Bombay High Court
Kailash Amarprem @ Amarsingh Rathod vs Premsingh Devsingh Rathod And 5 Others on 25 November, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:12906
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 365 OF 2024
PETITIONER : Kailash Amarprem @ Amarsingh Rathod,
Aged 46 years, Occu. Lawyer,
R/o Dwarka Nagari, Shrirampur,
Pusad, Tq. Pusad, Dist. Yavatmal.
VERSUS
RESPONDENTS : 1] Premsingh Devsingh Rathod,
Aged 57 years, Occu. Service,
2] Ankush S/o Premsingh Rathod,
Age 22 years, Occu. Education
3] Ashutosh S/o Premsingh Rathod,
Age 24 years, Occu. Education,
4] Sau. Mirabai Premsingh Rathod,
Aged 50 years, Occu. Housewife,
5] Ku. Bhagyashri Premsingh Rathod,
Aged 26 years, Occu. Education.
All R/o Dwarka Nagari, Shrirampur,
Pusad, Tq. Pusad, Dist. Yavatmal
now at Digras, Tal. Digras, Dist. Yavatmal
6] State of Maharashtra,
through Police Station Officer,
Police Station, Vasant Nagar,
Pusad, Dist. Yavatmal.
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Mr. R. R. Vyas, Advocate for the petitioner.
Mr. Amol Mardikar, Advocate for respondent nos.1 to 5
Mr. Ganesh Umale, A.P.P. for respondent no.6/State
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CORAM : G. A. SANAP, J.
DATED : NOVEMBER 25, 2024.
ORAL JUDGMENT
1. RULE. Rule made returnable forthwith. Heard finally by
the consent of the learned advocates for the parties.
2. In this writ petition, the petitioner, who is the informant in
Crime No. 234/2020, registered at Vasant Nagar police station, Pusad,
has challenged two orders passed by the learned Principal District and
Sessions, Judge, Yavatmal, namely the order dated 27.03.2024 with
regard to transfer of Sessions Trial No. 15/2022 and another order
dated 27.03.2024 for transfer of Criminal Revision Application No.
10/2022, pending on the file of learned Additional Sessions Judge,
Pusad to the Court of Additional Sessions Judge, Darwha.
3. Respondent nos.1 to 5 are the accused in Sessions Trial No.
15/2022. The petitioner is the practicing advocate at Pusad. The
application bearing Other Misc. Criminal Application No. 28/2023 for
transfer of the Sessions Trial was made on the premise that the
petitioner being the practicing advocate at Pusad bar, the members of
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the Pusad Advocates' Bar Association have shown reluctance to appear
on behalf of the accused. The accused were, therefore, required to avail
the services of the Advocates from Yavatmal at the time of their bail
application.
4. The Cri. Revision Application No.10/2022, has been filed
against the order of rejection of the application made by the petitioner
for further investigation in the said crime i.e. Crime No. 234/2020. It
is submitted that since the accused are not getting proper legal
assistance from the lawyers at Pusad, they are required to avail the
services of the advocates from Darwha. According to the accused, on
account of reluctance shown by the advocates at Pusad bar to appear on
their behalf, they have been denied a fair trial at Pusad. Therefore, the
accused filed an application bearing Other Misc. Criminal Application
No. 35/2023 before the Principal District and Sessions Judge, Yavatmal
for transfer of Cri. Revision Application No. 10/2022 from the Court of
Additional Sessions Judge, Pusad to the Court of Additional Sessions
Judge, Darwha.
5. The transfer applications were opposed by the petitioner
contending that there is no substance in the contention. The accused
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have engaged an advocate to represent them. It is also contended that
there is no other allegation of bias or interference in disposal of the case
at the behest of the petitioner.
6. I have perused the orders passed by the learned Principal
District and Session Judge, Yavatmal. I have also gone through the
applications made by the accused. The applications have been made
principally on the ground that the petitioner is a practicing advocate.
He has good relations with the Advocates practicing at Pusad. The
members of Pusad Bar are not ready to represent the accused. It is
further contended that at the stage of bail application, they had engaged
a lawyer from Yavatmal. Perusal of the applications does not show that
they have made a grievance that the petitioner has been interfering in
the administration of justice or trying to influence the outcome of the
case. The only ground raised is that the advocates at Pusad are not
willing to represent the accused and therefore, on that count they would
not get a fair trial. In this context, it would be necessary to peruse the
observations made by the learned Judge. Learned Judge has recorded
in the impugned order that the applicant, who is one of the accused, is
apprehending interference in a fair trial inasmuch as the petitioner/
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informant is a practicing lawyer. Learned Judge has further observed
that the informant being a practicing advocate at Pusad Court, the
apprehension put forth seeking transfer would be fully justified.
7. Before I proceed to appreciate the submissions advanced
on behalf of the parties, it is necessary to mention at the cost of
repetition that there is no allegation of bias against the learned
Additional Sessions Judge, Pusad. Similarly, there is no allegation that
the petitioner being a practicing advocate at Pusad is interfering, in any
manner, in the administration of justice. The application is
conspicuously silent about the allegation of interference in the
administration of justice and as such the outcome of the proceeding by
the petitioner.
8. It is to be noted that the power of transfer under Sections
406 or 408 of the Code of Criminal Procedure needs to be invoked
sparingly. Before exercising the power, the Court must be satisfied that
the justice is in peril. The Court must be fully satisfied that impartial
trial is not possible. It is also equally important to verify that the
apprehension of not getting a level-playing field, is based on some
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credible material and not just on conjunctures and surmises. The
learned Judge, in view of this position was required to appreciate the
facts stated in the applications and come to a just conclusion.
9. The application made by the petitioner for further
investigation was rejected by the Court. He filed a revision against the
said order. The revision is pending before the learned Additional
Sessions Judge, Pusad. It is not the allegation of the accused that the
petitioner being an Advocate is interfering in the administration of
justice in any manner. It is not the case of the applicant that the
advocate engaged by them practicing at Darwha is not equally
competent. It is also not their case that the Advocate engaged from
Darwha Bar to represent them is not discharging his duties to their
satisfaction. It is also not their case that the advocate engaged from
Darwha bar would be influenced by the petitioner. In my view, before
passing the order for transfer, the learned Judge was required to
consider these facts. The transfer of a proceeding from one Court to the
another Court can be made only when the Court is satisfied that fair
trial is in peril. It has come on record that accused no.3 is none other
than the ex-employee of the District Court at Pusad. I am informed
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that he has retired from service one year back.
10. In my view, considering all these facts, it would not be just
and proper to transfer the case from the Court at Pusad to the Court at
Darwha. Transfer of the case with certainty can cause inconvenience to
the witnesses. The respondents/accused have engaged an Advocate of
their choice. It is not their case that on account of the reluctance of the
advocates from Pusad Bar, they are without legal assistance. In my
view, in the backdrop of these facts, the learned Judge was not right in
granting the prayer made on behalf of the accused for transfer. In view
of the above, the orders passed by the learned Judge dated 27.03.2024
transferring Sessions Trial No. 15/2022 and Cri. Revision No. 10/2022
from the Court of Additional Sessions Judge, Pusad to the Court of
Additional Sessions Judge, Darwha, are required to be quashed and set
aside.
11. Accordingly, The Criminal Writ Petition is allowed.
The orders dated 27.03.2024 passed by the learned
Principal District and Sessions Judge, Yavatmal, in Other Misc.
Criminal Application Nos. 28/2023 and 35/2023, are quashed and set
aside.
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12. The petition stands disposed of. Rule is made absolute in
the aforesaid terms.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 27/11/2024 18:56:08
