Full Judgment
1. Heard Mr.Parmanand Sharma, learned counsel for the petitioners and Mr. I.B.Singh, Special Public Prosecutor. The petitioners have filed the present petition under section 407 Code of Criminal Procedure to transfer the proceedings of Sessions Trial No.446 of 2009 State v. Shekhar Tewari and others and Sessions Trial No. 447 of 2009 State of v. Vibha Tewari from the court of Special Judge (Ayodhya Prakaran)/Additional Sessions Judge, Lucknow to the court of Sessions Judge, Lucknow or any other competent court at Lucknow for fair and impartial trial and decision. The petitioners of Crl. Misc.Case No. 1109 of 2011 have challenged the order dated 1.3.2011 passed by the learned court below, whereby the petitioners application seeking permission to re examine Mr. Suresh has been rejected.
2. The petitioners state that learned trial judge has put a piece of evidence collected by him through his personal laptop available on YOU TUBE SERVER and in order to prove it he had summoned Mr. Anant Jananey as Court Witness. Exhibit Kha-5 also shows another piece of statement of complainant Smt. Shashi Gupta, P.W.10, in which she had again made interview to the various TV Channels including NDTV, India News and other TV Channels and she did notname any accused as assailant. She also proved CW-1 Anant Jananey. On the question put by the learned trial Judge from CW-1 whether he interviewed Smt. Shashi Gupta or any other stinger, he replied that he himself had not recorded the said interview, therefore, a request was made to call the said particular person who had actually interviewed her, but the trial judge had denied the said witness to summon that particular person who had actually interviewed Smt. Shashi Gupta as court witness. However, on the application of defence side he has been summoned as accused witness, whereas the status of Mr. Suresh should be a court witness as he was required to prove the particular material which had come from the statement of CW1 Anant Jananey. Thus, according to the petitioners the conduct of learned trial judge in compelling the defence counsel to move an application for summoning Mr. Suresh as defence witness, is prejudicial to the defence , as the accused persons are having no control over the stinger of India News; namely, Mr. Suresh for his appearance and deposition before the court. It is further stated that Mr. Suresh moved an application for adjournment due to his ailment, which was rejected and defence evidence was closed for argument, therefore, relevant evidence which goes to the root of the case has been left out. In the aforesaid backdrop, it is stated that the learned trial judge had himself become the witness against the accused persons as he at his own, collected the piece of evidence in his personal laptop, on which so called confessional statement of accused Shekhar Tewari and Vinay Tewari, while they were in police custody, are said to have beenrecorded by him. Further, he made an attempt to get proved the said material, furnished from his personal laptop by summoning Anant Jananey as CW-1. Learned counsel for the petitioners submits that the entire exercise and conduct of the learned Presiding Officer of the trial court is against the settled norms of administration of free and fair justice. His action closing the defence evidence without recording the statement of Mr. Suresh is certainly causing prejudice to the right of accused to defend themselves and prove their innocence. Thereafter, the petitioners moved an application before the learned Sessions Judge, Lucknow to transfer the trial proceeding of sessions trials from that court to another court of competent jurisdiction, which has been rejected by means of order dated 5.3.2011.
3 .Learned counsel for the petitioners invites the attention of this Court towards the provisions of Section 121 of the Indian Evidence Act, 1872 and submits that it is relevant for consideration. Section 121 of the Evidence Act is extracted below: 121. Judges and Magistrates.- No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. Illustrations (a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court. (b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of thesuperior Court. (c) A is accused before the Court of Session of attempting to murder a police- officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred. In light of the aforesaid provision he submits that once the thing is in personal knowledge, certainly he may be examined as witness to prove the same and if he is required to appear as witness for examination, definitely he cannot be judge in the same very case. On the other hand, Mr. I.B.Singh, Special Public Prosecutor submitted that since the said statement was also on the internet of his mobile, he demonstrated the same before the trial court. The same very statement was also placed through device provided by Mr. Jananey for examination of witness, therefore, it does not make any difference either it was demonstrated from the prosecution side or by the court itself as once the court achieved the knowledge of truth fact, in order to arrive the correct conclusion on the facts, the learned Judge can exercise suo motu power and take note of any such facts as are available on internet either in his personal laptop or he receives it from the different mode. He further submitted that the petitioners 6 and 7; namely; Pal Singh and Gajraj Singh, who have been the shadows of petitioner No. 1 have not agitated against the proceeding in question rather they actively shown their willingness for trial of the case by the present Presiding Officer. So far as closer of evidence of Mr. Suresh is concerned, according to him that has been closed way back, therefore, it is not appropriate stage to raise such question. As the case is at the stage of defence argument, it is not the appropriate stage to re-open the proceedings of evidence.
4. He further submitted that the effort of the petitioners are just to defeat the purpose of speedy trial of the case as well as directives issued by this Court as well as the Honble Supreme Court at several times. Therefore, in any manner no interference is required in this matter by this Court. In reply, the learned counsel for the petitioners submitted that so far as Mr. Pal Singh and Gajraj Singh are concerned, they are acting either on allurement or under pressure of learned trial judge, therefore, their confessions are not so much relevant. So far as the evidence of that very piece is concerned, he further submits that once it was demonstrated as evidence by the learned trial judge himself, it becomes the court property and should be provided for testing it after calling the witness including learned Judge from whose custody it has been given to prove it. He further submits that there is battle between speedy trial and fair trial. The accused are interested to get fair justice by way of fair trial, whereas prosecution side is interested only in the speedy trial whatever material is left out or illegality in the procedure is made, they do not care for it rather interested to ignore so that the trial may be concluded in any manner and the learned trial judge in agreement with the prosecution is proceeding in such way as the petitioners have no hope to get justice from him. In the aforesaid backdrop, it is stated that there is bona fide apprehension in not getting justice from the present Presiding Officer, whereas fair trial is paramount consideration to meet the ends ofjustice. So far as the plea regarding Mr. Pal Singh and Gajraj Singh is concerned that is not very much relevant for consideration, therefore, I leave it at this stage. In order to consider the matter for transfer, the learned counsel for the petitioners placed some judgments, in which principles governing the transfer matter has been laid down, which are discussed herein under:- Indian Appeals (Hurpurshad and Others v. Sheo Dyal and Others and other connected matters reported in Law Report J.C.1876, 287, in which it has been held that as under:- It ought to be known, and their Lordships wish it to be distinctly understood, that a Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts. If the means of knowledge of the Judicial Commissioner of the facts spoken to by him in his judgment, as depending upon his own knowledge, were capable of being tested, it would probably turn out that it depended upon mere rumour or hearsay, and that his evidence as to those facts would not have been admissible if he had been examined as a witness But even if the Commissioner's statement of facts from his own knowledge be taken as evidence, Chundun's chit did not establish a custom as to the extent of shares upon partition, especially as regards immoveable property. As to such property the terms of it were not applicable. It expressly says, " Each sharer will take his share half in money and half in gold, silver, anddebts due," and if the translation in the Cawnpore case is to be relied upon, it says, " half the estate consists of cash, and the other half of silver, gold, and debts," which shews that it was intended to apply only to property of that description. (2000) 6 Supreme Court Cases 204 Transfer Petition (Crl.) No. 183 of 1999, Abdul Nazar Madani Versus State of T.N. and another, With Transfer Petition (Crl.) No.26 of 2000, M. Mohammed Ansari and others v. State of T.N. and another. Paras 7 and 8 of which are reproduced herein under:- Para-7. The purpose of criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witness to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. Para-8. In G.X. Francis case this Court felt that where public confidence in the fairness of the trial is likely to be seriously undermined under the circumstances of the case, transfer petition could be allowed. On finding that there is uniformity of testimony fr om both sides about the nature of surcharged communal tension in that area, the Court found that the local atmosphere was not conducive to a fair and impartial trial which justified a good ground for transfer. There Court rejected the contention of the petitioner State of M. P. Would be unbiased or impartial for dispensing justice. In the peculiar facts and circumstances of the case, the the trial was transferred to and adjoining court. The mere existence of a surcharged atmosphere without there being proof of inability of holding fair and impartial trial cannot be made a g round for transfer of a case, The alleged communally surcharged atmosphere has to be considered in the light of the accusation made and the nature of t he crime committed by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged communal atmosphere, the case should be transferred from the area where existence of such surcharged atmosphere is alleged. This Court had not concluded so generally in francis case as has been argued before us on behalf of the petitioner. Captain Amarinder Singh v. Parkash Singh Badal and Others (2009)6 Supreme Court Case 260. Paras 19 and 20 of which are reproduced hereinunder:-. Para-19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.PC. Para-20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would beat stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.
5. Transfer Petition (Criminal) No. 29 of 2008, Vikas Kumar Roorkewal v. State of Uttarakhand and others. Para 16 of which is reproduced herein under:- Para-16- This Court, on various occasions, had opportunity to discuss the importance of fair trial in Criminal Justice System and various circumstances inwhich a trial can be transferred to dispense fair and impartial justice. It would be advantageous to notice a few decisions of this Court with regard to the scope of Section of Code of Criminal Procedure. In Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418, this Court held as under:- A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shown 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 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 that is not all. The apprehension must not only be entertained, but must appear to the court to be a reasonable apprehension. In Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, this Court has observed as under:- Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion of transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like minigrievances. Something more substantial, more compelling, more imperiling, from the point of view ofpublic justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. In K.Anbazhagan vs. Superintendent of Police (2004) 3 SCC 767, this Court held as under:- Free and fair trial is sine qua non of article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. In Abdul Nazar Madani vs. State of Tamil Nadu (2000) 6 SCC 204, this Court held as under:- The purpose of criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting affair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. It it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witness to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.
6. Jayendra Saraswathy Swamigal, Tamil Nadu v. State of Tamil Nadu and Ors, JT 2005 (9) SC 69, para 22 of which is reproduced hereinunder:- Para-22:-Learned counsel for the petitioner in support of his submission has placed reliance on the following observation made by this court in Gurcharan Dass Chadha v State of Rajasthan, AIR 1966 SC 1418:- A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will 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 fromwhich 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 knot only be done but is 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 person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension.
7. In K. Anbazhagan v Superintendent of Police and Ors, it was held as under:- Free and fair trial is sine qua of Article 21 of the Constitution. It is trite law that justice should not only be done it should be seemed to have been doe. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. The principle laid down in these cases is more or less the same. If there is a reasonable apprehension on the part of a party to a case that justice may notbe doe he may seek transfer of the case. The apprehension entertained by the party must be a reasonable one and the case cannot be transferred on a mere allegation that the is apprehension that justice will not be done. Mr. I.B.Singh, learned counsel for the respondents has cited the following decision rendered in the case of (2010) 5 Supreme Court Case 645 C.Magesh and Others v. State of Karnataka. Para 49 of which is reproduced herein under:- Para-49. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the trial court under Sections 91 and 233 Cr.PC. The applications mainly pertained to securing of certain materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six moths for the completion of the trial and thereafter another three months extension was sought by the trial court. As per section 233, the trial court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The trial court had considered the judgment of the High court of Karnataka in Criminal Revision Petition No. 677 of 2003, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus , we are of the opinion that the trial court has committed no error in rejecting the above applications. Even otherwise there seems to be noprejudice caused to the accused by mere rejection of these application. It is further submitted by Mr. I.B.Singh, learned counsel for the respondents that since as per statement of Mr. Jananey the said C.D. was provided by the Police, it is inadmissible evidence, therefore, it does not cause prejudice to the defence side. He supported the case of defence to prove that interview was given by Smt. Shashi Gupta, though it was taken by different person. The learned Sessions Judge has also observed that the defence would be permitted to produce the persons, who had interviewed Smt. Shashi Gupta in his defence, which establishes that learned Judge is acting very fairly without prejudiceness to any one, but is proceeding to decide the matter expeditiously under the directives of this Court as well as Honble Supreme Court. After hearing the learned counsel for the parties, upon perusal of the record without disputing the proposition of the Honble Supreme Court, I am of the view that whether the evidence demonstrated by the learned Presiding Officer himself from his own laptop has to be proved by the either side is not a question for consideration before me. Only the question for consideration is whether conduct of the learned Judge establishes any pre judicious interest in the matter, which leads to transfer the case from his court to another court. At this juncture, two points are relevant for consideration of present transfer application by this Court- First the effect of demonstration of C.D. by the learned Judge, secondly- closure of evidence of Mr. Suresh. So for as transfer of the case on the event of demonstration of C.D. by the learned Judge is concerned, I am of the view that unless he is called as evidence to prove the same, he is empowered to proceed with the case. As soon as he is asked to appear as witness to prove the evidence produced by him, I hope that definitely he should depart from the proceeding further with the case. So far as the relevancy of second point i.e. closure of evidence of Mr. Suresh is concerned , keeping in view the stage of proceeding of the case, I am of the view that it is not appropriate stage to re-open the case for his evidence. Therefore, it is not good ground for transfer of the case. With the aforesaid observations, both petitions are dismissed.