Munshi @ Rajesh Tiwari vs Shri Mohan Lal Vishwakarma and Others

This petition under Article 226/227 of the Constitution of India has been filed with the following prayers:

(i) issue a writ, order or direction in the nature of Mandamus commanding the respondent No.3, the Chief Justice Allahabad High Court to take appropriate penal action against the opposite party Nos. 1 and 2 viz Shri Mohan Lal Vishwakarma and Shri Rais Ahmad for acting in clear violation of the law and punish the respondent no.1 for committing with willful and deliberate contempt of the Court.

(ii) issue a writ, order or direction in the nature of Mandamus commanding the respondent No.1 not to proceed with the Sessions Trial No. 44 of 2008 pending before the Court of Special Judge Gangster Act, Gonda.

(iii) issue a writ, order or direction in any nature which this Hon''ble Court may deem fit and proper under the circumstances of the case.

(iv) award the cost of the writ petition in favour of the petitioner.

The brief facts necessary for disposal of the present petition are as follows:

The petitioner-Munshi alias Rajesh Tiwari is an accused facing trial in Gangster Case No. 44 of 2008 (State Vs. Munshi alias Rajesh and others) pending in the court of Special Judge, Gangster Act, Gonda/Additional District and Sessions Judge, Court No.9 u/s 147,148, 149, 302, 201, 404 I.P.C. and Section 3 (1) U.P. Gangster Act.

The perusal of the documents filed on behalf of the petitioner reveals that after conclusion of the prosecution evidence the statement of the accused persons u/s 313 Cr.P.C. was recorded on 29.6.2011 and thereafter several dates were fixed for defence evidence and arguments but on none of these dates the petitioner or the other four accused persons, who are facing trial with the petitioner, neither produced evidence in their defence nor get their case argued.

Instead on one of the other grounds, efforts were made to get the hearing of the case adjourned. After recording of the statement u/s 313 Cr.P.C., an application u/s 311 Cr.P.C. was moved on behalf of the accused persons with the prayer that prosecution witness Prakash Chandra Jatav be summoned for cross-examination. This application was first rejected on 12.10.2011. Again the same application was moved which was rejected on 19.10.2011 and thereafter again the same application was moved which was rejected by the court vide order dated 5.11.2011. Since the same application was being moved repeatedly, therefore, the court, while rejecting the said application, observed that this was an effort to delay the disposal of the trial and imposed a cost of Rs. 5000/-on the petitioner. Thereafter an application for transfer of the case was moved before the Sessions Judge which was rejected on 18.11.2011 on the ground that the Sessions Judge has no power to transfer one gangster case to other Special Judge Gangster Act because the Special Judges Gangster Act deals with cases of different districts, therefore he has no power to transfer the case from one district to another district.

In this case the trial court had fixed 16.11.2011 for arguments if parties intends to submit their arguments, failing which the case was fixed on 19.11.2011 for judgment. No agreements were preferred on 16.11.2011. On 19.11.2011 the petitioner along with three other accused persons except accused-Chandra Shekhar moved an application for exemption of personal attendance on the ground that they had to go High Court to consult their counsel, therefore, the pronouncement of the judgment was again delayed.

The grievance of the petitioner is that in this case there was some cutting in the order-sheet dated 13.5.2011 and also on the ground that the petitioner was asked to sign questionnaire u/s 313 Cr.P.C. which were lying blank and the answers were filled by the presiding officer subsequently and it is also a ground that the petitioner is a candidate of Samajwadi Party for the assembly constituency election and he is an advocate by profession.

On behalf of the State it is argued that it is only an effort to further delay the disposal of the case and to create fresh grounds for moving a transfer application. It is further argued that law is applicable to all citizens equally whether he be an advocate or the candidate of assembly election from any party.

So far as the cutting in the order-sheet dated 13.5.2011 is concerned, it does not effect in any manner the rights of the accused or adversely effect his interest because ultimately in this case the statement u/s 313 Cr.P.C. was record on 29.6.2011 while cutting in the order-sheet relates to a date prior to the said date. So far as the argument that questionnaire under Section313Cr.P.C. was blank when he was asked to sign, does not impress this Court at all because in the transfer application, copy of which has been annexed at page no.18 of the petition, it is specifically mentioned that "Sadar Nivedan hai ki prarthi uprokt mukadama me mulzim hai mukadme me prarthi ka 313 Cr.P.C. ka bayan hua jisme prarthi ne safai dene ke liya kaha kintu katipaya karan vus safai ka mauka nahi diya gaya aur mukadama bahas ke liya laga diya gaya. Prarthi dwara dinank 5.11.11 ko safai ke liye prarthna patra prastut kiya ukt prarthna patra ko Pithaseen Adhikari Mahodaya Dwara mu-5000/-rupaya Arth Dand nischit karte hue nirast kar diya aur bahas hetu dinank 16.11.2011 niyat kiya aur nirnaya hetu dinank 19.11.2011 niyat kiya gaya prarthi ko safai saksh pesh karne ka avsar nahi diya gaya."

The aforesaid statement made by the petitioner himself in the transfer application clearly establishes that his statement u/s 313 Cr.P.C. was duly recorded. The points which are being agitated here could have been raised before the Sessions Judge on the administrative side and only after a preliminary inquiry to fix the liability the necessary action could have been taken by the Sessions Judge himself or he may have referred the matter for inquiry to High Court. But it is strange that no such step was taken by the accused, instead this writ petition has been filed.

The statement in the transfer application, that on 5.11.2011 application for adducing evidence in defence was moved, is also not supported by the documents filed by the petitioner in support of his petition. The order dated 5.11.2011 passed by the trial court clearly speaks that on that date application was moved third time u/s 311 Cr.P.C. to summon prosecution witness-Prakash Chandra Jatav. Since the same application was moved third time inspite of being rejected on earlier two occasions, the same was rejected with cost of Rs. 5,000/-and an opportunity was given to the petitioners and other accused persons to argue the case if they so wish and fixed 16.11.2011 for argument and 19.11.2011 was fixed for judgment. It is clear from the perusal of the record that the statement of the accused u/s 313 Cr.P.C. was recorded on 29.6.2011 and inspite of availing of several opportunities to adduce evidence in defence, no defence evidence was produced and efforts were made to get the case adjourned on one or the other ground.

It is true that the accused has a right to cross-examine the witnesses to adduce evidence in defence and to adduce his arguments but it is equally true that the accused cannot be permitted to use his right as a weapon to delay the disposal of the case on his own wish. The court is obliged only to afford sufficient and reasonable opportunity for the aforesaid purposes but court is not bound by the wish of the accused and a criminal prosecution cannot be permitted to run as per the wish and choice of the accused persons.

This Court express its dissatisfaction and anguish on the language used by the petitioner in para 8 of the petition.

In the considered opinion of this Court, this petition is malafide and has been moved only to further delay the disposal of the case and to create a fresh ground for moving a transfer application. There is no merit in the petition. It deserves to be dismissed and is accordingly dismissed.

Learned trial court is hereby directed to dispose of the aforesaid trial positively within a period of one month from the date he receives a certified copy of this order.

Registry is hereby directed to communicate this order forthwith to the court concerned.