Bombay High Court
Shivajirao Bhanudas Kardile vs The State Of Maharashtra on 24 December, 2013
Bench: A.M. Thipsay
1 Criminal Application 6324 of 2013.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 6324 OF 2013
1. Shivajirao Bhanudas Kardile
Age : 52 years, Occ : Social work,
R/o Burhannagar, Tq. Nagar,
Dist. Ahmednagar.
2. Rajesh S/o Ramakant Dhawan
Age : 46 years, Occ : Service,
R/o Old Civil Quarter,
Ahmednagar.
3. Bhausaheb @ Sadanand S/o Dayananad Unawane
Age : 40 years, Occ : Service,
R/o Staff Quarter, Civil Hospital,
Ahmednagar.
4. Anil Lahanu Pansambal
Age : 36 years, Occ : Self employed,
R/o Arangaon Road, Kedgaon,
Ahmednagar
At present R/o Bibvewadi
Satara High School Way,
Chal No.10, Ward No. 66-67, Pune.
5. Santosh S/o Rangnath Kotkar
Age : 28 years, Occ : Self employed,
R/o Mhasoba Chowk, Nepti road,
Kedgaon, Ahmednagar
At present At post Sakat,
Tq. Ashti, Dist. Beed.
6. Sunil S/o Maruti Bhonde
Age : 32 years, Occ : Service,
R/o Ambikanagar, Kedgaon,
Ahmedngar.
7. Sachin Anjyabapu Satpute
Age : 30 years, Occ : Service,
R/o Nepti road, Kedgaon,
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2 Criminal Application 6324 of 2013.odt
Ahmednagar
At present R/o Bibvewadi
-Satara High Way, Chal No.10,
Ward No. 66-67, Pune
..APPLICANTS
-VERSUS-
The State of Maharashtra
through the Police Officer,
Kotwali Police Station,
Ahmednagar. ..RESPONDENT
...
Mr. R.N. Dhorde, Senior counsel a/w Mr. Pravin Patil i/b Mr. V.S.
Kadam, Advocate for petitioners.
Mr. P.N. Muley, the APP for Respondent/State.
...
ig WITH
CRIMINAL APPLICATION NO. 6323 OF 2013
1. Sandip S/o Bhanudas Kotkar
Age : 32 years, occ : Agri., & Business,
2. Amol S/o Bhanudas Kotkar
Age : 27 years, Occ : Agri., & Business,
All R/o Eknathnagar, Kedgaon,
Ahmednagar
Presently petitioner Nos. 2 & 3 are
residing at Sai Kala building,
Sanpada Railway Station,
Washi, Navi Mumbai. ..APPLICANTS
-VERSUS-
The State of Maharashtra
through the Police Officer,
Kotwali Police Station,
Ahmednagar. ..RESPONDENT
...
Mr. N.V. Gaware a/w Mr. Shashikiran N. Patil h/f Mr. G.K. Sontakke,
Advocate for petitioners.
Mr. P.N. Muley, the APP for Respondent/State.
...
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3 Criminal Application 6324 of 2013.odt
WITH
CRIMINAL APPLICATION NO. 6403 OF 2013
Shankarrao Vithalrao Raut,
Age : 62 years, Occ : Pensioner,
R/o 403, Vijaya residency,
Near Chhaya Talkies,
Chitale Road, Ahmednagar,
Dist. Ahmednagar.
..APPLICANT
(Ori. Complainant)
-VERSUS-
1. Shivajirao Bhanudas Kardile
Age : 52 years, Occ : Social work,
R/o Burhannagar, Tq. Nagar,
Dist. Ahmednagar.
2. Rajesh S/o Ramakant Dhawan
Age : 46 years, Occ : Service,
R/o Old Civil Quarter,
Ahmednagar.
3. Bhausaheb @ Sadanand S/o Dayananad Unawane
Age : 40 years, Occ : Service,
R/o Staff Quarter, Civil Hospital,
Ahmednagar.
4. Anil Lahanu Pansambal
Age : 36 years, Occ : Self employed,
R/o Arangaon Road, Kedgaon,
Ahmednagar
At present R/o Bibvewadi
Satara High School Way,
Chal No.10, Ward No. 66-67, Pune.
5. Santosh S/o Rangnath Kotkar
Age : 28 years, Occ : Self employed,
R/o Mhasoba Chowk, Nepti road,
Kedgaon, Ahmednagar
At present At post Sakat,
Tq. Ashti, Dist. Beed.
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4 Criminal Application 6324 of 2013.odt
6. Sunil S/o Maruti Bhonde
Age : 32 years, Occ : Service,
R/o Ambikanagar, Kedgaon,
Ahmedngar.
7. Sachin Anjyabapu Satpute
Age : 30 years, Occ : Service,
R/o Nepti road, Kedgaon,
Ahmednagar
At present R/o Bibvewadi
Satara High Way, Chal No.10,
Ward No. 66-67, Pune
8. The State of Maharashtra ..RESPONDENTS
...
Mr. N.B. Narwade, advocate for petitioner.
Mr. R.N. Dhorde, Senior counsel a/w Mr. Pravin Patil i/b Mr. V.S.
Kadam, Advocate for Respondent Nos. 1 to 7.
Mr. P.N. Muley, the APP for Respondent No.8.
...
CORAM : ABHAY M. THIPSAY, J.
JUDGMENT RESERVED :13th December, 2013
JUDMGENT PRONOUNCED : 24th December, 2013
JUDGMENT :
Both these applications can be conveniently disposed of by
this common order, as the applicants in both the applications are the
accused in one and the same case i.e. Sessions Case No. 357/2011
pending before the Court of Sessions at Ahmednagar. Both the
applications have been made by different accused in the said case
praying that the said case be transferred to any other Court of
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Sessions in any other Sessions Division. The grounds on which the
prayer for transfer, as contemplated under Section 407 of the Code
of Criminal Procedure (hereinafter referred to as "the Code"), is
made are also the same in both the applications, viz :- 'that a fair
and impartial trial cannot be had in any Court of Sessions in the
Ahmednagar Sessions Division', and that, 'it is expedient for the ends
of justice that the case be transferred for trial to a Court outside
Ahmednagar Sessions Division.'
2.
For comprehending the basis on which the claim 'that a
fair and impartial trial cannot be had in the Court of Sessions at
Ahmednagar', and that, 'it would be in the interest of justice to transfer
the case to another Sessions Division', has been made, a reference to
the facts of the case would be necessary.
3. The case relates to the unnatural death of one Ashok
Lande. On 19.05.2008 Umesh Lande - the brother of the deceased
Ashok Lande - lodged a report with the police, on the basis of which,
a case in respect of offences punishable under Section 279 of the
Indian Penal Code (IPC) and section 304A of IPC, as also the
offences punishable under the Motor Vehicles Act was registered
against an unknown offender. The case was to the effect that Ashok
6 Criminal Application 6324 of 2013.odt
was given a dash by some unidentified vehicle causing injuries to
him, which resulted in his death. After investigation, the police
submitted an "A" Summary report, which was accepted by the
learned Magistrate on 02.02.2009.
4. On 09.09.2009, the first informant Shankarrao Raut
lodged a complaint before the Judicial Magistrate, First Class,
Ahmednagar alleging that actually the said Ashok was murdered by
some persons, and that, it was not a case of a dash given by a
vehicle, but was a case of assault and killing. On this complaint, the
learned Magistrate ordered investigation, as contemplated under
Section 156(3) of the Code. A fresh First Information Report
alleging commission of offences punishable under section 302 of
IPC, section 201 of IPC, section 120B of IPC, etc., read with section
34 of IPC came to be registered. After investigation, a charge-sheet
has been filed against the applicants and some others.
5. When the transfer applications appeared before this
Court, it was noticed that the first informant Shankarrao Raut had
sent a communication to the Registry of this Court, by fax, praying
that he be heard in the matter. Accordingly, the Registry was
directed to give a notice of the date of hearing of the applications to
7 Criminal Application 6324 of 2013.odt
the said Shankarrao Raut, who subsequently appeared and made an
application for intervening in the matter. He was permitted not only
to assist the learned Additional Public Prosecutor in opposing the
transfer applications, but also to make submissions through his
counsel. Even after his counsel had been heard in the matter, he
himself was also permitted to make submissions, in person, opposing
the transfer applications.
6. I have heard Mr. R.N. Dhorde, the learned Senior
Counsel for the applicants in Criminal Application No. 6324/2013. I
have also heard Mr. N.V. Gaware, the learned counsel for the
applicants in Criminal Application No. 6323/2013. I have heard
Mr. N.B. Narwade, the learned counsel for the First Informant
Shankarrao Raut - the intervenor - as also the intervenor himself, as
aforesaid.
7. Mr. Dhorde as well as Mr. Gaware, both submitted that
the applicants are responsible people and have high status in the
society. It is submitted that the applicant no.1 in Criminal
Application No. 6323 of 2013 is an Ex-Mayor of Ahmednagar
Municipal Corporation and a sitting Corporator. That, the applicant
no.2 is a reputed businessman and both are children of one
8 Criminal Application 6324 of 2013.odt
Bhanudas Kotkar, who has been the Chairman of the Agricultural
Produce Market Committee (APMC) and a renowned political party
in Ahmednagar. The applicant no.1 Shivaji Kardile in Criminal
Application No. 6324/2013 is a sitting M.L.A. and has been a
Minister in the State of Maharashtra previously. He is a member and
office bearer in several societies and is a popular political leader. It
is submitted that the applicants and others have been falsely
implicated in this case, at the instance of political rivals of Shivajirao
Kardile, Bhanudas Kotkar and his two sons -Sandip Kotkar and
Amol Kotkar. It is submitted that though the incident has taken place
on 19.05.2008, the complaint regarding the same was lodged by
Shankarrao Raut only on 09.09.2009 i.e. after a gap of about 16
months from the date of incident, though Shankarrao claims to be
an eye witness to the incident. There are other contentions
advanced suggesting that the applicants have been falsely
implicated.
6. In my opinion, whether there is substance in the
complaint or not, is not a matter requiring consideration in this
transfer application. That is a matter to be decided by the trial Court
and has no bearing on the aspect of transfer. Nevertheless, the
conduct of the First Informant/ Intervener having been highlighted
9 Criminal Application 6324 of 2013.odt
as a factor generating an atmosphere in which a fair trial cannot be
held, the facts of the case, and at any rate, the circumstances leading
to the registration of the offence and the role played by the First
Informant/ Intervener in the matter at various stages, cannot be
altogether ignored. The learned counsel for the applicants submitted
that because of the manner in which the First Informant -
Shankarrao Raut- has been interfering in the investigation and even
in the court proceedings, an atmosphere hostile to the applicants
and the other accused has been created, and that, in such an
atmosphere, an impartial and fair adjudication as to the guilt or
innocence of the applicants and other accused cannot take place. A
number of instances, which, according to the applicants, make it
evident that in the Sessions Division at Ahmednagar, the applicants
are not likely to get a fair trial are mentioned in the applications and
pointed out to this Court.
7. The learned counsel for the applicants submitted that
there has been vast and continuous reporting of the matter in press
right since the investigation stage. It is submitted that because of
the political background of Bhanudas Kotkar, his son Sandip Kotkar
and Shivaji Kardile, their arrest and alleged involvement in the
offences made the matter very sensitive in the locality, and that, the
10 Criminal Application 6324 of 2013.odt
Investigating Agency had been giving publicity to each and every
step and aspect of the investigation by disclosing the same to media.
That, even what the witnesses stated before the police was being
disclosed to the media. According to the applicants, because of the
interference in the investigation, it has been carried out in a biased
and unfair manner. It is submitted that the vast publicity given even
to the trivial matters relating to the investigation, arrest and trial of
the accused persons, has resulted in adverse public opinion against
the applicants and the other accused. It is submitted that the Court
proceedings are being reported in great details, and that, this is
being done, primarily, at the instance of the First Informant and the
Investigating Agency. It is submitted that such adverse publicity and
generation of a hostile atmosphere is bound to affect and influence
the mind of the trial Judge eliminating the possibility of an impartial
and fair trial.
8. I have gone through the Annexures to the applications,
the application for intervention filed by the First Informant, as also
the counter affidavit filed by the Investigating Officer.
9. Indeed, it does appear that the matter is being reported
very widely in the media. Some of the news items, copies of which
11 Criminal Application 6324 of 2013.odt
are annexed to the applications, indeed project the applicants, as if
they are already proved to be guilty. There are news items to the
effect that some Medical Officers had deliberately and under
pressure of some of the accused persons, changed the notes of the
postmortem examination, and that, that the postmortem report has
been changed was confessed by the Medical Officer before the
Police. It was reported in one Marathi daily that the applicant
Shivajirao Kardile had been implicated by one witness, by making a
statement before the police. There are newspaper reports to the
effect that some of the accused persons 'are not co-operating with
the police' and are giving evasive replies. The newspaper reports are
seen to be giving great publicity to the Officers of the Investigating
Agency and the First Informant himself. Also, a Press Note issued by
the First Informant is brought to my notice, wherein there is
criticism of the order granting bail to some of the accused by the
Additional Sessions Judge. The language of the Press Note is not
very temperate. That by itself might not be significant, but in the
same Press Note, the Magistrate, who had remanded the accused
persons into police custody has been described as "brave" and
"fearless".
That a case in respect of a non-cognizable offence was
12 Criminal Application 6324 of 2013.odt
registered even against the counsel of the accused persons, at the
instance of the First Informant, is also significant in the context of
judging the atmosphere prevailing in the locality.
It appears that the trial is attracting the attention of the local
residents because of the political background of some of the accused
persons; and at least on a few occasions, a crowd had gathered in
and around the Court House.
10.
The question is 'whether there are reasonable grounds
sufficient to create a belief in the mind of the applicants that a fair and
impartial trial cannot be had in the Court of Session in the Sessions
Division of Ahmednagar.' Generally such a ground is put forth on
account of the adverse attitude of the Presiding Judge, but there
would be cases where transfer on this ground would be sought
because of the general hostile atmosphere created in a particular
locality against a particular accused. It is well settled that it is not
necessary that the applicant for transfer must be able to show actual
bias in the mind of the Judge, or that because of the hostile
atmosphere prevailing in the locality the Judge is not likely to decide
the case in accordance with law, but it is sufficient, if the applicant
for transfer shows that there are grounds for entertaining such an
13 Criminal Application 6324 of 2013.odt
apprehension. It is also well settled that reasonableness of the
apprehension of bias or prejudice, must be viewed from the standard
of the accused.
11. In this case, I am satisfied that the publicity that is being
given to every stage of the case is certainly unusual, and that, the
reporting is, by and large, against the accused persons.
12. In the counter affidavit filed by the State, the emphasis
is on 'that the applicants are guilty of very serious offences.' The
emphasis is on 'that there is sufficient material to show the
involvement of the applicants in the alleged offences.' These aspects
are certainly not relevant in the context of the present applications.
The only relevant fact mentioned in the counter affidavit is that
there are a large number of witnesses and if the case is transferred
outside the District, it will be inconvenient to the witnesses as well
as to the police machinery. It is also submitted that due to the
reports in the media, a Judge can never be prejudiced.
13. In the application for intervention filed by the First
Informant, apart from denying the contentions of the applicants,
what has been highlighted is that 'terming the trial as 'media trial'
14 Criminal Application 6324 of 2013.odt
only because of the publication of the matter in the newspaper is not
correct, and that, such publicity is not likely to affect the Justice
Delivery System.' It is submitted that the claim that there is no
possibility of a fair and impartial trial taking place in the Court of
Sessions at Ahmednagar is not correct. It is submitted that there are
no legal grounds to transfer the proceedings to another Sessions
Division. There are several other averments in the application filed
by the First Informant, but they only make an attempt to point out
how the applicants are guilty, and therefore, not relevant in the
context of transfer of the case.
14. The necessity of the trial being held in a proper
atmosphere cannot be over emphasized. It has been recognized
time and again by the superior courts and even by the Apex Court.
The trial must be held in an atmosphere, which does not create a
suspicion that there has been or is likely to be an improper
interference in the course of justice. Fair and impartial trial is one of
the prime requisites of administration of justice. A trial may be
rendered unfair due to several factors. Sometimes, the atmosphere
prevalent in a locality may be a cause to affect the proper conduct of
the trial. Sometimes, bias in the mind of the Presiding Judge would
be a factor affecting fairness in a trial. Sometimes, the situation
15 Criminal Application 6324 of 2013.odt
created by the victim or the victim's relatives may be such as can
reasonably create an apprehension in the mind of an accused that he
will not be able to defend himself effectively. Thus the ground
mentioned in clause (a) of sub-section (1) of section 407 of the Code
is too wide and the only requirement would be that on taking an
overall view of the matter the Court should find it to be expedient
for the ends of justice to transfer the case.
15. Undoubtedly, the First Informant/ Intervener might be
aching bonafide and only out of a desire to see that the guilty are
punished. However, the guilt of the accused - howsoever dangerous
and bad they may be- is required to be established by holding a trial,
where proper, full & effective opportunity to defend themselves is
given to the accused. Where a hostile atmosphere against an accused
exists, the accused may find it difficult to defend himself, as even his
counsel would find it very stressful & difficult to neutralize the effect
of such atmosphere, and be at his best. The prosecutor is likely to be
overzealous in attempting to secure the conviction and there is every
possibility of his deviating from his traditional role. He may prefer to
act as per the desire of the First Informant/Intervener rather than
invite criticism of not doing his duties properly. True, these are mere
possibilities, but they are genuine and real. In this case, the
16 Criminal Application 6324 of 2013.odt
interventions at various stages by the First Informant/ Intervener
have been too many and it is quite likely that a detached, calm and
normal as is required for a fair trial cannot be had if the trial is not
transferred outside Ahmednagar Sessions Division. It is primarily
because of the local interest and local publicity generated that the
interventions & interference by the First Informant/ Intervener are
perceived by the applicants as posing a threat to a proper normal &
fair trial. Transferring the case outside Ahmednagar Sessions
Division would put an end to such apprehensions.
16. It therefore needs to be examined as what exactly the
objection of the State - and that of the First Informant - is to the
transfer of the case to some other Sessions Division. As aforesaid,
the emphasis is basically on 'that the applicants are dangerous, they
are seasoned offenders, that, they are guilty, etc.' and only a little
part of the say put forth and the submissions made, deal with the
aspect relevant in the context of the question of transfer. The
convenience of witnesses is given as one of the grounds opposing the
transfer. It is also submitted that there would be danger to the lives
of the witnesses, if they are required to attend any Court outside the
Nagar District.
17 Criminal Application 6324 of 2013.odt
17. This is particularly emphasised by the First
Informant/Intervener, who categorically stated that his life would be
in danger, if he would be required to attend any Court outside
Ahmednagar. It however, transpired that he has already been
provided with adequate police protection.
18. Mr. Dhorde, in this context has pointed out to me that
the First Informant had written a letter to the Hon'ble Home
Minister, Maharashtra State, the Home Secretary and Director
General of Police on 29.07.2013, a copy of which is annexed by the
First Informant to his application for intervention. In this letter, the
First Informant/Intervener has submitted that the applicant - Shivaji
Kardile, should be charged under the provisions of the Maharashtra
Control of Organised Crime Act, 1999 (MCOC Act) and the case
should be lodged in the Special Court (under the MCOC Act) at
Nashik. Apparently, there is no Special Court under the MCOC Act
in Ahmednagar district. The contention of the learned counsel for
the applicants is that this shows that the First Informant/ Intervener
has no real apprehension to go out of Ahmednagar. In view of this, I
had asked the learned counsel for the First Informant/Intervener as
to how the First Informant/Intervener would attend the Court at
Nashik, if he is scared of going outside the Ahmednagar district.
18 Criminal Application 6324 of 2013.odt
There is no satisfactory reply to this, either from the First
Informant/Intervener or his counsel.
19. Mr. Dhorde also pointed out that a number of accused
in the case, who are on bail, have been prevented from entering
within the local area of Ahmednagar district as a condition of bail.
Perhaps, the learned counsel wanted to submit that the perceived
danger lies in the accused persons entering Ahmednagar district and
not in they being away therefrom.
20. After carefully considering the matter, I do not think
that the apprehension expressed by the applicants is feigned one and
the transfer is sought for ulterior motives. The apprehension of the
applicants that they will not get a fair and impartial trial cannot be
said to be unreasonable. It cannot be said the grounds for such
apprehension are non-existent. In my opinion, a case for transfer
outside the Ahmednagar Sessions Division has been made out by the
applicants.
21. When this order was being pronounced, a
communication received from some persons who claim to be the
witnesses in the said sessions case, addressed to the Registrar of this
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Court is placed before me. This communication also speaks of how
dangerous the applicants are, how they have been committing most
serious offences since several years, etc. An apprehension is
expressed that many of the witnesses are old, and therefore, the case
may not be transferred. A grievance is also expressed that the
applicants are delaying the trial of the case.
22. From this communication, my view about the necessity
of transferring the case outside Ahmednagar district is further
strengthened. This communication seems to be a result of the fact
that 'how serious would be the possible hardship caused to the
witnesses and State if the case is transferred outside Ahmednagar'
was specifically questioned and discussed at the time of arguments.
Indeed, the First Informant and the witnesses are creating such an
atmosphere that the applicants apprehension that they would not be
able to defend themselves properly unless the case is transferred,
must be held to be reasonable. As regards the question of
convenience and security of the witnesses, appropriate directions
can be given, to ensure that no prejudice is caused to the First
Informant, witnesses and the prosecution by the transfer if the case
is transferred outside Ahmednagar Sessions Division.
20 Criminal Application 6324 of 2013.odt
23. At this stage, I have heard the learned counsel for the
First Informant/Intervenor and the learned Additional Public
Prosecutor to know if they would suggest the transfer to any
particular Sessions Division now that a decision to transfer has been
taken. However, neither the First Informant/ Intervener, nor the
learned Additional Public Prosecutor makes any submissions in that
regards. It is categorically stated that they do not wish to say
anything in that regard.
24.
Considering all the relevant aspects of the matter and
since the First Informant wanted the provisions of MCOC Act to be
applied to one of the accused persons and the case be tried at
Nashik, where the Special Court under that Act exists, I think it fit to
direct the trial to be transferred to Nashik Sessions Division.
25. As the applicants had agreed in the course of arguments
that they will bear the costs of the witnesses, that would occasion on
account of the transfer, it would be proper to impose appropriate
conditions in that regard.
26. The Applications are allowed.
The Sessions Case No. 357/2011 shall stand transferred
21 Criminal Application 6324 of 2013.odt
to the Court of Sessions in the Sessions Division for Nashik district.
The learned Sessions Judge, Nashik shall assign the case for
trial to any Additional Sessions Judge within Nashik Sessions
Division, as she may think fit.
The applicants, jointly and severally, shall initially
deposit an amount of Rs. 25,000/- in the Court to which the case
would be assigned for trial, to meet the travelling expenses of the
witnesses. The applicants shall continue to deposit appropriate
amounts to meet the expenses towards the witnesses allowance,
from time to time, as may be directed by the trial Court.
The concerned Authorities of the State shall ensure that
proper security is given not only to the First Informant, but also to
the other witnesses.
The Court to which the case would be assigned shall
expedite the trial and endeavour to complete it as early as possible,
and preferably within six months from the date of receipt of the
record and proceedings by it.
Sd/-
(ABHAY M. THIPSAY, J.)
***
sga/-
