Bombay High Court
Sandeep Sunil Kumar Lahoriya vs The State Of Maharashtra on 1 March, 2021
Bench: S.S. Shinde, Manish Pitale
1/22 Judgment WP-539-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.539 OF 2020
WITH
INTERIM APPLICATION NO.315 OF 2021
Sandeep Sunil Kumar Lahoriya ]
Aged 27 years, Occ : Business ]
having office at Plot No.16, Sector 28, ]
Vashi, Navi Mumbai - 400 703 ] .. Petitioner
]
VERSUS
1. State of Maharashtra ]
(Through the Crime Branch, Unit-1, ]
Mumbai) ]
]
2. Venkatesh Shettiyar ]
R/o Room No.103, Vikas Apartment, ]
Sainath Nagar, Virar (West), Thane, Pin- ]
401303 ]
(Presently lodged at Taloja Jail) ]
]
3. Emanuel Amolik ]
R/o 8/12, Meera Society, ]
Shankar Sheth Road, Swargate, ]
Pune ]
(Presently lodged at Taloja Jail) ]
]
4. Wajid @ Zahir Nabi Qureshi ]
R/o Room No.210, Hillpark Building, ]
Deori Pada, Kausa, Mumbra, Thane ]
(Presently lodged at Taloja Jail) ]
]
5. Sumeet Bacchewar ]
R/o Plot No.155, Santushti Bungalow, ]
Behind Tilak College, Sec.28, Vashi, ]
M.M.Salgaonkar
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Navi Mumbai - 400703 ]
(Presently on bail) ]
]
6. Altaf Khan ]
R/o Room No.204, Aman Apartment, ]
Sonaji Nagar, Kausa Mumbra, Dist. ]
Thane ]
(Presently on bail) ]
]
7. Mohd. Anis Nasir Ansari @ Bhaijan ]
R/o Housing Board, Shastrinagar, ]
Near TMS High School, Beri Chawl, ]
Ambernath (West), Thane ]
(Presently on bail) ]
]
8. Francis Chauri ]
R/o Flat No.1852, C-Block, 926, Kurla ]
Camp Road, Ravindra Nagar, ]
Ulhasnagar, Thane ]
(Presently lodged at Thane Central Jail) ]
]
9. Kailash Ghumane ]
R/o Room No.824, Dinesh Chawl, ]
Shastrinagar Housing Board Slum, ]
Near Indian School, Ambernath (West), ]
Dist. Thane ]
(Presently lodged at Taloja Jail) ]
]
10. Bhupesh Gupta ]
R/o Room No.602, Building No.25, NRI ]
Complex, Seawoods, Nerul, Navi ]
Mumbai - 400 603 ]
(Presently on bail) ]
]
11. Suresh @ Jawahar Chellaram Bijlani ]
R/o B-Bungalow, M.G.Complex, Sector ]
14, Vashi, Navi Mumbai- 400 703 ]
(Presently on bail) ]
]
M.M.Salgaonkar
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12. Arif Gulam Dastagir Sheikh ]
R/o Flat No.104, 1st Floor, B-Wing, ]
Hamja Apartment, Kausa, Mumbra, ]
Thane ]
(Presently lodged at Thane Central Jail) ]
]
13. Anurag Garg ]
R/o Flat No.1202, Building No.20, ]
NRI Complex, Plot No.56, 57, 58 ]
Seawoods, Nerul, Navi Mumbai - 400 ]
603 ]
(Presently on bail) ]
]
14. Mahesh Bijlani ]
R/o Flat No.803, B-Wing, Kshitij Tower, ]
Sector 19, Sanpada, ]
Navi Mumbai 400 705 ]
(Presently lodged at Thane Central Jail) ]
]
15. Anil Peter D'Souza ]
R/o Room No.A/117, 88, CIDCO colony, ]
Near Datta Meghe College, ]
Sector 19, Airoli, Navi Mumbai ]
(Presently on bail) ] .. Respondents
Mr.Himanshu V. Kode with Ms.Janhavi S. Karnik i/b Mr.Amey
Lambhate for the Petitioner.
Smt.Aruna Pai, Special Public Prosecutor for Respondent No.1/State.
Mr.Girish Agarwal for Respondent No.8.
Mr.Ashwin Thool for Respondent No.11.
Mr.D.V.Sawant with Mr.Priyank P. Kulkarni, Mr.Abhishek Sawant i/b
Ms.Sudha Dwivedi for Respondent No.12 in the Writ Petition and for
the Applicant in IA/315 of 2021.
Mr.Rajiv Chavan-Senior Advocate i/b Mr.Akshay Mehta, Ms.Priyanka
Chavan for Respondent No.14.
M.M.Salgaonkar
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CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 10th FEBRUARY, 2021
PRONOUNCED ON : 01st MARCH, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
2. By this petition, the petitioner is seeking a direction from this
Court for transferring Sessions Cases pending before the court of
Judge R.R.Vaishnav, District Judge-1, Sessions Court, Thane to any
other Court. The petitioner is the son of Sunil Kumar Lahoriya, who
was murdered in front of his office on 16 th February, 2013. A First
Information Report ("FIR") bearing No.67 of 2013 was registered,
pursuant to which investigation was undertaken and chargesheet
was filed against the accused persons. The accused were arrested
after their anticipatory bail applications were rejected and it is an
admitted position that the accused persons have continued in
custody till date, except a few, who were granted bail recently.
3. On 30th October, 2017, charges were framed before the
Sessions Court. During the pendency of the proceedings before the
Sessions Court, various applications were filed on behalf of the
accused persons and the writ petitions arising out of the orders
passed in such applications came up before this Court. The orders
passed by this Court were challenged before the Hon'ble Supreme
Court and there were certain orders passed by the Hon'ble Supreme
Court also. It is relevant that on 18 th December, 2018, in one such
proceeding before this Court, an order was passed by the Division
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Bench of this Court directing the proceedings before the trial court
to be expedited and to be taken up on day-to-day basis.
4. Thereafter, a writ petition came to be filed before this Court
arising out of certain orders passed by the Sessions Court wherein
prayers were also made for grant of bail to the accused persons,
considering the slow pace at which, the trial was being conducted.
Although this Court was not inclined to grant any relief in the said
writ petition, considering the fact that this Court had by its earlier
order directed day-to-day proceedings before the Sessions Court and
it was found that the presiding Judge was overburdened with other
work also, by exercising extraordinary jurisdiction under Article 226
of the Constitution of India, the Division Bench of this Court by its
order dated 9th August, 2019, directed as follows :
"15. In the above facts and circumstance, though we are
not inclined to grant any relief claimed in the petition,
however, in exercise of extraordinary jurisdiction conferred
upon this Court under Article 226 of the Constitution of India,
we are inclined to transfer the Sessions Case No.281 of 2013
from Shri V.Y.Jadhav, District Judge-4 & Additional Sessions
Judge, Thane to Shri R.R.Vaishnav, District Judge-2 &
Additional Sessions Judge, Thane."
5. Accordingly, the trial stood transferred to the court of Judge
R.R.Vaishnav at Thane. One of the accused filed Special Leave
Petition challenging the said order but, on 17 th December, 2019, the
counsel appearing for the said accused made a statement before the
Hon'ble Supreme Court in the Special Leave Petition that he did not
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wish to pursue the petition, but an application for grant of regular
bail would be filed before the Sessions Court. On this basis, the
Hon'ble Supreme Court directed that if such an application is filed,
the Sessions Court shall ensure that the application will be disposed
of within a period of four weeks. It is also an admitted position that
the petitioner herein i.e. the son of the deceased also challenged the
aforesaid order dated 9th August, 2019 passed by the Division Bench
of this Court whereby the trial was transferred to the court of Judge
R. R.Vaishnav at Thane. The said Special Leave Petition was also
dismissed. In other words, the aforesaid order dated 9 th August,
2019, passed by the Division Bench of this Court, transferring the
trial to the specifically named Judge, stood confirmed by dismissal of
the aforesaid Special Leave Petitions filed before the Hon'ble
Supreme Court.
6. It has come on record that although the list of witnesses to be
examined is a larger number, but the material witnesses to be
examined by the prosecution are about 71. In pursuance of transfer
of the proceedings to the aforesaid Judge, the trial was undertaken
and 52 witnesses stood examined. It is at this stage that the
petitioner moved an application before the Principal District and
Sessions Judge at Thane under Section 408 of the Criminal
Procedure Code, 1973 (for short, "the Cr.P.C.") seeking transfer of
the said sessions trial pending before the Court of aforesaid named
Judge R.R.Vaishnav to the Court of any other Judge. On 25 th
January, 2020, the Principal District and Sessions Judge, passed an
order recording that the learned counsel appearing for the petitioner
was required to satisfy the said court regarding locus standi to file
such an application. But it was also recorded that since the trial had
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been transferred by this Court to the specifically named Judge,
entertaining any further application for transfer of the trial by the
Principal District and Sessions Judge, Thane, would amount to
judicial indiscipline. The application stood disposed of in that light.
7. It is at this stage that the petitioner filed the instant writ
petition before this Court on 27th January, 2020 for the
aforementioned prayer. The principal grounds raised in the instant
writ petition are that the manner in which Judge R.R.Vaishnav has
been conducting the trial, an apprehension is created in the mind of
the petitioner that the Judge is biased and he is in a hurry to wrap
up the trial, as a result of which, procedural and substantive errors
are being committed while conducting the trial, which is prejudicial
to the prosecution. Specific instances have been stated in the writ
petition to claim that the aforesaid Judge has not been conducting
the trial properly and that this has resulted in frequent skirmishes
between the Special Public Prosecutor (for short, "SPP") and the
Judge, which is detrimental to the trial. It is also claimed that vital
applications like the application filed under Section 173(8) of the
Cr.P.C. by the SPP have been kept pending and instead, evidence is
being hurriedly recorded. The complaints made by the witnesses
about threat and pressure from the accused are being routinely
ignored by the Judge. It is also claimed that vital CCTV footage,
required to be shown to the witnesses, is not being shown despite
availability of facility in the Court. It is further claimed that bail
applications of two accused persons were hurriedly considered and
allowed by the aforesaid Judge. It was submitted that although the
said order granting bail is already subject matter of challenge before
this Court, a perusal of the same would show that glaring factual
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errors have been committed by the Judge, indicating the
predetermined mind of the Judge.
8. This Court issued notice in the writ petition wherein the
accused were directed to be arrayed as parties. On 24 th February,
2020, this Court granted stay of further proceedings in the aforesaid
trial i.e. Sessions Case No.281 of 2013, pending before the said
Judge at Thane. Some of the accused (respondents) entered
appearance through counsel. It appears that the writ petition
remained pending due to the situation created by Covid-19
pandemic. An interim application bearing Stamp No.3196 of 2020
was moved by respondent No.12 (original accused No.11) before
this Court, seeking vacation of stay and in the alternative, a direction
to release the said respondent/applicant on bail on such terms and
conditions that this Court may deem fit. In this backdrop, the
aforesaid interim application alongwith the writ petition, were taken
up for hearing.
9. Mr.Kode, learned counsel appearing for the petitioner,
submitted that the writ petition deserved to be granted and the trial
was required to be transferred from Judge R. R.Vaishnav to any
other Judge in the Court at Thane. It was submitted that the
manner in which the proceedings were conducted before the Court
of said Judge had led to a reasonable apprehension in the mind of
the petitioner that the said Judge is proceeding in a biased manner
and that he is in a hurry to complete the trial, thereby causing grave
injustice to the case of the prosecution. It was specifically
submitted that vital CCTV footage required to be shown to the
prosecution witnesses during recording of evidence, particularly
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P.W.No.33, was not permitted to be shown. This was despite
requests made by the SPP. The applications made in that regard
were being rejected, as a result of which, vital evidence to prove the
prosecution case could not be brought on record. This was not only
during recording the evidence of P.W.No.33, but also of P.W.No.43.
These pieces of CCTV footage were vital to prove that the victim was
alive when he had reached the hospital from the place of incident.
10. It was further submitted that such a request for playing the
CCTV footage was also made when the evidence of Tejas Janjurne,
an eye-witness, was being recorded and a specific request made by
the SPP in that regard by way of an application was not considered.
It was further submitted that even during the deposition of the said
eye-witness, there was an error committed by the Judge, but when
the mistake was pointed out by making a specific application
(Exhibit 1412) by the SPP, the Judge rejected the application,
without assigning any reason. An application at Exhibit 1462,
moved by SPP for taking evidence on record under Section 173(8) of
the Cr.P.C. has been kept pending and it has not been decided. By
keeping the said application pending and allowing the applications
for bail by two accused persons, the aforesaid Judge has exhibited
bias in favour of the accused and against the prosecution. It was
further submitted that due to the said approach of the Judge, there
were heated arguments between the SPP and the Judge and on one
occasion, it went to a stage that the Judge left the Dais and rejected
the applications from his chamber. The said state of affairs were
brought to the notice of the Department of Law and Judiciary by
specific letters addressed by the SPP and that therefore, all this was
a matter of record.
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11. It was further submitted that the complaints made by the
witnesses about the threats from the accused persons were not even
recorded by the aforesaid Judge and no remedial steps were taken in
that regard. On this basis, it was vehemently submitted by the
learned counsel appearing for the petitioner that the present writ
petition deserved to be granted in the interest of justice.
12. Mr.Chavan, learned senior advocate appearing on behalf of
respondent No.14 (original accused No.13), opposed the contentions
raised on behalf of the petitioner. It was submitted that the present
petition has been moved before this Court only with a view to
further delay the proceedings before the court below. The only
interest of the petitioner appeared to be to prolong the matter so
that the accused persons continue to languish in jail. It was
submitted that the Division Bench of this Court had specifically
directed as far back as on 18th December, 2018, that the trial should
be conducted on day-to-day basis. This was reaffirmed by the
directions given by the Hon'ble Supreme Court and yet, the trial was
still pending and it was being dragged at the instance of the
petitioner herein. It was submitted that the allegations made against
Judge R.R.Vaishnav, specifically appointed by this Court to conduct
the trial, were imaginary and fanciful. It was submitted that the
petitioner, who at best could only assist the prosecution, was seeking
to delay the proceeding on one pretext or the other. It was
submitted that the apprehension expressed on behalf of the
petitioner regarding bias of the aforesaid Judge was mischievous,
deliberate and only with a view to delay the proceedings before the
court below. Each of the allegations made on behalf of the
petitioner was refuted by the learned counsel, by referring to copies
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of depositions of witnesses, recorded till date. It was submitted that
the said Judge had been taking the trial as expeditiously as possible,
despite the fact that the SPP had remained absent on a number of
dates.
13. It was submitted that application after application were being
moved on behalf of the prosecution and the petitioner herein, only
with a view to delay the proceedings so as to increase the duration
for which the accused remained behind bars as undertrials. As
regards the CCTV footage, it was submitted that the same was
shown for a long period of time during recording of evidence of
P.W.No.16 and that therefore, the grievance raised on behalf of the
petitioner was without any basis. It was submitted that the
petitioner was not justified in asking this Court to look at the order
passed granting bail to two of the accused persons because the same
was already the subject matter of challenge before this Court in
different proceedings. It was submitted that when the delaying
tactics of the petitioner had not succeeded, he had approached this
Court with imaginary grievances. It was specifically submitted that
the SPP had written letters regarding the manner in which the trial
was being conducted, only after the order was passed granting bail
to two of the accused persons on 14th January, 2020, because there
were certain observations made by the aforesaid Judge with regard
to the conduct of the SPP also.
14. Learned senior advocate relied upon the judgment of the
Hon'ble Supreme Court in the case of Asian Resurfacing of Road
Agency Pvt. Ltd. & Ors. Vs. Central Bureau of Investigation 1 to
1 (2018) 16 SCC 299
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contend that stay of trial proceedings ought not to be routinely
granted and in any case, such order of stay of trial can remain alive
only for six months. Reliance was also placed on the judgment of
the Hon'ble Supreme Court in the case of Usmangani Adambhai
Vahora Vs. State of Gujarat and Ors. 2 to contend that the Court must
see as to whether the apprehension expressed against a Judge is
reasonable or not and that a trial could be transferred from one
court to the other only if it was found that there was a reasonable
apprehension that justice would not be done unless such transfer
was granted. In this regard, reliance was also placed on the
judgment of the Hon'ble Supreme Court in the case of Captain
Amarinder Singh Vs. Prakash Singh Badal & Ors. 3. It was also
vehemently submitted that when this Court had specifically
transferred the trial to Judge R. R.Vaishnav and day-to-day trial was
being conducted and such an order was confirmed by the Hon'ble
Supreme Court also, the present writ petition deserved to be
dismissed.
15. Learned counsel Mr.Sawant appearing for respondent No.12
and for applicant in interim application, learned counsel Mr.Agarwal
appearing for respondent No.8 and learned counsel Mr.Thool
appearing for respondent No.11, made submissions on same lines as
advanced by Mr.Chavan, learned senior advocate appearing for
respondent No.14.
16. Mr.Agarwal, learned counsel appearing for respondent No.8,
specifically relied upon the judgment of the Hon'ble Supreme Court
2 (2016) 3 SCC 370
3 (2009) 6 SCC 260
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in the case of Braj Kishore Thakur Vs. Union of India & Ors. 4 wherein
it was reiterated that even if orders of courts below are modified or
some of them are set aside by the higher courts, it would be
improper to attribute motives to Judges of the courts below,
particularly when such Judges cannot defend themselves and
ultimately it leads to wounding the institution of judiciary. Reliance
was also placed on the judgment of Gujarat High Court in the case of
Imtiazkhan Saeedkhan Pathan & Ors. Vs. State of Gujarat & Ors. 5
wherein it was held that the higher courts ought not to draw adverse
inference of bias against Judges of the courts below, only because
few adverse orders were passed against a party.
17. Mr.Thool, learned counsel appearing for respondent No.11,
relied upon the judgment of the Hon'ble Supreme Court in the case
of Rekha Murarka Vs. State of West Bengal & Anr.6, to contend that it
is the Public Prosecutor, who leads the prosecution and it is the
Public Prosecutor, who makes a strategic call of examining some
witnesses or leaving others out. A victim's counsel can only assists
the Public Prosecutor because if the victim's counsel is given a free
hand, there is every possibility of a vindictive battle between the
victim's counsel and the accused in a sessions trial. On this basis, it
was submitted that the concerns expressed on behalf of the
petitioner in the present case were without any substance and,
therefore, the writ petition deserved to be dismissed.
18. Mrs.Aruna Pai, learned Special Public Prosecutor appearing
for the State in this writ petition, submitted that there were certain
4 AIR 1997 SC 1157
5 2010 Cri.L.J. 4510
6 (2020) 2 SCC 474
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remarks made against the SPP appearing before the court below, by
the learned Judge, but such remarks were not justified. It was
submitted that the SPP before the court below could not remain
present on some dates due to the fact that he had suffered an
accident. It was submitted that the applications filed by the SPP
were being rejected by the court below in a hurry and that the
manner in which, the evidence was being recorded was not
desirable. It was submitted that the aforesaid Judge while
conducting the trial appeared to be in a hurry, thereby causing grave
damage to the prosecution case. It was submitted that the instances
highlighted on behalf of the petitioner justified the prayer for
transfer of the trial to another Judge.
19. We have heard learned counsel appearing for the rival parties.
There can be no doubt about the fact that an order transferring trial
from a Judge to another is not an exercise routinely undertaken.
Section 408 of the Cr.P.C. gives such powers to a Sessions Judge
when it appears to him that it would be expedient for the ends of
justice to be met that such an order of transfer needs to be issued.
Therefore, it becomes necessary that when a prayer for transfer of
trial is made on behalf of any party, the entire set of circumstances
concerning the trial is taken into consideration. In the present case,
it is significant that the trial stood transferred to the court of Judge
R.R.Vaishnav, not by an order of the Sessions Court under Section
408 of the Cr.P.C., but by an order of this Court dated 9 th August,
2019, while specifically exercising its extraordinary jurisdiction
under Article 226 of the Constitution of India.
20. While passing the aforesaid order, this Court took note of the
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fact that the Judge before whom the trial was being conducted was
over burdened and that the trial was progressing at a very slow
pace. It was for this reason and in the light of the earlier order
dated 18th December, 2018 passed by the Division Bench of this
Court, reaffirmed by the Hon'ble Supreme Court, for conducting trial
on day-to-day basis, that this Court transferred the trial specifically
to the court of Judge R. R. Vaishnav. It is also significant that Special
Leave Petitions filed on behalf of one of the accused as also the
petitioner before this Court, were dismissed by the Hon'ble Supreme
Court, thereby confirming the order dated 9th August, 2019 whereby
the trial stood transferred to the court of Judge R.R.Vaishnav. This
have to be borne in mind while considering the prayers made in the
present writ petition.
21. We are of the opinion that acceding to the prayers made on
behalf of the petitioner in this writ petition would amount to
reopening the consideration on the basis of which the order dated 9 th
August, 2019 was passed by the Division Bench of this Court, which
significantly stood confirmed by the Hon'ble Supreme Court also. It
is only if glaring circumstances are demonstrated by the petitioner
that such an exercise can perhaps be undertaken. But, before
embarking on that aspect of the matter, it would be appropriate to
refer to the judgments placed before this Court on the question as to
the circumstances in which order for transferring trial from one
court to the other could be passed.
22. In the judgments in cases of Usmangani Adambhai Vahora
(supra) and Captain Amarinder Singh (supra), the Hon'ble Supreme
Court has categorically laid down that transfer of trial from one
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court to the other at the behest of a party can be ordered only if a
finding is reached that there is a reasonable apprehension that
justice will not be done in the matter, but for such order of transfer.
It has been emphasised that such an apprehension has to be seen
from the state of mind of the person or party who entertains such an
apprehension, but at the same time, the court must come to a
conclusion that such an apprehension is a reasonable apprehension.
The judgment of the Hon'ble Supreme Court in the case of Braj
Kishore Thakur (supra), specifically shows concern as to why higher
courts ought not to routinely reach conclusions against the Judges of
the courts below or attribute improper motives to them, only on the
basis that certain adverse orders have been passed against a party,
which may appear to be erroneous, requiring modification or setting
aside. In this context, the role of the Public Prosecutor has been
highlighted in the judgment of the Hon'ble Supreme Court in the
case of Rekha Murarka (supra) wherein it has been emphasised that
the Public Prosecutor occupies a prime position in the conduct of a
criminal trial as he/she has to act as an independent officer of the
Court. Although the counsel representing the victim or relative of
the victim is entitled to assist the Public Prosecutor, if free hand is
given to such a counsel, there is possibility of the trial being reduced
to a vindictive battle between the victim or his relative on the one
hand and the accused on the other.
23. Thus, it becomes clear that transfer of a criminal trial from the
court of one presiding officer to the other, cannot be a routinely
passed order and the apprehension expressed on behalf of the
parties, seeking transfer have to be reasonable and based on
sufficient material on record. In this context, the role of the Public
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Prosecutor becomes extremely significant. In the present case, there
is reference to certain letters written by the SPP to the Department
of Law and Judiciary for challenging the order of bail granted to
some accused, wherein certain remarks have been made about the
manner in which the trial has been conducted by the aforesaid
Judge. Therefore, it becomes necessary for this Court to consider
the specific allegations made on behalf of the petitioner.
24. The principal grievances raised on behalf of the petitioner are
that vital CCTV footage was not played by the aforesaid Judge
during the proceedings of the trial, despite requests made by the SPP.
It was claimed that CCTV footage pertaining to a hotel where the
accused had allegedly hatched the conspiracy was not permitted to
be played when the evidence of P.W.No.43-Harish Shetty was being
recorded and similarly it was claimed that CCTV footage pertaining
to the hospital was not played at the time when evidence of relevant
witnesses was being recorded.
25. In this regard, we find that admittedly CCTV footage
pertaining to the place of incident was played when evidence of
P.W.No.16 was recorded. There was an objection sought to be raised
on behalf of the learned counsel appearing for the respondents/
accused persons that CCTV footage could be played only when there
was requisite certificate under Section 65-B of the Information of
Technology Act, 2000 (for short, "the IT Act") and not otherwise. It
was also claimed that since the witnesses whose depositions were
being recorded were not the authors of the said document (CCTV
footage), the grievance raised in this regard on behalf of the
petitioner, supported by the SPP, was not justified.
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26. The next grievance raised on behalf of the petitioner pertains
to an alleged mistake in recording of a particular word in the
evidence of P.W.No.52-Tejas Janjurne and that the application moved
by the SPP at Exhibit 1412, seeking correction of the said mistake
was deliberately rejected by the aforesaid Judge. Further grievance
of the petitioner pertains to failure of the said Judge in passing an
order on application at Exh.1462, preferred by the SPP for
producing evidence under Section 173(8) of the Cr.P.C. Then, a
reference is made to the heated exchanges between the SPP and the
aforesaid Judge when a prayer for re-examination of a particular
witness was denied by the said Judge.
27. On the other hand, much emphasis has been placed by the
learned counsel appearing for the respondents on the fact that the
SPP had been absent on many occasions, leading to delay in
proceedings before the court below. An attempt was made on behalf
of the petitioner and also on behalf of the State to claim that the
manner in which the bail applications of two accused persons were
allowed, demonstrated the biased approach of the aforesaid Judge
and that he was allegedly not aware about the basic facts.
28. Insofar as the merits of the order allowing the bail
applications of two accused persons are concerned, we are of the
opinion that since the same is subject matter of challenge in this
Court in an appropriate proceedings, we refrain from going into the
merits of the said order. Yet, it appears that the SPP was not happy
with certain observations and remarks made by the said Judge in the
aforesaid order, allowing the bail applications. It is pertinent that
the order granting bail to two of the accused persons was passed on
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14th January, 2020, while the SPP addressed a letter to the
Department of Law and Judiciary on 16 th January, 2020, making
request to challenge the said order. In the said letter, certain
statements have been made, indicating that the SPP was not happy
with the approach of the learned Judge.
29. Be that as it may, we are of the opinion that the role of the
court presided over by the learned Judge and that of the Public
Prosecutor is to ensure that the accused are brought to book and
that proceedings are conducted in a fair manner so as to ensure that
justice is done, both to the accused as well as to the victim. The
endeavour of the proceedings is to ascertain as to who is guilty of
the alleged crime and it can neither be an approach giving an
impression that there is a bias, either in favour of the accused or the
victim. Neither can a Court be perceived to be accused centric nor
can it be perceived to be victim centric in its approach. Therefore,
this Court expects the SPP representing the prosecution in the court
below as well as the learned Judge conducting the trial to ensure
that the trial is conducted in a manner, which is fair and proper. The
role of the counsel representing the accused is also crucial because
they are expected to perform their duties as officers of the Court.
30. In this backdrop, the question that arises for consideration is,
as to whether the material brought on record by the petitioner and
the grievances raised on his behalf would justify an order directing
transfer of the trial from the Judge presently conducting the same to
another Judge. As noted above, such an order cannot be passed in a
routine manner and substantial grounds, based on sufficient
material, need to exist for passing such an order transferring the
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trial. On an over all appreciation of the material on record, we are of
the opinion that a case for passing such an order is not made out, on
the basis of the material on record. It cannot be said that the
petitioner has placed sufficient material before this Court to revisit
its own earlier order dated 9th August, 2019 whereby the trial was
transferred specifically to Judge R. R.Vaishnav. It is significant that
the said order stood confirmed by the Hon'ble Supreme Court, as
Special Leave Petitions filed by one of the accused as well as the
petitioner were dismissed.
31. Nonetheless, the grievances raised on behalf of the petitioner
need to be addressed by giving appropriate directions. We are of the
opinion that the proceedings before the trial court need to be
conducted expeditiously and, without disturbing the flow of the
proceedings, appropriate direction can be given so that the
grievances of the petitioner are addressed.
32. Therefore, it is directed that the court below shall address the
grievances of the petitioner by entertaining applications in that
regard towards the end of the trial and, if such applications are
moved, the same may be considered liberally. This would include
playing of CCTV footage of various places concerning the chain of
events pertaining to the subject matter of the trial. Wherever, such
CCTV footage has been proved in accordance with law, inter alia, on
the basis of certificate issued under Section 65-B of the IT Act, such
CCTV footage may be permitted to be played towards the end of the
trial and if necessary, relevant witnesses may be permitted to be re-
called.
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33. We expect the court below to conduct the trial with utmost
expedition and on day-to-day basis, as already directed by this Court
as far back as on 18th December, 2018. Due to the interim order
passed in the present writ petition and intervening loss of work due
to Covid-19 pandemic, the trial had been further delayed. Therefore,
the court below presided over by Judge R.R.Vaishnav is expected to
take up the proceedings expeditiously, preferably with effect from 4 th
March, 2021. It has to be kept in mind that barring a few accused
persons, all other accused have been in jail for about seven years by
now and this factor needs to be taken into account while ensuring
that trial is completed at the earliest. The Principal District and
Sessions Judge to ensure that workload in the court of Judge, R.R.
Vaishnav is reduced, so that day-to-day trial of the present case is
facilitated.
34. With the aforesaid observations, the writ petition is disposed
of by rejecting the prayer made on behalf of the petitioner for
transfer of Sessions Cases bearing Nos.281 of 2013, 379 of 2013,
481 of 2013, 118 of 2014, 452 of 2014 and 24 of 2015 pending on
the file of the court presided over by the Judicial Officer R.
R.Vaishnav to the court presided over by any other Judicial Officer.
However, we expect the court below presided over by the Judicial
Officer R.R.Vaishnav to scrupulously observe the directions given
here-in-above so as to ensure that the trial is completed at the
earliest and in a fair and proper manner.
35. In view of the disposal of the writ petition, the interim
application No.315 of 2021 stands disposed of. Copy of this order
be sent to the Principal District and Sessions Judge, Thane, forthwith
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and preferably during the course of the day.
36. Upon pronouncement of the judgment, Mr.Kode, learned
counsel appearing for the petitioner, prays for continuation of
interim stay granted by this Court on 24 th February, 2020 for a
period of two weeks. Learned counsel appearing for the respondents
have vehemently opposed the prayer for continuation of interim stay.
37. Since we have directed in our order that the trial shall be
conducted on a day-to-day basis expeditiously, we are not inclined to
grant the aforesaid prayer. Hence, the said prayer stands rejected.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
