Devraj vs The State of Maharashtra

A.I.S. Cheema, J.—This application is for transfer of Sessions Case. The applicants are accused in Sessions Case No.38/2012 pending before Additional Sessions Judge-2, Ambajogai. The counsel for applicants has argued that, in the Sessions Case, the evidence started on 16.3.2013 and thereafter few witnesses were examined. According to him, before 1.2.2014 for about 4 dates the accused along with Advocate remained present, but witnesses did not attend. However, on 1.2.2014, the Advocate was not present and witness P.W.5 remained present. The accused made application, that the Advocate was not available, but no order was passed on application Exh.69. According to learned counsel, by error, the application filed on 1.2.2014 mentioned date as 1.2.2014, which error is reflected in the endorsement of the Judge also. The counsel submitted that, on that day, P.W.5 was examined but he could not be cross- examined. The matter was adjourned to 6.2.2014. The accused No.1 made application Exh. 68 mentioning that his marriage is on 5.2.2014 and so matter may not be kept on that date i.e.6.2.2014 as after marriage, for 4-5 days he will not be able to go out of house. The application, however, was rejected as it was filed at 3.00 p.m. It is agreed that on 6.2.2014 accused No.1 remained absent and Advocate was also not present and applications Exhibit 70 for exemption; and Exhibit 71 for time to cross examine were filed. The matter was posted to 11.2.2014. The learned counsel submitted that the accused had then filed Misc. Criminal Application No.20/2014 for transfer u/s 408 of the Criminal Procedure Code to the Principal Sessions Judge on 10.2.2014. On 11.2.2014, applications Exhibits 72 and 75 were filed for adjournment, but the Court, vide order dated 11.2.2014, rejected the applications. On that day, deposition of P.W.6 was recorded. The transfer application came to be rejected by the Additional Sessions Judge on 20.2.2014 observing that the roznama shows that the matter was pending before the Sessions Court since 9.5.2012 and within 9 months the accused had never raised grievance to get the matter transferred, but at the stage of evidence of P.W.5 the accused were claiming that they would not get justice. The Additional Sessions Judge observed that the grounds were baseless and the contentions deserve to be rejected.

Learned A.P.P. submitted that only because the application to change date was rejected is no reason to transfer the matter from the Sessions Judge. According to learned A.P.P. by now almost 7 witnesses have been examined. Learned A.P.P. tendered copy of roznama. According to learned A.P.P. there is no substance in the transfer application and the same deserves to be rejected.

In the present matter, it is a Sessions Case u/s 307 of the Indian Penal Code, in which the evidence started on 16.3.2013, but is still not over. It was expected as per Section 309 of the Code of Criminal Procedure that evidence recording should have been done on day-to-day basis. This is not being followed. On 1.2.2014 the application to change the date of 6.2.2014 was rejected. Although the application was rejected, the accused No.1 did not attend on 6.2.2014. Still, it does not appear from roznama that the Court took any coercive steps against accused No.1 on 6.2.2014 like forfeiting of bail or issue of warrants. However, the accused persons filed Transfer Application i.e. Misc. Criminal Application no.20/2014 referring to the incident of 1.2.2014 and in para 5, it was pleaded as under :

"5.That, above each date accused are present before learned Trial Court and they noticed that, the learned Trial Court, himself taking too much interest in favour of prosecution on open dias. That, such type of conduct of learned Trial Court create reasonable apprehension that, he may not have a fair and impartial trial. Though it can not be believed that, the applicants will not get justice from the learned Trial Judge, but the events are sufficient to create such apprehension in the mind of accused. Therefore, accused filing transfer petition before this Hon''ble Court."

This para itself shows that general and vague allegations were made that the Court itself was taking much interest in favour of prosecution on open dias. There were no particulars about it. Filing such application, the applicants on the next date of 11.2.2014 moved the Court to adjourn the matter claiming that they have filed the transfer application. It appears from the order of the trial Court that the trial Court was shown the transfer application and the trial Court observed in para 3 of its order below Exh.72 and 75 that there are false allegations against him in the application only to pressurize him and prevent him to exercise his jurisdiction and powers to decide the case. I find that there was no justifiable cause for applicants to make an issue out of what was the incident of 1.2.2014 for the applicants to move the transfer application and make such allegations. It is not appropriate that only because on particular day the Court is unable to accommodate, to go out and make allegations. Baseless apprehensions cannot be reason to claim transfer. I do not find that there is any substance in the transfer application. The same deserves to be rejected with costs.

Although I am proceeding to reject the application, I have seen the roznama (copy of which is tendered by A.P.P., which is taken on record and marked "X"), which shows the developments since 1.2.2014. It appears that, the manner in which further proceedings have gone, it would not be in the interest of justice that the matter remains in the same Court. It would be embarrassing for the Sessions Judge himself also to continue with the matter when he has recorded in order below Exhibits 72 and 75 his displeasure that false allegations have been made by the accused. It would be in the interest of justice to make over the matter to some other Sessions Judge to continue with the Sessions Case.

For the above reasons, Criminal Application is rejected with costs of Rs.5000/- (Rupees five thousand). Costs shall be deposited in this Court.

However, in the interest of justice, by suo moto invoking powers u/s 407 of the Code of Criminal Procedure, the Sessions Case No.38/2012, pending before Additional Sessions Judge-2, Ambajogai is withdrawn and is made over to the Court of Additional Sessions Judge-3, Ambajogai for decision according to law. The applicants shall appear before the Additional Sessions Judge-3, Ambajogai on 11th April 2014. No separate notice of summons should be necessary.

Criminal Application is disposed of accordingly.