Sakthivel. Vs. the Inspector of Police - Court Judgment

Excerpt:
[s.nagamuthu, j.] indian penal code(ipc) - sections 364, 302, 201 -- the learned judge dismissed those petitions and then posted the case for argument on 07.12.2011. in respect of the allegations made against the learned judge, this court called for remarks from the learned judge. the learned iii additional district judge, salem is directed forthwith to transmit the case records to the learned principal sessions judge, erode and the learned principal sessions judge, erode is directed to post the case for hearing on 23.07.2012 on which date the accused is directed to appear before the learned principal sessions judge, erode.prayer:- criminal original petition filed under section 482 cr.p.c., to withdraw the s.c.no.191 of 2010 pending on the file of the additional district and sessions judge, fast track court no.ii, salem and transfer the same to any court at krishnagiri district.order1. the petitioner is the sole accused in s.c.no.191 of 2010 on the file of the learned additional district and sessions judge, fast track court no.ii, salem. he is facing prosecution for offences under sections 364, 302 and 201 of ipc. seeking to transfer the said case from the file of the said court to any other court in krishnagiri district, the petitioner has come up before this court with this petition.2. the facts leading to this petition would be as follows:the accused was married to one hemalatha. but he developed illicit intimacy with one annakili @ annalakshmi. in due course of time, annakili @ annalakshmi insisted upon the petitioner to marry her. unable to bear with the same, according to the case of the prosecution, the petitioner decided to do away with her. as a design to do away with her, he told annakili @ annalakshmi that he would marry her on 23.08.2008 at yercaud. on 22.08.2008, she came to sundar lodge bus stop at salem. it is further alleged that the petitioner took her in his motor cycle from that bus stop to a secluded place within yercaud police station limits, where he strangulated her to death. thereafter, he poured petrol on the body of the deceased and set fire in order to cause disappearance of the evidence. with these allegations, the respondent police filed a final report on 04.11.2009. on committal to the learned sessions judge, salem, the same was made over to the learned additional sessions judge, fast track court no.ii, salem for trial.3. the charges were framed against the petitioner on 21.07.2010 and thereafter, the case was posted for trial on 02.08.2010. on 02.08.2010, number of witnesses were examined on the side of the prosecution and then, the evidence was closed. the accused was also questioned under section 313 of cr.p.c. on 05.01.2011. the case was thereafter posted for examination of the defence witnesses as desired by the petitioner on 07.01.2011. till this juncture, the learned judge presided over the said court was one mr.chandrasekaran.4. the present learned judge, on transfer, took over charge only on 10.01.2011. thereafter, the case was posted for the examination of the defence witnesses by the present officer on the following dates: on 10.01.2011, 19.01.2011, 24.01.2011, 9.02.2011, 14.02.2011, 08.03.2011, 28.03.2011, 19.04.2011, 25.04.2011, 2.5.2011, 16.5.2011, 19.5.2011, 23.05.2011, 6.6.2011, 13.06.2011, 28.06.2011, 5.7.2011, 11.07.2011, 1.8.2011, 8.8.2011, 22.8.2011, 6.9.2011, 12.9.2011, 13.9.2011, 20.9.2011, 26.09.2011, 17.10.2011, 18.10.2011, 1.11.2011, 2.11.2011, 3.11.2011, 9.11.2011, 29.11.2011, s14.12.2011, 19.12.2011, 23.01.2012, 5.3.2012, 7.5.2012. on all these dates, citing one reason or the other, the petitioner was going on taking adjournments. quiet naturally, the learned judge insisted for the examination of the defence witnesses so that the case could be disposed of.5. on 19.12.2011, when the case was taken up before the trial court for examination of defence witnesses, the learned counsel on record for the accused before the trial court withdrew his appearance. the accused was also absent. therefore, the court had to issue non-bailable warrant for the arrest of the petitioner. thereafter, he surrendered before the court on filing a petition seeking to recall the said warrant. accordingly, the learned judge had recalled the warrant. thereafter, the case was listed for examination of the defence witnesses. at that juncture, the petitioner has come up with this petition on 15.12.2011 seeking transfer of the case to any other court in krishnagiri district.6. in the affidavit filed by the petitioner, he has raised, inter alia, the following grounds:(i) it is stated in the affidavit that he filed a petition before the learned judge under section 91 of cr.p.c. seeking certain documents and also to recall p.ws.1, 4 and 10. the learned judge dismissed those petitions and then posted the case for argument on 07.12.2011. it is alleged that later on, he engaged a new counsel to appear for him. when the new counsel engaged by him wanted time to go through the records, the learned judge declined to give time and insisted him to argue the matter.(ii). it is further stated in the affidavit that one mr.ravi, who is a leading advocate practicing at salem and athur is closely related to the deceased. in paragraph 8 of the affidavit, the petitioner has stated that mr.ravi  might have  influenced the mind of the learned judge. it is further alleged that mr.ravi is presently, the secretary of the bar association at athur. it is also alleged that the judge is trying to dispose of the case in a hasty manner without offering sufficient opportunity to the petitioner. it is further alleged that on 14.12.2011, when the case was taken up for examination of defence witnesses, the counsel on record filed a petition seeking adjournment. at that time, the learned judge declined to receive the said petition and stated that it was a nuisance. it is further stated that the learned judge was informed that the counsel on record was hospitalised and it would take some time for his recovery. but the learned judge dismissed the adjournment petition and adjourned the case on 19.10.2011 for arguments by the defence counsel. thus, without offering sufficient opportunity, he tried to convict the petitioner. thus, according to the petitioner, he has lost confidence in the presiding officer. it is, on these grounds, he has filed this petition for transfer.7. in respect of the allegations made against the learned judge, this court called for remarks from the learned judge. the learned iii additional district judge, salem has sent his remarks under letter d.no.3609/2012, dated 03.07.2012. in paragraphs 2 to 7 of the remarks, the learned judge has stated as follows:"2. i submit that contention para 4 is false one. i submit that the case s.c.no.191/2010 was assigned to this court by the principal district judge on 7.6.2010. on appearance of the accused, charges under sections 364, 302 and 201 of ipc were framed on 21.7.2010. the case was posted for trial on 2.8.10 and evidence were recorded by my predecessor and prosecution evidence were examined and then closed, and the accused was examined in 313 cr.p.c. on 5.1.11 and the case was posted for defence witnesses on 7.1.11. this proceedings and recording the evidence was done by my predecessor thiru.chandrasekaran.3.i further submit that i have not recorded any evidence in this case further. i have joined as additional district judge in this court only on 10.1.11. further, i submit that i have not recorded any evidence in this case. the allegations contained in para nos.4, 5 are false.4.further, i submit that the case was posted for defence witness on 7.1.11. from that date, the case was adjourned to following dates : on 7.01.2011, 10.01.2011, 19.01.2011, 24.01.2011, 9.02.2011, 14.02.2011, 08.03.2011, 28.03.2011, 19.04.2011, 25.04.2011, 2.5.2011, 16.5.2011, 19.5.2011, 23.05.2011, 6.6.2011, 13.06.2011, 28.06.2011, 5.7.2011, 11.07.2011, 1.8.2011, 8.8.2011, 22.8.2011, 6.9.2011, 12.9.2011, 13.9.2011, 20.9.2011, 26.09.2011, 17.10.2011, 18.10.2011, 1.11.2011, 2.11.2011, 3.11.2011, 9.11.2011, 29.11.2011, s14.12.2011, 19.12.2011, 23.01.2012, 5.3.2012, 7.5.2012 for various reasons on request of the accused. meanwhile, the accused changed his counsel. at one stage on 19.12.2011, the counsel for the accused reported no instruction and filed a memo to that effect, which was recorded and therefore, nbw was issued by this court. the conduct of the accused before the court shows that he is not intent to conduct the trial sincerely. it seems that the accused want to protract the case.5.further, i submit the allegations contained in para 8 is false. i did not know mr.ravi practicing advocate and the secretary to attur bar association. i beg to submit that the hon'ble high court may kindly be pleased to order vigilance enquiry with regard to this allegation and bring to light the truth to the hon'ble high court. i beg to take action against the concerned advocate for pleading such allegations for getting favourable order. i am denying the allegations contained in para 8 of the petition as false one.6.i further submit that on 14.12.11, the counsel for the accused had filed a petition to adjourn the case, contending that the counsel on record was hospitalized, but not filed any medical certificate and dismissed the petition, but adjourned the case for defence arguments. it is false to state that i have thrown the above petition on the face of the counsel from the dias.7. i further submit that the allegations in the petition is fictitious one. the petitioner with intention knowingly interposed false allegation to prejudice the hon'ble high court and i pray the hon'ble high court to consider the above submission and thus render justice."8. when this matter was taken up for hearing on the earlier occasion and the remarks of the learned judge were brought to the notice of the learned counsel for the petitioner, he submitted that the petitioner would file an affidavit withdrawing the allegations. it was pointed out to the learned counsel for the petitioner that since the learned judge against whom the allegations have been made is prepared to face an enquiry by vigilance department, it would be appropriate to hold independent enquiry by some agency. it was also pointed out to the learned counsel for the petitioner that for any reason, if the remarks of the learned judge is found incorrect, certainly some action could be initiated against him. but to the contrary, if it is found that these allegations made by the petitioner are false, the petitioner may have to face action for maligning the institution. then, the learned counsel for the petitioner submitted that the petitioner is prepared to withdraw all these allegations and also to offer an unconditional apology for having made these allegations against the learned judge. accordingly, the petitioner has filed an affidavit dated 10.07.2012 wherein in paragraphs 2 and 3, he has stated as follows: 2.i humbly state that the respondent herein registered the above case against the petitioner herein under sections 364, 302 and 201 ipc. in the above case, the respondent has filed charge sheet and the same was taken into file of learned additional district judge (ftc ii), salem in s.c.no.191 of 2010.3.i respectfully submit that i have filed the above criminal original petition to withdraw the s.c.no.191 of 2010 pending on the file of the additional district and sessions judge (ftc ii) salem and transfer the same to any court at krishnagiri district by alleging some allegation against the learned trial judge. i hereby am withdrawing all the allegations which were made against the learned trial court judge who is trying s.c.no.191 of 2010 in the above petition for transfer and for which i am submitting my unconditional apology before this hon'ble court. further, hereby undertake hereafter i will not make any such allegation against the learned judge before the any court of law. hence this hon'ble court may be pleased to record this undertaking affidavit and pass appropriate orders in the petition and thus render justice.9. the learned counsel mr.s.prabakaran, representing the counsel on record would submit that the petitioner is prepared to face the trial and to co-operate with the court for the early disposal of the case. he would further submit that as of now, the petitioner wants to examine a lone defence witness, namely, the sub-divisional engineer (internet), bsnl, salem to speak about the ownership of the landline (connected with internet) phone no.0427-241397. the learned counsel further submits that if this witness is summoned and examined, immediately, the petitioner's counsel on record before the lower court would argue the matter and thereafter, the case can be disposed of. the learned counsel for the petitioner would further submit that in view of the strained situation, it may not be conducive to allow the trial to be taken up in the same court, instead, the learned counsel would pray that the case may be transferred to any other court where the petitioner would appear and ensure his fullest co-operation for early disposal of the matter. the said statement is recorded.10. the learned public prosecutor would oppose for the transfer of the case. according to him, irresponsible allegations have been made against the judge and if transfer is effected, it would amount to forum choosing.11. i have considered the above submissions and also perused the materials available on record.12. as i have already stated, the allegations made against the learned judge are totally baseless. one of the main allegations made against him is that the judge is virtually preventing the accused to argue the case so as to give conviction to him. this allegation, in my considered opinion is highly irresponsible. in paragraph 4 of the remarks, the learned judge has given the details of the dates on which this case was posted before the trial court for the examination of defence witnesses. from 07.01.2011 onwards for about 1 = years, the case was getting on adjourned for several hearings only at the instance of the petitioner for examination of the defence witnesses. apart from that, on one occasion, even the counsel on record withdrew his appearance and the accused was also absent, thus, paralysing the entire proceedings. thus, the petitioner has made every attempt to unnecessarily drag on the proceedings. therefore, in my considered opinion, the first allegation that the learned judge has been hastily trying the case is baseless and therefore, the same is rejected.13. coming to the next allegation in the affidavit that the learned judge might have been influenced by one mr.ravi, a practicing advocate and the secretary of attur bar, who happens to be a relative of the deceased, is not only irresponsible, but also highly condemnable. simply because, the deceased had a relative as an advocate, it can not be said that that the said advocate would have influenced the mind of the judge. absolutely, there is no cause or reason for the petitioner to make such irresponsible and defamatory allegation against the learned judge. the remarks of the learned judge and his service records would go to show that he has been throughout maintaining clean record of service. his service is unblemished. this allegation would have been really wounded the feelings of the learned judge. it is because of this reason, probably, the learned judge has submitted that vigilance enquiry may be ordered into in order to find out the truth and he has sought for permission to him to proceed against the accused, if the allegations are found to be false. the very offer made by the learned judge would indicate the wounded feelings of the judge who has got unblemished record of service.14. judiciary enjoys absolute independence and majesty. the entire judicial system is built upon the confidence of the people. no attempt should be allowed to be made by any agency to weaken the confidence of the people. making irresponsible allegations against the judge should be deprecated. in this case, having realised the fault, the petitioner has at lost come up with an affidavit wherein he has stated that he withdrew all the allegations against the judge. the said statement is recorded. he has also tendered unconditional apology for having made such irresponsible allegations against the judge. the unconditional apology is also accepted. thus, the second ground raised by the learned counsel for the petitioner is also rejected.15. however, in view of the above developments and the strained situation, i am also of the view that, as rightly pointed out by the learned counsel for the petitioner, it would be in the interest of justice to transfer the case to some other court. such a transfer would not mean that this court has accepted the allegations made against the judge. as i have already stated, the transfer is effected only in the interest of justice and not by accepting any allegation made against the judge. after all, justice should not only be done, but also appear to be done. to repeat, the allegations made against the learned judge are rejected as baseless, however, transfer is made only in tune with the above good old maxim.16. as has been stated by the learned counsel for the petitioner before the court and in the interest of justice, the petitioner would be entitled to summon the lone witness, namely, the sub-divisional engineer (internet), bsnl, salem to speak about the details of land line (connected with internet) phone no.0427-241397. the learned counsel for the petitioner would submit that the petitioner would not ask for any adjournment and as soon as the said witness is examined, the learned counsel for the accused before the lower court will advance his arguments and thereafter, the court may deliver the judgment. the said undertaking is recorded.17. in view of the above, it is made clear that the petitioner shall not file any other petition to recall any witness or examine any other witness except the above said lone witness. the learned counsel for the petitioner would further submit that there is two other criminal original petitions namely, crl.o.p.nos.28425 and 25401 of 2011 are pending before this court filed by the petitioner and the petitioner does not press the same.18. the learned counsel for the petitioner would submit that the petitioner would be satisfied, if the case is transferred anywhere in the state of tamil nadu. when the learned counsel for the petitioner was asked to suggest a place of court, he himself suggested that it may be to any court in erode which is a nearby district.19. in the result, the petition is disposed of transferring the case in s.c.no.191/2010 pending on the file of the learned additional district and sessions judge, fast track court no.ii, salem to the court of principal sessions judge, erode. the learned iii additional district judge, salem is directed forthwith to transmit the case records to the learned principal sessions judge, erode and the learned principal sessions judge, erode is directed to post the case for hearing on 23.07.2012 on which date the accused is directed to appear before the learned principal sessions judge, erode. thereafter, without any further delay, the petitioner would be permitted to examine the sub-divisional engineer (internet), bsnl, salem, as a defence witness and on completion of the examination of the said witness, the petitioner shall complete his arguments also in a day or two. thereafter, the learned principal sessions judge, erode shall dispose of the case within a period of four weeks. consequently, connected miscellaneous petition is closed.