Shashank Mahule vs State Of Madhya Pradesh

This application under Section 407 of the Code of Criminal Procedure has been filed seeking transfer of the Session Trial No. 207/2012 pending

before the Court of First Additional Session Judge, Balaghat to another court on the ground that the applicant has reasonable apprehension that no fair

trial can take place in the aforesaid Court.

The applicant has stated that in this case Investigation Officer Praveen Kumar Bhuria (PW-21) who appears before the Court on his sweet will was

relieved without giving proper opportunity of complete cross examination. At the time of recording of the evidence of the witness learned Judge of the

trial court recorded version of the witness as per his sweet will despite of the correct facts which were narrated by the witness and also suggested,

protected and directed the witness in such manner no correct and relevant facts came on record. He further stated that during the examination under

Section 313 of Cr.P.C., certain unnecessary questions were asked but about which no question or answer has been recorded. The photographs which

have been admitted in the evidence copy whereof has not been supplied despite of demand made by the accused person. This conduct of the

Presiding officer is sufficient to show that no fair trial can take place there as the Presiding officer is prejudiced to the applicant.

Learned counsel appearing on behalf of the applicant has also placed reliance on two judgments of this Court in Punit Pandey vs. State of Madhya

Pradesh reported in LAWS (MPH) 2006 2 65 and Abha Ghatage vs. Chandrashekhar Ghatage reported in LAWS (MPH) 2013 4 23 and also placed

reliance on two judgments of Hon'ble the Apex court in Ag vs. Shiv Kumar Yadav reported in LAWS (SC) 2015 9 30 and Rajinder Singh alias Manu

vs. State of West Bengal reported in LAWS (CAL) 2004 5 27 but none of them except the case of Punit Pandey (supra) are related to the transfer of

the criminal case. Relevant judgment is only Punit Pandey (supra), in which, learned Chief Judicial Magistrate passed an order and asked the accused

to enter upon his defence and give list of the defence witnesses before examination of the prosecution witnesses and examination of the accused,

which is not in accordance with law. Considering the aforesaid hasty action to dispose of the case, the apprehension of the parties that no fair trial will

take place was accepted and the case was transferred. Learned counsel has also made much emphasis on paragraphs no. 19 of Rajinder Singh alias

Manu (supra) which is reproduced here as under :-

It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Confidence in the

administration of justice is an essential element of good Government, and reasonable apprehension of failure of justice in the mind of the litigant public

should, therefore, be taken into serious consideration. Courts should not fail to remember that it is their duty no less to preserve an outward

appearance of impartiality than to maintain the internal freedom from business. Transfer in certain cases is made not because the party approaching

the Court will not have a fair and impartial trial but because the party has reasonable apprehension that it will not have such a trial. Examination of the

accused under Section 313 Cr.PC amounting to lengthy cross-examination, refusal to give opportunity to cross-examine the witnesses etc. are some of

the instances where transfer of a case is justified. When the whole procedure was extremely arbitrary and in direct contravention of law and the

Judge displayed plenty of zeal and want of judicial spirit, the apprehension entertained by a party that it will not have a fair trial is justified. In the case

on hand, the way the ld. Judge dealt with the case, the manner in which questions were put to different accused persons during their examination

under Section 313 Cr.PC and some observations made in the orders lead to suggest that he has already formed an idea not conducive to fair trial, and

in fact some of the ld. counsels during argument before this Court expressed their apprehension in this regard. In such circumstances, it is desirable

that the case should be dealt with by a Judge other than Mr. LA. Shah.

Having heard contentions of learned counsel for the applicant and on perusal of the record, in view of this court, the application has no substance and

main cause to file this application is only to close the right to further cross-examination of the applicant. I have gone through the evidence and

statement of the witnesses. In view of this court, prima facie there is nothing objectionable thing in recording of the evidence. It is duty of the

Presiding officer to control cross examination. During this practice if learned counsel of the applicant is stopped to continue the cross examination on

the line which has no relevance and permissible cannot be said to be objectionable.

So far as the allegation with regard to non-recording the evidence as narrated by the witness is concerned, it cannot be considered unless and until the

same objection has been taken before the same Court as only the court concerned is in the better position to point it out what happened in his Court.

Similarly, the other contention that no question has been recorded which was put to accused during recording of the examination of the accused has

also no substance. First of all, the same objection cannot be considered unless the same objection was taken before the same court. Apart from it,

there is nothing on record to infer to adverse effect of it on the accused, on the aforesaid ground it cannot be said that the Judge has decided the fate

of the case.

So far as refusing the prayer for adjourning the case for further cross examination of the witness Praveen Kumar Bhuria (PW-21) is concerned,

prima facie it does not appear that the order is arbitrary and passed in the circumstance and in the manner which reflects prejudice attitude of the

Presiding officer. The witness has remained present on 6.7.2018, 4.12.2018, 5.12.2018 and 12.1.2019 but the cross examination was not concluded as

per the applicant and his prayer to adjourn the case for further cross examination was rejected. Learned trial court has not committed any error as the

cross-examination was so exhaustive and only cross examination part contains 22 pages. However, number of pages are immaterial but here learned

counsel is unable to point out that on what point no cross-examination has been done. Nowadays it is prevalent practice that unnecessary or lengthy

cross examination is being made and Eye witness and Investigating officer are being harassed and compelled to appear repeatedly. The present case

is also of such nature.

No doubt cross-examination is a fundamental right of the accused and he cannot be deprived of that. So far as the case of Rajinder Singh @ Manu

(supra) is concerned, there was several accused persons and some of the accused persons were convicted without giving opportunity of cross-

examination to them. In the aforesaid background Hon'ble the Apex Court has expressed its view in the relevant paragraph no. 19 which is not

relevant here and it cannot be said that the applicant has been deprived of to exercise its constitutional right of cross-examination. A case from any

Court cannot be transferred merely on the ground that some or all orders have been passed against the person concerned. If it is allowed then it will

be the misuse of the process of the Court and if this criminal case is transferred on the aforesaid ground it will provide a boost to the applicant to

compel other Presiding officer to conduct trial as the manner suitable to him and demoralize the present Presiding officer. Therefore, in view of this

court, this is not a fit case to exercise the power inferred under the Code of Criminal Procedure. Hence, this petition being devoid of merit is

dismissed.