Zora Singh vs State of Haryana

P.K. Jain, J.—Zora Singh petitioner along with Harvinder and Balli Singh sons of Jasbir Singh and Mohna Singh son of Mukhtiar Singh, and Jasbir Singh, is facing trial for the offences under Sections 302/307/34, Indian Penal Code and Section 25/27 of the Arms Act, for causing murder of Avtar Kaur wife of Sher Singh, in the Court of Shri L.N. Mittal, Additional Sessions Judge, Sirsa. He has moved the present petition u/s 407 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for the transfer of the said sessions case from the said Court to some other Court of competent jurisdiction.

The aforesaid case is based of F.I.R. No. 178 dated 27-8-1991, registered at Police Station Bara Gudha. On 3-3-1992, case F.I.R. No. 35/1992 was registered at the said Police Station for the offences under Sections 302/120B and 392/397 of the Indian Penal Code against Mithu Singh, Mukand Singh, Mahal Singh and Roop Singh for committing the murder of Jasbir Singh (accused in the aforesaid case), Dilawar Singh and Mukhtiar Singh. As per allegations made in the FIR, the motive forthe crime was that Avtar Kaur wife of Sher Singh was murdered on 26-7-1991 and in that case Jasbir Singh and his two sons and Zora Singh (Petitioner) had been named as the assailants. The subsequently registered case based on FIR No. 35/92, State v. Mukant Singh has been disposed of by Shri L.N. Mittal, Additional Sessions Judge, Sirsa, by his judgment dated 21-1-1995/23-1-1995. By the said judgment, Mithu Singh has been convicted and sentenced for the offences u/s 302/34, Indian Penal Code and the remaining three accused Mukand Singh, Sher Singh and Tota Singh have been acquitted. Sessions case State v. Zora Singh based on FIR No. 178/1991 could not be tried and disposed of by the said Additional Sessions Judge on account of stay of proceedings by an order passed by another Bench of this Court in certain proceedings, which now stands disposed of.

In the present petition, it has been alleged that while deciding Sessions case No. 27/94, State v. Mukand Singh, the Additional Sessions Judge has given a categorical finding that the motive for committing the murder of Jasbir Singh, Dilawar Singh and Mukhtiar Singh directly related to the murder of Avtar Kaur wife of Sher Singh which is the subject matter of the present pending case. It has also been stated that the copy of the FIR No. 178/91 and the copy of the charge-sheet filed u/s 173 of the Code were produced and relied upon by the defence. It is thus alleged that the judgment dated 21-1-1995, passed by the Additional Sessions in the aforesaid case gives rise to a bona fide apprehension in the mind of the petitioner and his co-accused that they would not get justice and fair trial from the said Court and, therefore, the case be transferred to some other Court of competent jurisdiction.

The application has been opposed by the respondent-State as well as the complainant Sher Singh. It has been stated in reply that the present petition is not maintainable in view of the proviso to Section 407(2) of the Code inasmuch as the petitioner did not move the application before the Sessions Judge for the transfer of the case u/s 408 of the Code before approaching this Court. It has also been stated that the petition does not reveal any sort of prejudicial behaviour on the part of the Additional Sessions Judge, Sirsa, who is trying the case and no ground for transfer of the case has been made out.

5.I have heard the learned counsel for the parties.

As regards the question as to whether any ground for transfer of the case has been made out, the factual position, as contained in paras 1, 2,4 to 8 of the petition have not been denied. Even the averments made in para 3 of the petition has not been denied but for the fact that it has been pleaded that Mithu Singh and others were falsely implicated in the case. A copy of the judgment passed by the Additional Sessions Judge, Sirsa, in the aforesaid Sessions Case - State v. Mukand Singh has been placed on the record. From a bare perusal of paras 2, 28, 30, 33, 36 and 42, it is evident that the Additional Sessions Judge has given a categorical finding to the effect that the enmity between the parties due to the murder of Avtar Kaur was the motive for the accused-party for the commission of the murder of Jasbir Singh and two others. Admittedly, Jasbir Singh is named as one of the accused persons in the Sessions case - State v. Zora Singh.

In an application for transfer, what has to be considered is whether the accused has ground for reasonable apprehension that he may not have an impartial trial. If the actions of a judicial officer, though susceptible of explanation and traceable to superior sense of duty, are calculated to create in the mind of the accused an apprehension that he may not have an impartial trial, the case should be transferred. It is thus clear that only a reasonable apprehension in the mind of the accused that the trial Judge is biased is enough to order transfer of the case, although the trial Judge may not be actually biased and the circumstances may be capable of explanation.

In the case in hand, as already stated, the Additional Sessions Judge has given a definite finding in the Sessions case State v Mukand Singh that the murder of Avtar Kaur wife of Sher Singh was a strong motive on the part of the accused persons to commit the murder of Jasbir Singh and others. Jasbir Singh is named as one of the accused in the present case. Where a trial Judge in a counter case has clearly formed a strong opinion having considerable bearing on the other case, it would be just and appropriate that the other case pending in this Court should be withdrawn and transferred. The trial Judge, consciously or sub-consciously would definitely be influenced by his findings in the earlier Sessions case disposed of by him. Although as a matter of practice, the cross cases should be decided by the same Court but simultaneously, so that no occasion arises forgiving rise to any apprehension in the mind of the accused persons for the prejudicial approach of the trial Judge. In these circumstances, I have no hesitation in holding that the petitioner has definitely made out a just ground for the transfer of the aforesaid Sessions case from the Court of Shri L.N. Mittal, Additional Session Judge, Sirsa.

Shri S.S. Narula, Advocate, learned counsel appearing on behalf of Sher Singh, complainant, has contended that the present petition is not maintainable in view of the proviso to Sub-section (2) of Section 407 of the Code inasmuch as the petitioner did not approach the Sessions Judge, Sirsa in the first instance u/s 408 of the Code. The learned counsel has placed reliance upon two judgments of the Delhi High Court rendered in Avinash Chander Vs. The State, and Suresh Kumar Vs. State and Others, .

On the other hand Shri Baldev Singh, Advocate, learned counsel for the petitioner, has argued that an Additional Sessions Judge is not subordinate to the Sessions Judge and as such section 408 is not applicable to a case pending in the Court of Additional Sessions Judge. The learned counsel has placed reliance upon a judgment of the Kerala High Court rendered in State of Kerala Vs. Reny George and Others, . It has also been argued by the learned counsel that since the charge has already been framed in the case, the Sessions Judge is not competent to withdraw and transfer the said case from the said Court to another Court in view of the provisions of Sub-section (2) of Section 409 of the Code.

Although the legal plea raised by Shri S.S. Narula, Advocate, learned counsel for the complainant cannot be said to be without merit and requires a closer examination, but not in the present case. The obvious reason is that the present case relates to the FIR No. 178 - registered on 27-8-1991. A period of 4 years has already elapsed and the trial is yet to take place. Whatever the reasons may be for such a delay in concluding the trial, further delay based on a legal technical plea should be avoided. Such a plea can be examined in some other appropriate case. This is a fit case where this Court should exercise its powers u/s 482 of the Code to meet the ends of justice as was done by a Division Bench of Calcutta High Court in Manoj Majumdar Vs. State of West Bengal, .

In order to avoid further delay and in the interest of justice, the Sessions case State v. Zora Singh, based on FIR No. 178/91, registered at Police Station Bara Gudha, is withdrawn from the Court of Shri L.N. Mittal, Additional Sessions Judge, Sirsa, and is hereby transferred to the Court of Sessions Judge, Sirsa, for disposal. It is directed that the learned Sessions Judge, Sirsa, shall proceed with the trial expeditiously.