Bombay High Court
Mehendi Qasim Sheikh And Anr vs The State Of Maharashtra on 27 August, 2015
Bench: A.R. Joshi
appln-468-2015.doc
Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION No. 468 of 2015
Mehendi Qasim Sheikh and Anr ..Applicants.
Versus
The State of Maharashtra ..Respondent.
Ms Apeksha Vora, Advocate for the Applicants.
Mrs P.P. Bhosale, APP for the State.
ig CORAM : A.R. JOSHI, J
DATE : 27th August,2015.
P.C. :
1) Heard learned appointed Counsel for the applicant
original accused in Sessions Case No. 290/2011.
2) Initially, present application was filed as a Criminal
Revision Application No. 350 of 2015. However, this Court vide
order dated 31st July, 2015 directed the present application to
be registered as an application under section 407 of Cr.P.C.
Said order was passed by this Court (Coram M.L. Tahaliyani, J).
Thereafter, the present application was required to be
numbered as Criminal Application No. 468 of 2015. Earlier on
hearing the learned appointed Counsel, an ad-interim relief was
granted by this Court on 31st July, 2015 directing the trial Court
appln-468-2015.doc
not to proceed further with the matter.
3) The present application for transfer is mainly on the
ground that the concerned trial Court is bias and the Trial Court
not following due procedure of law during the trial. The
arguments were heard at length on the earlier date i.e. 25 th
August, 2015 and when the matter was taken up for dictating
the order, the learned appointed Counsel prayed for time to get
instructions from the family members of the applicant no.1
whether to withdraw the application and / or to proceed
further in the matter pending before the Sessions Court.
However, today it is submitted by the learned Counsel that she
has no instructions to withdraw the present application and as
such the present order is passed after hearing the submissions.
4) Initially, in November, 2010, CR No. 197 of 2010 was
lodged against the present applicant no.1 for the offences
punishable under different Sections of IPC and mainly for
offence under section 376 of IPC. Even the applicant is also
charged for the offence under Section 14 of the Foreigners Act,
1946. As per the report of the P.I. Bagwe, the applicant is a
Bangladeshi Citizen. The allegations against the present
applicant were that he had committed forcible sexual inter-
course and molested seven girls of one family. Out of said seven
girls, six are the minor girls. Further allegations were that for a
appln-468-2015.doc
period of four to five years at different places and at different
times such incidents of forcible sexual intercourse took place.
Various applications were made during the trial by the
applicant no.1 for grant of bail but without any success.
Presently, the applicant no.1 is in custody and apparently
represented by appointed Counsel. Surprisingly said Counsel is
present applicant no.2 in this transfer application. This aspect
is dealt in detail in the later part of this order.
5)
The trial started in the year 2012 after framing of the
charge in the year 2011. Apparently, the trial lingered for three
years and presently the trial is at the fag end and it is so
mentioned by the Police Inspector, one Santosh Bagwe, who
has filed an affidavit in the present application objecting for the
transfer of the case to another Court. Said P.I. Bagwe is the
Officer attached to the Crime Branch, D.C.B. C.I.D., Unit-I,
Mumbai.
6) In the affidavit, it is further disclosed that initially the
present applicant had engaged his own advocate one Mr Wahab
Khan. However, subsequently, said Advocate withdrew his
appearance and then another Advocate Mr V.D.More under the
Legal Aid Scheme and one more Advocate Mr Jadhwar was
appointed as Amicus Curiae. Thereafter, again in March, 2013
the present applicant no.1 filed an application for appointment
appln-468-2015.doc
of his earlier Advocate Mr Wahab Khan. However, this request
was denied by said Advocate. But he offered to assist the trial
Court as Amicus Curiae. As such, Mr Wahab Khan was
appointed as Amicus Curiae. The record of the trial Court
shows that earlier said appointed Amicus Curiae Mr Jadhwar
was replaced by said Advocate Wahab Khan. Thereafter, again
the applicant filed an application for engaging a private
advocate, but as the applicant no.1 failed to engage advocate,
the trial Court appointed the present learned Counsel Ms
Apeksha Vora to act as Amicus Curiae for the Court. On this
also on or about 3rd December, 2013 the applicant prayed
before the learned trial Court that again he wanted to engage a
private lawyer and did not want this Amicus Curiae which was
appointed by the Court. Thereafter, again on or about 26th
February, 2014 an application was filed by Amicus Curiae
before the trial Court mentioning that the present applicant
no.2 wanted to withdraw herself from the matter. It is also
further mentioned in the affidavit filed by the Police Inspector
Shri Santosh Bagwe that said application was opposed by the
learned APP stating that the present applicant no.1 /original
accused is purposely delaying the proceedings. However,
thereafter it so happened that the learned Amicus Curiae was
then requested by the accused to be his private advocate and as
such she continued to defend as an advocate for and on behalf
appln-468-2015.doc
of the present applicant no.1. At present, this Court does not
deem it necessary to opine on the propriety of appointing
Amicus Curiae before Trial Court, in a pending Sessions Trial.
7) It is a factual position that the charge was framed in
October, 2011 and thereafter till date about 34 witnesses have
been examined. Under this factual position, the learned
Counsel for the applicant stated that the Trial Court, which is
seized of the sessions case, is not allowing the cross-
examination of witnesses in a particular manner.
8) The learned Counsel drew attention of this Court
towards the order passed by this Court dated 3rd December,
2014 in earlier Criminal Revision Application No. 405/2014
(Coram M.L. Tahaliyani,J). By the said order, the directions
were given to the trial Court to recall PW nos. 2, 4, 6 and 25
and the cross-examination of these witnesses on behalf of the
accused was allowed. Said Criminal Revision Application was
accordingly disposed of.
9) Now, in fact, the present application as per the title
show that it is preferred by the two applicants. Applicant no.1
is the original accused who is facing the trial in Sessions Case
No. 290 of 2011 and in fact applicant no.2 is the learned
Counsel Ms Apeksha Vora who is representing the said accused
in the Sessions Court and also who has argued the present
appln-468-2015.doc
application for transfer. When this absolutely abnormal
procedure is brought to the notice of the learned Counsel as to
what had prompted her to be applicant no.2 for transfer of the
sessions case, she stated that even she is also aggrieved person
for not allowing to conduct the cross-examination of the
witnesses in the manner she was taking the cross-examination
and even the trial court was objecting her each and every such
question in the cross-examination. Though it is the answer
given by the learned Counsel, apparently there is no cause for
the Counsel to be a party herself in such application for
transfer. Needless to mention that the learned Counsel was
always to bear in mind the boundary line between the rights of
her clients and the personal rights of the Counsel. In fact, the
role adopted by the Counsel as an applicant no.2 in the present
application is in fact unforeseen. However, still the present
application is being taken as application under section 407 of
Cr.P.C. and preferred by the accused facing the trial in Sessions
Case No. 290 of 2011. Without further commenting on this
strange circumstance as to the defence Counsel who herself is
posing as applicant no.2, suffice it to say that there is no
ground made out in the application for transfer of the criminal
case. Needless to mention that the learned Sessions Court can
deal with the matter appropriately in accordance with law by
taking note of the order of this Court while allowing recall of
appln-468-2015.doc
the witnesses Nos. 2, 4, 6 and 25 for their further cross-
examination.
10) Needless to mention that if at all any question in the
cross-examination is not required to be put and objected by the
trial Court definitely within the procedure prescribed under the
law, the trial Court has such power to curtail the cross-
examination with appropriate order. However, exercise of such
power by the trial Court during the continuance of a Sessions
Case, cannot be a sole ground for transfer of the pending
sessions case to another Court and mainly when 34 witnesses
are already examined in a matter having serious allegations
against applicant no.1.
11) During the arguments, learned counsel placed much
reliance on the authority reported in 2015 (3) Crimes 161
(All.) Amit Vs. State of Uttar Pradesh and ors. In fact, on the
facts of the present matter at hand, i.e. the transfer application,
it can be said that the ratio of the cited authority cannot be
taken shelter of. In the said authority before the Allahabad
High Court, the Sessions Case for offence under sections 302,
307 and other offences was to be transferred to another Court
and the application was made before the Sessions Judge on the
ground of personal bias of the Presiding Officer. The Sessions
Judge dismissed the said application even without calling the
appln-468-2015.doc
comments of the Presiding Officer taking a view that the
allegations were patently absurd and were improbable and
deserves to be rejected. Under those facts, it was held by the
Allahabad High Court that the transfer application ought to
have been decided after inviting the comments of the Presiding
Officer.
12) In the considered view of this Court, each and every
matter of transfer is required to be dealt with on the backdrop
of its own facts and in that event this Court is dealing with the
present matter in the light of the factual position detailed
earlier.
13) In the result, there is nothing to entertain the present
application. Same is accordingly dismissed with a direction to
the learned Sessions Court to deal with the pending session
case expeditiously in accordance with law.
14) The oral request on behalf of applicant no.1/accused for
continuation of the stay to the proceeding before the trial Court
on the ground that the applicants wants to challenge the
present order before the Hon'ble Apex Court, is rejected.
15) Office to communicate this order to the concerned
Sessions Court immediately.
(A.R. JOSHI, J.)
