Jagdish Singh Kaurav vs The State Of Madhya Pradesh
2022 Latest Caselaw 12445 MP

                             1

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 19th OF SEPTEMBER, 2022

            CRIMINAL REVISION No. 3364 of 2022

      Between:-

      JAGDISH SINGH KAURAV S/O
      GANGAPRASAD KAURAV AGED-74
      YEARS, OCCUPATION- KASTKAR,
      RESIDENT OF VILLAGE, MANPUR,
      THANA AINDORI TEHSIL GOHAD,
      DISTRICT-   BHIND    (MADHYA
      PRADESH).
                                           ........PETITIONER

      (BY SHRI JITENDRA SINGH KUSHWAH- ADVOCATE)

      AND

1.    THE   STATE       OF    MADHYA
      PRADESH,

2.    RAMAUTAR SINGH         S/O   SHRI
      ARJUN SINGH,

3.    RAMJILAL KAURAV S/O RAMHET
      SINGH,

4.    JARDAN SINGH KAURAV S/O SHRI
      KAPTAN SINGH,

      PRESENT     R/O   CENTRAL    JAIL,
                                            2

       GWALIOR (MADHYA PRADESH).

5.     KRISHNA ALIAS KRISHNA SINGH
       KAURAV S/O SHRI FIRANGI
       SINGH,

6.     RINKU ALIAS DESHRAJ KAURAV
       S/O SHRI PRATAR SINGH,

7.     SUSHANT KAURAV                     S/O      SHRI
       RAMADHAR SINGH,

8.     PRASHANT KAURAV S/O
       SHRI RAMJILAL,

       ALL ARE R/O- VILLAGE MANPUR,
       THANA-ANDORI,       DISTRICT-
       BHIND (MADHYA PRADESH).
                                                            ........RESPONDENTS

       (SHRI G. K. AGARWAL - PUBLIC PROSECUTOR FOR
STATE)
----------------------------------------------------------------------------------------
       This revision coming on for hearing this day, the Court passed the
following:
                                       ORDER

This criminal revision under Sections 397, 401 of CrPC has been filed against the order dated 05/08/2022 passed by the Sessions Judge, Bhind in MJCR No.237/2022 by which the Sessions Judge, Bhind has refused to transfer the case.

2. It is submitted by the counsel for the applicant that a trial is pending in the Court of Additional Judge to the Court of First Additional

Sessions Judge, Gohad in S.T. No. No.92/2021. The Presiding Judge has granted bail to some accused persons, whereas they were not entitled for the same, therefore, the petitioner has a reasonable apprehension that he may not get justice from the Court of the Trial Judge and, accordingly, he filed an application under Section 408 of CrPC.

3. Comments of the Presiding Judge were called. It was stated by the Presiding Judge that co-accused Ramjilal, Prashant and Sushant Kaurav were granted bail on the ground that similarly situated persons namely, Ramautar and Deshraj @ Rinku were granted bail by the High Court. It was opined by the Presiding Judge that he has no objection in case, if trial is transferred. The Sessions Judge rejected the application filed under Section 408 of CrPC on the ground that no documentary evidence has been filed by the applicant and the bail has been granted on the basis of bail granted to the co-accused and the allegations are baseless.

4. Challenging the order passed by the Court-below, it is submitted by the counsel for the applicant that the Sessions Judge, Bhind has not assigned any reason for rejecting the application.

5. The Sessions Judge should have given a finding as to whether the co-accused were granted bail by the Trial Court properly or not. The doctrine of "parity" has already been explained by this Court in the case of Sikandar Singh Narvariya alias Lalu Vs. State of Madhya Pradesh and another by order dated 04.10.2021 passed in Criminal Appeal No.5870/2021, which has been affirmed by the Supreme Court in SLP (Cri) No.9149/2021 by order dated 26.11.2021 in the case of Axay Kumar Dwivedi Vs. State of Madhya Pradesh. Without assigning any reason, the Sessions Judge, Bhind has rejected the application filed under

Section 408 of CrPC.

6. Per contra, the application is vehemently opposed by the counsel for the State. It is submitted that merely because an unfavourable order has been passed, the same cannot be a ground for transfer of the case.

7. Heard the learned counsel for the parties.

8. The contention of the counsel for the applicant that the Sessions Judge, Bhind has directly jumped to the conclusion without assigning any reason appears to be correct. Reasons are the heartbeat of an order. Every finding should be supported by a reason so that the litigant must know as to why he has been denied the relief. The Supreme Court in the case of Tutul Kumari Sen v. State of Jharkhand reported in (2009) 13 SCC 495 has held as under:-

8. "3. ... This Court in State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49] has while reiterating the view expressed in the earlier cases for the past two decades emphasised the necessity, duty and obligation of the High Court to record reasons in disposing of such cases. The hallmark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. ... Any judicial power has to be judiciously exercised and the mere fact that discretion is vested with the court/forum to exercise the same either way does not constitute any licence to exercise it at whims or fancies and

arbitrarily as used to be conveyed by the well- known saying: 'varying according to the Chancellor's foot'. Arbitrariness has been always held to be the anathema of judicial exercise of any power, all the more so when such orders are amenable to challenge further before higher forums. ... Such ritualistic observations and summary disposal which has the effect of, at times, ... cannot be said to be a proper and judicial manner of disposing of judiciously the claim before courts. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind." [Ed.: As observed in State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573 : (2008) 2 SCC (Cri) 53, at SCC pp. 575-76, para

3.]

9. The order which has been passed by the Sessions Judge, Bhind is not a reasoned order, but this Court would like to consider the submission made by the counsel for the petitioner. It is the case of the applicant that the Trial Judge had granted bail to three accused persons, but their cases were not at par with the accused persons who were granted bail by the High Court. The counsel for the applicant has also admitted that the applicant has not filed an application for cancellation of bail granted by the Trial Court.

10. The question for consideration is "as to whether the application for cancellation of bail can be moved before the Trial Court itself or not ?"

11. The Supreme Court in the case of Abdul Basit v. Mohd. Abdul Kadir Chaudhary reported in (2014) 10 SCC 745 has held as under:-

26. In the instant case, the order for bail in the bail application preferred by the accused- petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Code, it does not vest the power of review in the court which granted bail. Even in the light of fact of misrepresentation by the petitioner-accused during the grant of bail, the High Court could not have entertained the respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition.

12. Thus, where cancellation of bail is sought on the ground that the liberty has been misused by the co-accused, then the application would lie before the same Court and if the cancellation is sought on the ground that the bail has been granted erroneously without considering the material available on record, then the application would lie before the superior Court and in absence of any application before the High Court it is very difficult for this Court to adjudicate as to whether the bail to some of the co-accused persons was granted by the Trial Court erroneously or it was in accordance with law. Furthermore, merely because an unfavourable order has been passed, it cannot be a ground to transfer the case.

13. The Supreme Court in the case of Anupam Ghos and another Vs.

Faiz Mohammad and Others passed on 02.09.2022 in case No. Transfer Petition (c) No.2331-2334 of 2021 has held as under:-

One of the grounds on which the proceedings are sought to be transferred is that the petitioners believe that they are not getting a fair trial and the respondents being local bigwigs are able to influence the local Court. We deprecate such a stand and the ground on which the proceedings are sought to be transferred. Merely because some Orders are passed on judicial side (in the present case in the execution proceedings) which may be against the petitioners, it cannot be said that the Court, which passed the order was influenced. If the petitioners are aggrieved by any judicial order, the proper remedy would be to challenge the same before higher forum. But merely because some Orders adverse to them are passed by the Court, it cannot be said that the Orders on judicial side are passed under influence. Nowadays, there is a tendency to make such allegations against the judicial Officers whenever the orders are passed against a litigant and the orders are 2 not liked by the concerned litigant. We deprecate such a practice. If such a practice is continued, it will ultimately demoralize the judicial officer. In fact, such an allegation can be said to be obstructing the administration of justice.

The Supreme Court in the case of Usmangani Adambhai Vahora v. State of Gujarat reported in (2016) 3 SCC 370 has held as under:-

6. On a careful scrutiny of the order passed by the High Court, it is not clear whether the High Court has been convinced that the accused has any real apprehension or bias against the trial Judge. However, the observations of the learned Single Judge, as it seems to us, are fundamentally

based on apprehension and to justify the same, he has referred to the remarks offered by the learned Additional Sessions Judge to the Sessions Judge when explanation was called for. First, we shall refer to the issue of apprehension. The apprehension is based on some kind of conversation between the informant and another that the accused persons shall be convicted.

There is also an assertion that the trial Judge is a convicting Judge and that is why, the High Court has observed that he is in dilemma.

7. So far as apprehension is concerned, it has to be one which would establish that justice will not be done. In this context, we may profitably refer to a passage from a three-Judge Bench decision in Gurcharan Das Chadha v. State of Rajasthan [Gurcharan Das Chadha v. State of Rajasthan, AIR 1966 SC 1418 : 1966 Cri LJ 1071] , wherein it has been held : (AIR p. 1423, para 13) "13. ... The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the

apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."

8. This Court in Abdul Nazar Madani v. State of T.N. [Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 : 2000 SCC (Cri) 1048] has ruled that : (SCC pp. 210-11, para 7) "7. ... The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."

9. In Amarinder Singh v. Parkash Singh Badal [Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260 : (2009) 2 SCC (Cri) 971] , while dealing with an application for transfer

petition preferred under Section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that merely an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. In the said context, the Court has held thus : (SCC p. 273, paras 19-20) "19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.

20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one."

10. In Lalu Prasad v. State of Jharkhand [Lalu Prasad v. State of Jharkhand, (2013) 8 SCC 593 : (2013) 4 SCC (Civ) 103 : (2013) 4 SCC

(Cri) 406 : (2014) 1 SCC (L&S) 137] , the Court, repelling the submission that because some of the distantly related members were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the appellant. From the said decision, we think it appropriate to reproduce the following passage : (SCC p. 600, para 20) "20. Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-à-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent."

The aforesaid passage, as we perceive, clearly lays emphasis on sustenance of majesty of law by all concerned. Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in

exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. (See Nahar Singh Yadav v. Union of India [Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307 : (2011) 1 SCC (Cri) 39] .) 11 [Ed. : Para 11 corrected vide Official Corrigendum No. F.3/Ed.B.J./1/2016 dated 18-1- 2016.] . In the instant case, we are disposed to think that apprehension that has been stated is absolutely mercurial and cannot remotely be stated to be reasonable. The learned Single Judge has taken an exception to the remarks given by the learned trial Judge and also opined about non-examination of any witness by him. As far as the first aspect is concerned, no exception can be taken to it. The learned Sessions Judge, while hearing the application for transfer of the case, called for remarks of the learned trial Judge, and in such a situation, he is required to give a reply and that he has done. He is not expected to accept the allegations made as regards his conduct and more so while nothing has been brought on record to substantiate the same. The High Court could not have deduced that he should have declined to conduct the trial. This kind of observation is absolutely impermissible in law, for there is no acceptable reason on the part of the learned trial Judge to show his disinclination. Solely because an accused has filed an application for transfer, he is not required to express his disinclination. He is required under law to do his duty. He has to perform his duty and not succumb to the pressure put by the accused by making callous allegations. He is not expected to show unnecessary sensitivity to such allegations and recuse himself from the case. If

this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process. The unscrupulous litigants will indulge themselves in court hunting. If they are allowed such room, they do not have to face the trial before a court in which they do not feel comfortable. The High Court has gravely erred in this regard.

14. Since the applicant has not challenged the order of bail granted to the co-accused persons, therefore, his apprehension cannot be said to be real and passing of an unfavourable order cannot be a ground to transfer the case.

15. Accordingly, the order dated 05/08/2022 passed by the Sessions Judge, Bhind in MJCR No.237/2022 is hereby affirmed on different grounds.

16. The revision fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

Arun* ARUN KUMAR MISHRA 2022.09.22 17:29:47 +05'30'