STATION, RAMDASPETH, AKOLA 2. FAROOQ @ MUJIBUDDIN S/O SALAUDDIN R/O ISLAMPURA, OLD CITY, AKOLA 3. JASMINDER SINGH TRILOCHAN SINGH JOHAR R/O YOJANA COLONY, WASHIM 4. VIJAY KISAN RAO ASWAR R/O GEETA NAGAR, AKOLA 2008crn1971.09.odt 2/13 5. PRASHANT CHANDRAKANT UJJAINKAR R/O JAOGLSKAR PLOTS, DABKI RD, OLD CITY AKOLA 6. ANITA GOVINDRAO DESHMUKH R/O ADARSH COLONY, HIRABAI LAYOUT, AKOLA 7. PRATIBHA SANJAY RATHOD DURGA HEIGHTS, GURUKUL SOCIETY, GORAKSHAN RD, AKOLA :: RESPONDENTS -------------------------------------------------------------------------------------------------------------------------------------------- Mr. S. V. Sirpurkar, Advocate for the Applicants. Mr. D. M. Kale, A. P. P. for respondent No. 1-State. Mr. N. B. Jawade, Advocate for respondent No. 3. Mr. P. S. Wathore, Advocate for respondent No. 5. -------------------------------------------------------------------------------------------------------------------------------------------- CORAM:- R. Y. GANOO, J. DATED :- 20TH AUGUST, 2009. P. C. :- 1. In all 21 accused are facing Sessions Trials No. 67/2008, 69/2008 and 87/2008 in the Court of learned Additional Sessions Judge-I, Akola under Sections 120-B, 363, 365, 376, 307, 342, 323 and 506 of the Indian Penal Code. After committal of the case, learned Additional Sessions Judge framed the charges against all the 21 accused and before the trial could proceed, this transfer application is made by 14 accused who are applicants before this Court. They want that three sessions cases be transferred to some other Court. Before this Court learned Advocate Mr. Sirpurkar appearing for the applicants prayed for the transfer. Learned A. P. P. Mr. Kale opposed the transfer application. Learned Advocate Mr. Wathore appearing for respondent No. 5 – one of the accused who has not filed transfer application had made certain submissions with reference to the provisions of Section 228 of the Indian Penal Code as regards the action which can be taken by a Judge if proceedings before him are interfered with. 2008crn1971.09.odt 3/13 2. I have extensively heard Mr. Sirpurkar, learned Advocate for the applicants. In support of his prayer for transfer he had submitted following points. : (1)Right from the inception of lodgment of cases, there has been news paper reporting and the nature of the said reporting is such that it would prejudice the mind of the Court and that would affect the merits of the matter. (2)The learned Additional Sessions Judge before whom the cases are pending has not made use of provisions of Section 327 (2) and (3) of the Criminal Procedure Code and up till now no orders are passed so as to direct that the proceedings should be held in-camera which has caused prejudice to the applicants and on account of that, the various persons get a chance to publish whatever is happening in the Court or publish many things about the cases which are pending. (3) On account of publication of various news items, there is something like media trial and ill feelings are raised against all the accused and a public opinion is being created against the applicants which would affect the merits of the matter and it would also affect the learned Judge who is conducting the trial and there is every likelihood that free, fair and impartial trial will not be conducted. He had also submitted that various leaders 2008crn1971.09.odt 4/13 are giving statements to the Press or otherwise which has adverse effect and there is threat to life of the accused who are facing aforesaid trials. 3. Learned Advocate for the applicants submitted that accused No. 12 is an ex-District Government Pleader and the present Public Prosecutor who is attending to the case had worked with said accused No. 12, and therefore, if ultimately the applicants succeed, it is possible that anybody would say that accused No. 12 has been able to influence the learned prosecutor and has secured acquittal. It was also pointed out that some of the accused are police personnel and even the ex-Municipal Commissioner. It was submitted that if the applicants are ultimately acquitted, it could be alleged that all these persons have influenced the learned Judge, and therefore, in the interest of everybody, the cases should be transferred. 4. He submitted that one witness by name Rajeshwari had assaulted the accused i.e. applicants No. 1 and 14 when the case was at the remand stage, i. e. before the learned J.M.F.C. and on account of that a fear is developed that there is danger to the life of the accused. It was sought to be brought to the notice of this Court that instead of taking action against the said witness, applicants No. 1 and 14 were involved in cases under Section 506 and 294 of the Indian Penal Code. According to the learned Advocate for the applicants, an application for contempt was also made, which came to be rejected. It needs be stated that no proceedings are filed rejecting the said application for contempt. 5. It was also submitted that the complainant who had filed F. I. R., is getting police protection whereas there is no protection to the accused and they 2008crn1971.09.odt 5/13 apprehend that there may be an attempt of blackening their faces and this is how the accused are living in fear. It is also contended by the learned Advocate for the applicants that the atmosphere prevailing in Akola city would prejudice the decision in the cases. It was also contended that though the prosecution has cited 140 persons as witnesses, at least 36 persons are Government servants and they will have no difficulty in remaining present in the Court other than Akola and according to learned Advocate Mr. Sirpurkar, this Court should not see the convenience of the witnesses but the Court should see that interest of justice requires that cases should be transferred out of Akola. It was clarified by learned Advocate Mr. Sirpurkar that applicants are not interested in having the cases transferred to a particular district. Learned Advocate Mr. Sirpurkar submitted that cases be transferred to any other district. It is also submitted that the averments in the transfer application are not denied by the State. Mr Sirpurkar further submitted that other accused who are shown as respondents have not opposed the transfer application. It was further argued that when majority of accused are requesting for a transfer, this is a fit case where discretion should be exercised by this Court for transfer of the cases from one district to other district. 6. Learned Advocate Mr. Sirpurkar in support of his contention, as to how the Court should look into the transfer application, had relied upon the following judgments: i) Sri Jayendra Saraswathy Swamigal (II) vs. State of T. N. & others – (2005) 8 SCC 771. ii) G. X. Francis & others vs. Banke Bihari Singh & another – AIR 2008crn1971.09.odt 6/13 1958 SC 309. iii) Ravir Godbole vs. State of M. P. - (2006) 3 SCC 400. He had submitted that the Court entertaining application for transfer must not look to the request for transfer in restricted sense and Court should always keep in mind that application for transfer should be considered ultimately to see that the accused as well as the complainant get a fair trial. Learned Advocate Mr. Sirpurkar submitted that no prejudice would be caused to any of the parties if the transfer application is granted. 7. Learned Advocate for the applicants lastly submitted that as the learned Additional Sessions Judge had not acted in terms of the provisions of Section 327 Cri. Procedure Code as regards conducting the proceedings in camera, there is basic mistake committed by the learned Judge and it is one of the grounds for transfer of cases to some other Court. 8. Learned A. P .P Mr. Kale submitted that the grounds put-forth by the applicants should not be accepted by the Court as no case is made out for transfer. He had submitted that the State would find it difficult to take 140 witnesses to some other district and examine them from time to time. He also submitted that the Court should reject the various points raised by the learned Advocate for the applicants. 9. Learned Advocate Mr. Wathore for respondent No. 5 submitted that his client is supporting the request for transfer. According to him, the provisions of Section 228 of I.P.C. empower the Judge to initiate action against the person who interferes in the functioning of the Court and that the Judge is empowered to see that appropriate discipline is maintained in the Court. 2008crn1971.09.odt 7/13 10. I have considered the rival contentions. It is noted that as of today the learned Additional Sessions Judge has not passed order in accordance with the provisions of Section 327 (2) and (3) of Code of Criminal Procedure. With the assistance of learned Advocate Mr. Sirpurkar, I have perused the provisions of Section 327 Cri.P.C. It is to be noted that the trials which are pending before the learned Additional Sessions Judge and which are sought to be transferred, pertain to charge under Section 376 of the I.P.C. hence, provisions of Sub section (2) of Section 327 of Cri.P.C. would definitely require that the Judge should pass an order that the proceedings of the cases should be conducted in-camera as the provisions of Section 327(2) are mandatory and leave no discretion to the concerned Judge. True that, till today, no such order is passed. At the same time one will have to consider the stage at which the matters are pending before the learned trial Judge. As indicated earlier, after committal of the cases to the learned Additional Sessions Judge, charge has been framed and cases are posted for recording of evidence. This will go to show that evidence is yet to commence. Hence, even hereafter if the learned Additional Sessions Judge passes an order under Section 327(2) of Cri. P.C., it would protect the interest of the applicants as well as the prosecution and to that extent the order will have to be passed directing the learned Additional Sessions Judge to hold proceedings in-camera. Once it is ordered that the proceedings will be held in- camera as per Section 327(2) of Cri. P. C., proviso to Sub-section (2) of Section 327 Cri.P.C. would come into operation and the learned Additional Sessions Judge will be able to decide as to which person shall remain present in the Court and that would empower learned Additional Sessions Judge to decide as 2008crn1971.09.odt 8/13 to which person will remain present in the Court. This will automatically keep check on the presence of the persons. Once the learned Additional Sessions Judge passes an order in terms of Sub-Section (2) of Section 327 Cri. P.C., naturally, there will be restriction as to what should be published and any printing or publishing may have to be done with the permission of the Court. That is to say, once an order under Section 327 (3) Cri. P. C. is passed, it will have to check on what substance or what news item will be published in the newspaper and that is to say once orders under Section 327 (2) and (3) of Cri. P. C. are passed by the learned Additional Sessions Judge, main grievances which were presented before this Court would be taken care of. It is with these observations, I am inclined to direct the learned Additional Sessions Judge to pass appropriate orders in terms of Section 327 (2) Cri. P. C. and make use of provisions of Section 327 (3) Cri. P. C. as regards publishing of materials in the newspaper or any public media. 11. It was sought to be argued that public opinion is sought to be created against the applicants. In my view, the learned Judge, while deciding cases, will have to be away from what may be the public opinion and as of today there is nothing shown before this Court that on account of whatever has been published in the print media, the learned Judge has passed a specific order which will go to show that the public media has affected the mind of the learned Judge. Insofar as the statements which are alleged to have been given by various leaders and various prominent persons, the concerned Judge cannot physically stop those persons from giving such statements but once the provisions of Section 327(3) are used, I am sure, there will be check and control 2008crn1971.09.odt 9/13 over the news items which may be published in the papers and other media. 12. It was sought to be suggested that accused No. 12 is an Ex-District Government Pleader and the present prosecutor who is attending to the case had an occasion to work with said accused No. 12 and if at all the cases are decided in favour of the applicant-accused, there would be allegation that said accused No. 12 has been able to secure that order. This ground put forth by the applicants, in my view, is without any basis and a feeling which cannot be accepted by a prudent person. Same is the position as regards the allegation that one of the accused is Ex-Municipal Commissioner and some police officers are shown as accused in this case. As of today nothing is placed before this Court to accept this argument of learned Advocate Mr. Sirpurkar. 13. It was sought to be argued that applicants No. 1 and 14 came to be assaulted by one of the witness when the matter was at the remand stage. This ground raised for grant of transfer of cases out of Akola district has not impressed this Court. If in future, such an instance takes place in the Court, I am sure that the learned Additional Sessions Judge would take appropriate action against such person/s. 14. It was submitted that the complainant is getting police protection and the present accused are always under the fear of threat to their life. No specific information is provided to this Court as to why police protection is given to the complainant. Needless to mention that if a particular accused apprehends that he would be assaulted or he is having an apprehension that his life is in danger, certainly he is free to make an application to the concerned police authorities to get appropriate police protection and I am sure that 2008crn1971.09.odt 10/13 application shall be considered on merits by the said authority. Merely because the accused feel that their life is insecure while facing the trial at Akola, cannot be a ground for transfer particularly when as a part of condition of bail, accused are ordered to remain out of Akola and that they are required to enter Akola town only when they are required to attend to the cases. This will mean that the accused will be required to enter territorial limits of Akola only on the dates when they are required to appear before the Court. May be this grievance can be sorted out by applying to the appropriate police authorities to get protection and transfer of cases is not solution. 15. It was also argued that on account of publication of material in the newspapers and the print media the Court is likely to get prejudice. In my view, this ground is premature because the trial is yet to commence. The mind of the Judge can be felt when the recording of evidence would start. To that extent, ground put forth by the applicants that because of publication of materials in the print media, the Court would get prejudiced, cannot be accepted. I am sure, once the provisions of Section 327 (2) and (3) Cri.P.C. are implemented, the grievance of the applicants in respect of this behalf will get sorted out because there will be control on publication of news items. In order to say that the Court’s mind is likely to be prejudiced strong material should have been placed by the applicants before the Court. 16. So far as the examination of witnesses is concerned, undoubtedly, 140 persons have been cited as witnesses. Number of witnesses to be examined is certainly high. May be some of the witnesses are Government servants, who may be able to travel from one place to other to give evidence. It is apparent 2008crn1971.09.odt 11/13 that the State would find it difficult to carry 140 persons from one place to other place, if at all the cases are transferred. Since transfer of cases on various grounds other than the volume of witnesses is being declined, this ground namely the volume of witnesses by itself does not acquire any significance. 17. It was sought to be argued by learned Advocate Mr. Sirpurkar, for the applicants that the State has not denied various points raised in the transfer application that by itself cannot be a ground to transfer the cases. Merely because both the parties wish that a case should be transferred from one place to another, it cannot be a ground to transfer it from one place to other place. In view of this, the point as regards non denial from the side of the State gathers no importance. 18. The submissions advanced by Mr. Wathore, learned Counsel for respondent No. 5 viz. taking recourse of Section 228 of the I.P.C. need not be discussed right now because the stage of recording evidence is yet to commence and I am sure if a need so arises to use the provisions of Section 228 I.P.C. or any other provisions, the learned Judge attending to the matter shall make use of the provisions and attend to the said situation. 19. It is required to be mentioned that while arriving at the aforesaid observations, I have considered three judgments which were relied upon by learned Advocate Mr. Sirpurkar. While giving the aforesaid reasons, I have kept before me one important point namely the sessions cases are at the stage of commencement of recording of evidence. Hence, as to what will happen at the stage of trial is yet to be known to the applicants as well as the State. Once recording of evidence commences, many things would be known to all 2008crn1971.09.odt 12/13 concerned and that is how at this juncture, I am not inclined to grant the transfer application. At this juncture in order to see that the provisions of Section 327 (2)(3) Cri. P. C. are put into action, I propose to pass order thereby directing the learned Additional Sessions Judge, Akola to pass an order in terms of Section 327 (2) Cri. P. C. as well as make use of the provisions of Section 327 (3) Cri. P. C. In my view, at this stage of the proceedings this order would meet the ends of justice. For the reasons aforementioned, I pass the following order.: i) The request for transfer of Session trials No. 67, 69 and 87 of 2008 from the Court of Additional Sessions Judge-I, Akola to some other Court is rejected. ii) Learned Additional Sessions Judge, Akola shall pass appropriate orders in terms of provisions of Section 367 (2) of Criminal Procedure Code and shall also make use of provisions of Section 327 (3) of Criminal Procedure Code. iii) The applicants-accused are free to make an application to the concerned department of police for their protection and if such applications are received, the said department shall attend to the said applications in accordance with the provisions of law. iv) The trial was stayed till today as this Court was to hear and dispose of the transfer application. After the aforesaid order is passed, learned Advocate Mr. Sirpurkar, for the applicants prayed for stay of the trial before the 2008crn1971.09.odt 13/13 learned Additional Sessions Judge-I, Akola in Sessions trial No. 67, 69 and 87 of 2008 for some time to enable his clients to peruse the text of this order. The request is fair. It is hereby ordered that the learned Additional Sessions Judge-I, Akola shall not proceed with the trials in Sessions Trial No. 67, 69 and 87 of 2008 till 09/10/2009. v) The application is disposed of in the above terms. JUDGE wwl