Anita vs State of Madhya Pradesh and Another

G.D. Saxena, J.—The instant petition is moved u/s 482 of the Code of Criminal Procedure 1973 by the petitioner for transfer of her pending Criminal Case No. 11645/2009 from the court of Judicial Magistrate First Class, Gwalior (Smt. Preeti Salve) to any other criminal court having jurisdiction at Gwalior. The brief facts leading to filing the present petition are that on the FIR lodged by the complainant/petitioner, after investigation, the charge-sheet was filed against respondent No. 2/accused by the Police Station University, Gwalior in the court of JMFC, Gwalior where the case is pending. It is complained by the petitioner that during trial of the case, the behavior of the Presiding Judge towards her, who by profession is a practicing lawyer conducting cases in the High Court as well as District Court Gwalior was not fair and therefore she apprehends injustice with her. She, thus, moved transfer petitions before the Chief Judicial Magistrate as well as the Sessions Judge, Gwalior but same were dismissed. The petition preferred u/s 407 of Cr.P.C. before this court which was registered as Misc. Cri. C. No. 9154/2011 was disposed of on 8th August, 2012 with a direction to conduct an independent inquiry by the District Judge (Inspection and Vigilance), Gwalior. The District Judge (Inspection and Vigilance) Gwalior vide his report dated 18th September 2012 did not find any substance in her complaint made against the Presiding Officer. Hence, the petitioner by moving this petition prayed for exercising inherent powers u/s 482 of Cr.P.C. in directing the learned Sessions Judge to transfer the Criminal Case No. 11645/2009 pending before the concerned Judicial Magistrate to any other criminal court having jurisdiction at Gwalior for its trial and decision.

The grounds raised in the transfer petition may be recapitulated as under:-

(i) that, due to allowing of her prayer against the order rejecting the application u/s 301 of Cr.P.C. to assist the Govt. Advocate, the Presiding Officer dealing with the case became annoyed;

(ii) that, the petitioner/complainant who is a practicing lawyer is not permitted to remain in trial court at the time of hearing;

(iii) that, the court proceedings of trial are, after hearing, generally written by the Reader of the court who used to post the case oftenly at later hours and therefore the petitioner has doubt against the clerical staff;

(iv) that, the Presiding Judge passed adverse comments against the petitioner in the presence of Assistant Prosecutor conducting the case which made a fear that the true justice would not be parted with her; and

(v) that, the trial court did not record the statements of prosecution witnesses present in court during trial. If any prosecution witness remains absent on the date of hearing, the trial court uses to issue the bailable warrant for his/her presence.

On these grounds, the petitioner prayed for transfer of her criminal case to some other court having jurisdiction at Gwalior.

Per contra, learned counsel appearing for respondent No. 2 opposed the prayer of the petitioner for transfer of her criminal case on imaginary apprehension of failure of justice on the conduct of the trial Judge in which she is the complainant. He also submitted that the grounds raised are not supported by the record of the trial case and the other evidence adduced in inquiry conducted by the District Judge (Vigilance and Inspection) Gwalior. Therefore, it is prayed that the prayer for transfer may be rejected.

Heard the learned counsel for the parties at length. Also perused the record of the case with relevant provisions of law applicable to the case.

The question crops up for consideration is whether merely on the basis of conjuncture and surmises, the transfer of the case can be ordered?

On perusal of the record of the Criminal Case No. 11645/2009 pending before the concerning Judicial Magistrate, it clearly appears that after filing the charge-sheet on 6th October 2009, the learned trial Magistrate on 24th November 2009 framed the charges against respondent No. 2/accused and the case was posted for prosecution evidence on 23rd December 2009. On that day, the complainant-petitioner Smt. Anita Sharma filed an application u/s 301 of Cr.P.C. seeking permission to assist the Public Prosecutor through her counsel Shri Mukesh Gupta. That application was allowed by the trial Magistrate and on that day the complainant Smt. Anita Sharma (PW-1) was examined by the Trial Magistrate. On next date of hearing on 4th February, 2010, the prosecution''s witness, namely, Kishorilal Sharma (PW-2) was examined. Thereafter, no prosecution witnesses remained present before the trial Magistrate despite issuance of summons. In these circumstances, the Trial Magistrate as per routine course issued bailable warrants for ensuring the appearance of those prosecution witnesses who, after service of summons for appearance before the trial Magistrate remained absent without proper reason. It also appears from the record of the Trial Magistrate that on almost dates of hearing, the petitioner/complainant was appearing before the Trial Judge. Her appointed counsel Shri Mukesh Gupta was present only on two days of hearing. There were no interpolations made in the order-sheets on the dates, as alleged. Even in the order-sheet dated 24th January, 2012 while fixing the case for prosecution evidence on 24th February, 2012, an opportunity for filing reply to the application of the complainant was given and for that purpose some different date was given so as to take up the matter early for hearing on the point of providing necessary security to the complainant and her witnesses from accused''s side. As regards the allegation that the Trial Magistrate expressed unwarranted comments against the petitioner in the presence of the Public Prosecutor, same is not supported by other reliable evidence nor substantiated from the record of the trial Magistrate. On perusal of the routine proceedings contained in the record of the trial Magistrate, it appears that some proceedings were typed while some were handwritten by the court staff but on that basis, it cannot be accepted that the proceedings were written/typed by the court staff at later hours after hearing so as to fix the dates as per choice of the other side.

In the case of Vikas Kumar Roorkewal Vs. State of Uttarakhand and Others, , the Hon. Apex Court in the similar nature of allegations resting for transfer the case has observed as follows:-

It is true that there must be reasonable apprehension on the part of the party to a case that justice may not be done and mere allegation that there is apprehension that justice will not be done cannot be the basis for transfer. However, there is no manner of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused only because the witnesses are threatened is made out by the petitioner.

Further, in the case of Ashish Chadha Vs. Smt. Asha Kumari and Another, it has been observed:-

It is also significant to note that while the order was being dictated by the learned Special Judge, Respondent 1 moved an application for transfer of the case since allegedly an opportunity of being heard through an advocate of her choice was denied to her. This application was rightly rejected by the Special Judge for want of jurisdiction. The learned Special Judge then framed charges against Respondent 1 and the other accused. Respondent 1 then requested the High Court to transfer her case from the file of the learned Special Judge, Chamba to the Court of the Special Judge, Kangra on the ground that she had reasonable apprehension that she will not get a fair trial. The High Court, in our opinion, wrongly transferred the case as desired by Respondent 1. Apprehension expressed by Respondent 1 that she would not get a fair trial was baseless.

We have already noted the number of dates on which the learned Special Judge adjourned the proceedings. It is only when he was satisfied that Respondent 1 was purposely seeking adjournment and that Mr. Malhotra, counsel appearing for Respondent 1 had argued her case that the learned Special Judge refused to grant further adjournment. We do not find any material to substantiate the fear expressed by Respondent 1 that she would not get a fair trial. The High Court, therefore, should not have transferred the case to the Special Judge, Kangra. Needless to say that such transfers ordered merely on the say-so of a party have a demoralizing effect on the trial courts. Unless a very strong case based on concrete material is made out, such transfers should not be ordered.

As evident from the order-sheet dated 23rd December, 2009, the learned Trial Magistrate by allowing the application u/s 301 of Cr.P.C., permitted the petitioner/complainant for assisting the prosecution agencies through her appointed counsel during trial. The petitioner being lawyer also appeared almost on all the dates fixed for recording the prosecution evidence and as usual the Prosecutor also appeared before the Trial Magistrate for conducting the trial. Mere apprehension in the mind of the petitioner that too without substantiating the same by cogent proof would be no ground for transfer of her case from the court of Trial Magistrate to another criminal court to try the present criminal case. However, one of the balanced principles of the administration of justice cannot be ignored that a Judge like any other citizen is entitled to freedom of expression belief, association and assembly, but in exercising such rights, a Judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. When he/she does something improper, then every improper act and every misbehavior of a Judge is likely to be magnified and distorted thereby reducing the faith and trust of the common man in the judiciary. Having regard to the above principles of the judicial conduct and further keeping in mind that justice should not only be done but it should be seen to be done, it is directed that the learned Trial Magistrate should refrain herself from passing any comment against the petitioner/complainant because it may affect the impartiality and dignity of the judicial office. Consequently, this petition has no substance and is hereby dismissed.