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Judgment
This order disposes of petition filed under section 482 and section 407 Cr.P.C read with Artice 227 of the Constitution of India.
This petition has been filed against the order dated 01.12.2018 of the Sessions Judge, Dewas rejecting the transfer of criminal case No.359/2010 pending in the Court of Special Judge (SC/ST Act), Dewas in which the petitioners are facing trial for committing offence under sections 148, 452, 294, 307/149, 353/149 IPC and also under section 3 of Prevention of Damage to Public Property Act, 1984 read with section 149 of IPC.
The petitioners had submitted before the Sessions Judge that the trial Court was acting in prejudicial manner and, therefore, petitioners had filed an application under section 408 Cr.P.C which was registered as MJC No.485/18 which was however rejected. In the petition filed under section 482 Cr.P.C it has been stated that an application for urgent hearing was filed by the petitioners before the Sessions Judge on 20.11.2018. The Sessions Judge, Dewas orally expressed reservations against hearing the arguments on realizing that the constitution of special Courts and appointment of Special Judge is done by the High Court and, therefore, he did not hear the case on merits. However, in the proceedings the Sessions Judge recorded that the arguments were heard and fixed the date of pronouncing the order. However, on 01.12.2018 the Sessions Judge passed order on merits of the case. This was contrary to his earlier stand that he lacks jurisdiction as per verbal exchange. Thus, the order was passed on merits without giving opportunity to the petitioners for making submissions on merit. Therefore, on 04.12.2018 petitioners filed an application in the transfer case seeking opportunity of placing arguments on merits. This application was, however, rejected by the Sessions Judge. Thus, the order pronounced by the Sessions Judge is allegedly illegal, improper and unreasonable as the same was passed without providing opportunity of leading arguments on merits and principles of natural justice have been violated. The petitioners prayed that impugned order dated 01.12.2018 and 04.12.2018 be quashed and that criminal case No.359/2010 be transferred from the Court of Special Judge, Dewas.
Submissions on behalf of petitioners and State were heard.
The question before this Court is whether any impropriety was committed by the learned Sessions Judge Dewas so much so that orders passed by learned Sessions Judge dated 01.12.2018 and 04.12.2018 deserve to be quashed. Second, whether the criminal case No.359/2010 pending in the Court of Special Court, Dewas deserves to be transferred to some other Court.
The petitioners have filed copies of order sheets of the Sessions Judge while considering application under section 408 Cr.P.C. The petitioners have stated that on 20.11.2018 Sessions Judge, Dewas constrained from hearing the arguments on realizing that constitution of Special Court and appointment of Special Judge is done by the High Court, however, in the proceedings he recorded that arguments were heard. A perusal of the order sheets dated 20.11.2018 which is submitted by the petitioner, however, show that it has been recorded that arguments were heard and the case was fixed for orders. Thus, it is not proved that Sessions Judge said one thing and did another i.e. it fairly stated that he did not have jurisdiction. There is no record on the basis of which it can be stated that Presiding Officer had clearly expressed reservations regarding his jurisdiction. It appears from the order sheets (Annexure P/2) that on 01.12.2018, after pronouncing of order, another application was filed 3 days later in which it has been stated that proper opportunity of hearing was not given and learned Sessions Judge has recorded that order having already passed and the Court has become functus officio and that no further order is required on unfounded application. There is nothing in this order dated 04.12.2018 which shows that the Presiding Officer had admitted that he had not heard the arguments earlier. The Sessions Judge has in fact turned the application dated 04.12.2018 to be unfounded application. Hence, the petitioners have not been able to satisfactorily show that the Sessions Judge had orally expressed that he did not have jurisdiction. It was quite clear that no charges under the provisions of SC/ST Act were framed against the accused in this case and all the charges were in respect of provisions of IPC and another Act (not under the SC/ST Act) and the Sessions Judge was well within his rights to transfer the case to another ASJ posted in Dewas district on satisfaction of the petitioners being prejudiced with and with Sessions Judge having jurisdiction or was correctly passed on merit. Thus, there is no ground to quash the order dated 01.12.2018 and 04.12.2018 passed by Sessions Judge.
Regarding the other prayer that is prayer to transfer criminal case No.359/10 from the Court of Special Judge (SC/ST Act) to some other Court, it becomes necessary to consider the proceedings which were termed to be prejudicial by the petitioner. In the first place it has to be noted that the case is of the year 2010 and is much more than 5 years old which needed expeditious disposal. Learned Special Judge has duly sent the photocopies of the order sheets which show that prosecution evidence was closed on 9.7.2018 and the case was fixed for accused statement, however, on the date of the accused statement, an application under section 91 & 311 Cr.P.C was moved on 17.07.2018 which was rejected. However, on the next date i.e. on 31.07.2018 again an application under section 311 & 91 Cr.P.C was filed which was again rejected. The case was again fixed for accused statement on the next date i.e. on 04.08.2018, when an application under section 310 (2) Cr.P.C was filed praying for spot inspection. This application was also rejected and again case was fixed for accused statement. On the next date i.e on 11.08.2018 accused statement was recorded and the case was fixed for providing list of defence witnesses. Since then the case is being posted for recording of defence witness. Some accused themselves have deposed in defence and meanwhile application under section 91 Cr.P.C has been filed and disposed of on 16.11.2018. Once again the application under section 91 & 311 Cr.P.C has been filed and disposed of vide order dated 25.01.2019. It can easily be seen that there had been endeavour on the part of the petitioners to impede the progress of the trial in case which is pending for more than 5 years whereas the High Court and the Supreme Court are extreamly strict with specific direction to dispose of such cases most expeditiously. The petitioners have clearly taken recourse to such measures which amount to protraction of trial. The Apex Court in the case of Advocate General vs. Shivkumar in Criminal Appeal No.1187/2288/2015 has held that fairness of trial has to be seen not only from the point of view of the accused but also from the point of view of the victim and society and that in the name of fair trial, the system cannot be held to ransom. In Bablukumar vs. State of Bihar 2015 8 SCC 787, it has been held that it is the duty of the Court to see that neither prosecution nor accused play truancy with criminal trial and that Judge has to adopt pro-active approach. In Asha Ranjan vs. State of Bihar AIR 2017 SC 1079 it has been held that fair trial is a concept that keeps in its sweep interest of accused as well as of prosecution and the victim. A perusal of order sheets of the trial Court show that repeated endeavour to protract the trial by filing repeated application under section 91 & 311 Cr.P.C have been dealt with by the trial Court with due seriousness and patience. The petitioners have thus clearly abused the process of the Court. Learned counsel for the petitioners submitted that whereas the prosecution case could prolong for 8 years, even few months have not been provided to the parties. This submission was considered. Responsibility on the prosecution to prove a case beyond reasonable doubt is much more than that on the part of the accused who only has to discredit the prosecution witness and his defence also ought to be of such nature which at the most creates doubt in the prosecution story and, therefore, the submission that accused also be given equal and proportionate time for leading evidence as prosecution witnesses is improper. Accused only needs to be given adequate opportunity for putting up his defence and the rope given to accused is not needed to be as long as that of prosecution. Consequently, the petition filed by the petitioners is without substance and is rejected. This Court although considered imposition of cost on the petitioners for committing acts which has tended to protract the trial, yet is refraining from doing so. However, specific direction is being issued that case be now disposed of expeditiously by the trial Court. It is also made clear that no repeated opportunities for leading final arguments shall be given by the trial Court and neither of the parties (prosecution or defence) shall be allowed to protract the trial further.
A copy of this order be sent to the trial Court for compliance.