Harkamal Singh (Minor) vs State of Punjab

S.C. Malte, J.

The petitioners are facing allegations under Sections 302, 363, 366, 376, 201, 511, 148 and 149 IPC. The petitioner now seek the transfer of the case from one District to another on the ground that they apprehend that they would not get fair trial at Barnala. At later stage I will discuss the ground on which they seek the transfer.

The first ground raised is that petitioner No. 1 was minor at the time of alleged occurrence and though the police officer had knowledge about the minority of the petitioner No. 1, they filed the charge sheet against him also on 9.9.1997. This aspect is sought to be pressed to show bias of police. Reply filed by the complainant in this case indicates that the extract from the Registrar of Birth and Death shows that petitioner No. 1 was born on 6.8.1979. He further submits that petitioner No. 1 was admitted in Baba Gandha Singh Public School, Barnala, wherein same birth date was given at the time of admission. However, the father of petitioner No. 1 has filed an affidavit in the past on 21.2.1994 and contended that the date of birth of his son was not 6.8.1979 but 6.8.1981. It, therefore, clearly appears in view of the material that showed that the date of birth (of) petitioner No. 1 was 6.8.1979, the police filed a charge sheet believing that the petitioner No. 1 was not minor at the time of commission of offence. If the petitioner wanted to raise the contention that he was juvenile offender at the time of commission of offence, it was still open to him to place before the Court material and get the orders.

The second ground raised by the petitioner is that enemies of the petitioner have formed a Joint Action Committee, and on each and every date when the petitioners are produced before the Court, these persons, who are members of the Joint Action Committee, come in the strength of 2/3 thousand persons, and raise shouts through loudspeakers in front of the judicial Court of the learned Magistrate. It is further alleged that the persons from these groups hurl abusive and filthy language to the petitioners and their family members. It is contended that the police expressed their helplessness at that time. In that respect, report from the Additional Sessions Judge, Barnala, was sought. The report dated 3.7.1998 indicates that the case has no doubt, received wide publicity. It is also stated that some persons have formed a Joint Action Committee to see that police take appropriate action against the culprits. This inference was drawn on the basis of certain pamphlets which are attached with the complaint. In the concluding part of the report, learned Additional Sessions Judge has observed that he was of the view that such situation would not be now there after the lapse of eleven months since then. It appears that the heinous offence was committed which enraged large number of the people. It also appears that some persons have taken interest to see that the culprits were booked by the police, and may not be let off for some reasons. That does not mean that the Judges before whom the case would be tried would be swayed away by such atmosphere. Counsel for the petitioner has brought my attention to the case of Gurcharan Dass Chadha v. State of Rajasthan, AIR 1966 Supreme Court 1418. My attention was invited to para 13 of the report. It is observed as follows :

"The law with regard to transfer of case is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice would not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant, but this is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension."

These observations were made in the context of the allegations that the police officer of the rank of Deputy Director General of Police had shown hostility to the petitioner. While considering that aspect, in para 14 of the same report, their Lordship observed as follows :

"Applying these principles it may be said that there is a possibility that the petitioner entertains an apprehension that certain persons are hostile to him but his apprehension that he will not receive justice in the State of Rajasthan is not in our opinion reasonable. All the facts which he has narrated bear upon past events in his official life. Nothing has been said which will show that there is in any manner an interference direct or indirect with the investigation of the offences alleged against him or the trial of the case before the Special Judge, Bharatpur. A general feeling that some persons are hostile to the petitioner is not sufficient. There must be material from which it can be inferred that the persons who are so hostile are interfering or are likely to interfere either directly or indirectly with the course of justice. Of this there is no trace either in his petition or in the arguments which were advanced before us. Nor does the petitioner allege anything against the Special Judge who is trying the case. In this view of the matter we decline to order transfer of the case from the Special Judge, Bharatpur. The petition accordingly fails and will be dismissed."

(Emphasis supplied)

In this case, similar situation has arisen in which the petitioner have a grievance that a group of persons are organizing against him. There is not even a whisper that it has in any way influenced the judicial mind or that it will in any way affect the adjudication of the case before the Court.

Counsel for the petitioners has placed before me a certified copy of an order passed on 5.8.1998 by the Additional Sessions Judge, Barnala to show that even on the date of production of the accused on that date, about two or three hundred persons had gathered outside the court. It may be noted that none of these persons have interfered with the functioning of the Court. The number of accused are as many as seven. There is possibility that some of these persons present were interested in the accused themselves. Mere assembly of 200/300 persons on that date was not enough to show that the assembly had interfered with the functioning of the Court.

The petitioners raise the third ground that Barnala Bar Association has passed the resolution not to appear to defend the petitioner. That ground is without any basis in view of the report of the Additional Sessions Judge which states that a senior Lawyer Mr. A.S. Sidhu who appears in serious Sessions Cases, is now representing the accused.

In the set of these aspects, the observation of the Bombay High Court in case of Rajendra Gandhi v. State of Maharashtra and another, 1989 Crl. L.J. 1073 has no application because in that case the trial was transferred on finding that the accused was unable to engage a lawyer at Kohlapur.

To conclude, I find no justification to transfer the case from Court. Dismissed.