Madhu Devi v. State & Ors.

1. By this petition filed under Sections 407/482 of Code of Criminal Procedure (hereinafter referred to as Cr. P.C.) read with Article 227 of the Constitution of India, the petitioner seeks transfer ofthe case bearing SC No.94/2012 in FIR No. 347/2012, registered under Section 302 IPC at PS Gokulpuri, Delhi, pending in the Court of Shri Ramesh Kumar, Additional Sessions Judge-II, Karkardooma Courts, Delhi to some other court.

2. The petitioner happens to be the wife of deceased Akhilesh who was shot in the intervening night of 13/14.09.2002 at about 10.20 p.m. He was taken to the GTB hospital in the injured condition. The saidFIR TR.P. (CRL.) 7/2013 Page 1of[8] 2013:DHC:8227 was lodged on the statement made by the deceased. InitiattyHhercase was registered by the police under Section 207 IPG but later on when he succumbed to the injuries by gun shot, the offence converted to Section 302 IPG and accordingly the charges were framed against the accused persons under Section 302 and other Sections ofIPG.

3. The grievance ofthe petitioner in the present petition is that she is not expecting a fair and impartial justice from the Court of Shri Ramesh Kumar, Additional Sessions Judge-II, Karkardooma Gourts, Delhi. As on 15.03.2013, Additional Sessions Judge, Karkardooma Gourts, Delhi kept on threatening the Investigating Officer during the course of examination. The petitioner has also complained that on 19.03.2013 the 10 was not allowed to give answer in the manner he liked and he was taken into custody by the learned Presiding Judge for about half an hour and she was also threatened by the learned Presiding Judge. The petitioner, because of such conduct of the learned Presiding Judge, is apprehending that justice will not be done in her case as the Presiding Judge was favouring the accused persons.

4. As per the petitioner, she has made a complaint to the Ghief Justice in writing and had even placed a copy ofthe complaint before the learned ASJ with a request to transfer the present case to some other court because of losing faith in the learned ASJ and not expecting any justice in the case from the said particular Judge. It is further the case of the petitioner that the learned Presiding Judge took the said application on record and sent the file before the learned District & Sessions Judge (North East), Karkardooma Courts, Delhi and vide order dated 02.04.2013 the learned District & Sessions Judge (North East), Karkardooma Courts, Delhi dismissed the application of the petitioner and directed the case to be placed before the same Presiding Judge for trial for 06.04.2013.

5. Feeling aggrieved by the order dated 02.04.2013 passed by the learned District & Sessions Judge (North East), Karkardooma Courts, Delhi, the petitioner has now approached this Court reiterating her request for transfer of her case from the said Presiding Judge to some other court.

6. I have heard Id. counsel for the petitioner.

7. Ifthe High Court is shown that (i) a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or (ii) that some question of law ofunusual difficulty is likely to arise^ or (iii) that some ofthe provisions of Cr. P.C. will require passing of such order for the convenience ofthe parties or the witnesses, or (iv) it is expedient for the larger interest ofjustice, it may pass an order for transfer ofthe case to another court under Section 407 of Cr. P. C. TR.P. (CRL.) 7/2013 Page[3] of 8

8. The learned District & Sessions Judge (North East), Karkardooma Courts, Delhi has dismissed the application of transfer moved by the petitioner vide order dated 02.04.2013 on the ground that the same was without any basis or substance for even prima facie forming an opinion or view that complainant could have a reasonable cause or an apprehension that fair trial will not be an outcome in the court of learned ASJ where trial is in progress. •9. Vide order dated 09.04.2013 this Court called for the comments of the learned Judicial Officer, i.e. Shri. Ramesh Kumar, Additional Sessions Judge-II, Karkardooma, Delhi. In his comments, the learned Judicial Officer apprised this Court that the said case was received by his court by way of transfer on 06.10.2012 and by that time 28 PWs had already been examined. The witness PW-29 was the last witness in the said case. He further stated that PW-29, Insp. Pawan Kumar was examined-in-chief on 15.03.2013 and on the same date cross-examined on behalf of accused Sunil Kumar Raghav and his further crossexamination was deferred on behalf of accused Sehzad and Vinod for 18.03.2013. On 18.03.2013, PW-29, Insp. Pawan Kumar was stated to be out of station, therefore, the matter was adjourned for 19.03.2013. On 19.03.2013, PW-29, Insp. Pawan Kumar was cross-examined on behalf of accused Sehzad and Vinod and his further cross-examination was deferred as the witness was not feeling well due to fast. It is further stated that during his cross-examination on 19.03.2013, PW-29, Insp. Pawan Kumar was evasive to the question put forth by the learned counsel for the accused and he was warned by the learned Presiding Judge to reply to the question of learned counsel for the accused first but PW-29, Insp. Pawan Kumar did not improve his conduct. The lO was made to stand in the witness box and thereafter the matter was adjourned for 20.03.2013 as he pleaded that he was not feeling well. The Office has also explained with the help of record that on one occasion the 10 had been summoned through bailable warrants and on many other dates the 10 was reported to be out of station and on 23.03.2013 he had expressed his inability to depose as he was feeling tired. The lO was thus absent on 07.03.2013 and appeared on 15.03.2013 after bailable warrants were finally issued against him. The Officer also explained that he has been making endeavour to dispose of old cases and the present case is one of them.

10. The aforesaid comments of Mr. Ramesh Kumar, Additional Sessions Judge-II, Karkardooma, Delhi seem to be quite resounding. A mere warning given by a judicial officer to the witness so as to depose correctly or to answer the questions put forth by the examining counsel in a proper manner cannot be termed to be as a threatening action against TR.P.(CRL.) 7/2013 the witness on part of the judicial officer. A judge is expected to play an efficacious role while conducting trial of the case. It would be worthwhile to produce the observations of the Apex Court which elaborated upon the role that the presiding judges must play while hearing cases in Mohan lal Shamji Soni v. Union ofIndia, 1991 Supp (1) see 271. The Apex Court observed that "...that the question arises whether the presiding officer of the court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is ^ there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. It is well established and settled principle that a court must discharge its statutory functions- whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done.

11. Thus, the presiding officer of the court has every right to step-in ^ and interfere at any stage ofthe trial proceedings where he finds that a particular witness appearing is not deposing honestly or when the version put forth by it appears to be tainted, as after all, he is not expected to be a mute spectator but play an active role in trial proceedings in order to bring home the truth and administer proper justice. TR.P. (CRL.) 7/2013 Page[6] of 8 A-

12. Having said this, it would not be appropriate to accolmnodate a mere plea on behalf of a petitioner that the presiding judge acted in a biased maimer on the grounds of over-questioning or personally examining a particular witness. Strong reasons with cogent proofs are required to be given in order to claim transfer of a petition to another court. Paying heed to such skimpy pleas without any cogent proof in respect thereof would lead to drastic consequences. It would not only impede the independent functioning of the courts wherein the judges are given ample space and powers to act in a way they want so as to fulfil their ultimately objective of culling out the real truth from the parties/witnesses but would also disparage and undermine the confidence ofthe judicial officers as well.

12. Referring to the observations made by the Rajasthan High Court in Sukh Das and Ors. v. State ofRajasthan andAm., 2004 Cr.L.J 3080 (Raj), it was held that

10. Transfer of a case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefore; only good and sufficient grounds^ clearly set out in the order, may justify the transfer.

11. A transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets i fair and impartial justice. The yardsticic is interest ofjustice.

13. It has been observed in another case Vikas Yadav v. State of Uttar Pradesh, 2004 JCC 43, which has also been relied upon by the learned ASJ, that transfer of a trial should not be ordered on a mere asking, without any material to support even primafacie the allegations made in an application as it would have an adverse impact on the justice delivery system. These observations were also reiterated by the Chhattisgarh High Court in case ofSmt. Rakhi Sharma v. State of C.G. & Others, 2012 (l)CGLJ154.