Bombay High Court
Avinash S/O Venkatrao Shinde vs The Superintendent Of Police And Others on 23 January, 2024
2024:BHC-AUG:1964
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
981 CRIMINAL WRIT PETITION NO. 1771 OF 2023
Dilipsinh Gopalsinh Thakur And Others
VERSUS
The State of Maharashtra
...
Advocates for the petitioners : Ms. Rashmi Gour with Mr. A.S. Bayas,
S.R. Mantri and Mr. S.S. Gangakhedkar
APP for Respondent: Mrs. Pratibha J. Bharad
.....
WITH
CRIMINAL APPLICATION NO. 294 OF 2024
IN
CRIMINAL WRIT PETITION NO. 1771 OF 2023
Avinash Venkartrao Shinde
versus
The Superintendent of Police and others
.....
Advocate for the applicant: Mr. S.S. Gangakhedkar
A.P.P. for respondent No.1 : Mrs. Pratibha J. Bharad
Advocate for respondents: Mr. A.S. Bayas
CORAM : SANJAY A. DESHMUKH, J.
DATED : 23rd JANUARY, 2024.
PER COURT :-
1. The criminal writ petition No. 1771 of 2023 is directed
against the impugned order dated 30.9.2023 passed in Misc. criminal
application No. 30 of 2023 which was filed under Section 408 of the
Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") for
transferring the Sessions Case No. 93 of 2016 pending before the
Additional Sessions Judge-1 Nanded to another court. A criminal
application No. 294 of 2024 is filed seeking same relief in writ petition
No. 1771 of 2023 to add the applicant as respondent in criminal writ
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petition and that he be permitted to participate in this writ petition. He
also prayed that the Special (Atrocity) Case No. 7 of 2018 be
transferred from Additional Sessions Judge-1, Nanded to any other
Court.
2. Learned advocates for the petitioners in writ petition No.
1771 of 2023 pointed out the conduct of the Presiding Officer of the
Sessions Case No. 93 of 2016 that he is not proceeding with the trial
as per the provisions of law. It is pointed out that the Presiding
Officer is conducting the trial with biased mind and it is not fairly
acting with the petitioners. The example quoted is that prosecution
panch witness P.W.2 turned hostile. Some questions were put to the
witness by the court. However, in the last para of his deposition, the
trial court directed to that witness (PW-2) to submit bond to secure
his presence assuming that he had given false evidence and
ultimately bond of Rs.5000/- was executed. Learned advocate
further submitted that in earlier Sessions Case No. 358 of 2019,
decided on 11.4.2023, the applicant was convicted, however, copy of
that judgment was not given on the day of the judgment and
therefore, by filing a writ petition, directions were sought against the
same Court. Even after direction of the High Court also, the copy of
the judgment was not made available to these petitioners-accused.
Therefore, explanation was called from that Court. Thereafter, the
copies were supplied. Learned advocate for the petitioners lastly
pointed out the complaint about the behaviour of the same Presiding
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Officer, made by 222 advocates of the Nanded Bar Association
praying for taking action against him. It is lastly prayed that the
petitioners will not get justice from that Presiding Officer, therefore,
said case deserves to be transferred.
3. Learned advocate in criminal application No. 294 of 2024
submitted that special Atrocities case No. 7 of 2018 is pending before
the same Presiding Officer. An application was moved by the
applicant for transfer of the case from the same Presiding Officer to
the Principal District and Sessions Judge, Nanded. The said
Presiding Officer when he was in charge Principal District and
Sessions Judge, Nanded, submitted report to facilitate the rejection of
the said transfer application by compelling the Superintendent of
District Court, Nanded to submit the report dated 20.10.2023 and
therefore, that application is not yet decided. Learned advocate
further submitted that the prayer for recalling some of the witnesses
was made. However, that was turned down by the same Presiding
Officer. With similar grievance a criminal writ petition No. 477 of
2022 was filed and it was allowed by giving directions to the
Presiding Officer to recall the witnesses. He pointed out that the said
Presiding Officer when he was acting as Principal District and
Sessions Judge, Nanded, called the say from the Superintendent of
the District Court and the same was submitted for decision of transfer
of the case. The application is not yet decided, which was filed on
21.8.2023. Learned advocate for the petitioners has pointed out that
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the application submitted by the applicant accused making grievance
about the same Presiding Officer for transfer of the case to another
Court is not decided for months together. He submitted that the
applicant will not get justice as the Presiding Officer is prejudiced and
acting with bias.
4. Learned advocate for the applicant has pointed out that
some documents like report, test identification parade were directly
exhibited without giving an opportunity to the defence. He pointed out
the said order. All these conducts of the Presiding Officer lead to
inference that the Presiding Officer is not fair with the accused while
conducting trials in aforesaid both the cases. He therefore prayed
that it is necessary to transfer the said case to another Court.
5. Mr. Gangakhedkar, learned advocate for the applicant
placed reliance on the following authorities:-
i) C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee
and others, reported in (1995) 5 SCC 457, in which in para
23 the Hon'ble Supreme court held as under:-
"23. To keep the stream of justice clean and pure, the
Judge must be endowed with sterling character, impeccable
integrity and upright behaviour. Erosion thereof would undermine
the efficacy of the rule of law and the working of the Constitution
itself. The Judges of higher echelons, therefore, should not be
mere men of clay with all the frailties and foibles, human failings
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and weak character which may be found in those in other walks
of life. They should be men of fighting faith with tough fibre not
susceptible to any pressure, economic, political or any sort. The
actual as well as the apparent independence of judiciary would
be transparent only when the office holders endow those
qualities which would operate as impregnable fortress against
surreptitious attempts to undermine the independence of the
judiciary. In short, the behaviour of the Judge is the bastion for
the people to reap the fruits of the democracy, liberty and justice
and the antithesis rocks the bottom of the rule of law."
ii) P.D. Dinakaran (I) vs. Judges Inquiry Committee and
others, reported in (2011) 8 SCC 380, in which in para 41,
it is held that:-
"41. In this case, we are concerned with the application of first of
the two principles of natural justice recognized by the traditional
English Law, i.e., Nemo debet esse judex in propria causa. This
principle consists of the rule against bias or interest and is based
on three maxims: (i) No man shall be a judge in his own cause;
(ii) Justice should not only be done, but manifestly and
undoubtedly be seen to be done; and (iii) Judges, like Caesar's
wife should be above suspicion. The first requirement of natural
justice is that the Judge should be impartial and neutral and must
be free from bias. He is supposed to be indifferent to the parties
to the controversy. He cannot act as Judge of a cause in which
he himself has some interest either pecuniary or otherwise as it
affords the strongest proof against neutrality. He must be in a
position to act judicially and to decide the matter objectively. A
Judge must be of sterner stuff. His mental equipoise must
always remain firm and undetected. He should not allow his
personal prejudice to go into the decision-making. The object is
not merely that the scales be held even; it is also that they may
not appear to be inclined. If the Judge is subject to bias in favour
of or against either party to the dispute or is in a position that a
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bias can be assumed, he is disqualified to act as a Judge, and
the proceedings will be vitiated. This rule applies to the judicial
and administrative authorities required to act judicially or quasi-
judicially."
iii) Subrata Roy Sahara vs. Union of India and others,
reported in (2014) 8 SCC 470, in which the Hon'ble
Supreme Court in para 15, held as under:-
"15. By the time a Judge is called upon to serve on the
Bench of the Supreme Court of India, he understands his
responsibilities and duties.....and also his powers and authority.
A Judge has the solemn duty of deciding conflicting issues
between rival parties. Rival parties inevitably claim diagonally
opposite rights. The decision has however to be rendered in
favour of one party (and against the other). That, however, is not
a cause for much worry, because a Judge is to decide every
dispute, in consonance with law. If one is not free to decide in
consonance with his will, but must decide in consonance with
law, the concept of a Judge being an individual possessing
power and authority, is but a delusion. The saving grace is, that
only a few understand this reality. But what a Judge is taught
during his arduous and onerous journey to the Supreme Court is,
that his calling is based on, the faith and confidence reposed in
him to serve his country, its institutions and citizens. Each one of
the above (the country, its institutions and citizens), needs to be
preserved. Each of them grows to prosper, with the others'
support. Each of them has duties, obligations and
responsibilities.....and also rights, benefits and advantages.
Their harmonious glory, emerges from, what is commonly
understood as, "the rule of law." The judiciary as an institution,
has extremely sacrosanct duties, obligations and responsibilities.
We shall, in the succeeding paragraphs, attempt to express
these, in a formal perspective."
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6. Learned advocate for the petitioners in criminal writ petition
No. 1771 of 2023 placed reliance on the judgment of the Supreme
Court in the case of Zahira Habibullah Sheikh (5) and Another vs.
State of Gujarat and others, reported in (2006) SCC 374, and
more particularly para 36 thereof, which is reproduced as under:-
"36. The principles of rule of law and due process are
closely linked with human rights protection. Such rights can be
protected effectively when a citizen has recourse to the Courts
of law. It has to be unmistakably understood that a trial which is
primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it may
have to be determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz. whether
something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage
of justice has resulted. It will not be correct to say that it is only
the accused who must be fairly dealt with. That would be turning
a Nelson's eye to the needs of the society at large and the
victims or their family members and relatives. Each one has an
inbuilt right to be dealt with fairly in a criminal trial. Denial of a
fair trial is as much injustice to the accused as is to the victim
and the society. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial
calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being
tried is eliminated. If the witnesses get threatened or are forced
to give false evidence that also would not result in a fair trial.
The failure to hear material witnesses is certainly denial of fair
trial."
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7. Heard learned A.P.P. for the respondent-State.
8. The remarks were called from the Principal District and
Sessions Judge, Nanded. The Principal District and Sessions Judge,
Nanded communicated that the said Presiding Officer is having
workload and the tension. However, he is sincere and therefore,
there is no substance in the grievances raised against him and these
are baseless. Though 222 members of the Bar had raised grievance
against the same Presiding Officer that he is not behaving properly
about which the Principal District and Sessions Judge has not made
any remark.
9. The grievances of the Bar Association, Nanded cannot be
the ground for allowing this writ petition and the application for
transfer of the case.
10. It appears from the record itself that panch witness (PW-2)
who turned hostile was threatened by the Presiding Officer about his
deposition. He was compelled to execute bond about future action of
giving false evidence. This view of the Presiding Officer shows bias to
the petitioners accused. As per Section 344 of the Cr.P.C. the trial
court has to come to the conclusion at the time of giving judgment
that the witness has deposed falsely or fabricated evidence. Then
only further action can be taken against such witness. There is no
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provision in law to punish the witness who turned hostile unless and
until it is concluded in the judgment that the witness has deposed
falsely or fabricated the false evidence/ documents. This witness
cannot be compelled to execute bond. Such view of the trial court is
bias and premature. This conduct of the Presiding Officer shows that
he is prejudiced and he is unfair with the accused/petitioners. It is
sufficient ground for transferring the case from that court to another
court.
11. While exhibiting some documents, the Presiding Officer has
not given any reasons. He cannot pass such order mechanically.
Thus, he failed to consider that the reasons are soul of the judgment
and such course of action is unfair resulting into illegality, by which
prejudice is caused to the petitioners-accused.
12. In the case of Subrata Roy Sahara vs. Union of India
and others (supra), the Hon'ble Supreme Court has held that the
Judge has a solemn duty of deciding conflicting issues between the
rival parties. He must act fairly and impartially. The conduct of this
Presiding Officer is contrary to the directions and guidelines of the
Hon'ble Supreme Court's precedents cited supra.
13. Considering all the above, it appears that the Presiding
Officer is not acting impartially and he is not free from bias against
these accused-petitioners and applicant. Their trials are not fairly
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conducted. They will get justice from the said Presiding Officer.
Considering all these aspects, serious prejudice is certainly caused to
the petitioners and the applicant and their right to fair trial is certainly
affected as contemplated under Articles 19 and 21 of the Constitution
of India. Therefore, the writ petition as well as the civil application
deserve to be allowed in the interest of justice. The same are allowed
with the following directions:-
I. The Principal District and Sessions Judge, Nanded is directed
to transfer both the cases i.e. Sessions Case No. 93 of 2016
and Special (Atrocity) case No. 7 of 2018 from the Court of
Additional Sessions Judge No.1 Shri S.E. Banger to the
Additional Sessions Judge No.2 Shri C.V. Marathe. He shall try
and conclude the case as expeditiously as possible.
II. The learned Principal District and Sessions Judge, Nanded is
directed to report accordingly to the Registrar (Judicial) of this
Court.
III The Registrar (Judicial) of this Court to communicate this order
to the concerned and report the compliance of this order.
(SANJAY A. DESHMUKH, J.)
rlj/
