Rajesh Kohli vs State (Union Territory of Chandigarh)

V.K. Bali, J.—Rajesh Kohli, a practising lawyer in the District Courts, Chandigarh and facing trial under Sections 456, 467 and 468 of the IPC before the Chief Judicial Magistrate, Chandigarh, seeks transfer of the case registered against him vide FIR No. 25 dated January 27, 1994, in this petition filed by him u/s 407 of the Code of Criminal Procedure.

The only question that requires determination is as to whether there is actually an apprehension based upon cogent grounds in the mind of the petitioner that he will not get fair trial, as is his case, or that he is making grounds to delay the matter, there being no cogent ground for transfer available to him by coining even instances which are nothing but figment of his imagination, as is the case of the respondent-U.T., Chandigarh. Before the matter is discussed any further, it shall be relevant to mention brief facts culminating into filing of this petition.

An FIR bearing No. 25 dated January 27, 1994 pertaining to Police Station Central, under Sections 466, 467, 468. IPC came to he registered against the petitioner with the broad allegations that in a petition for divorce by mutual consent of that parties between Shashi Kant Vohra, his brother-in-law, and Smt. Pratibha Vohra, his sister, he altered some part of the petition for mutual divorce without the permission of the Court. The FIR came to be registered on a complaint lodged by Ms. Kusum Lata, Copy Clerk which was addressed to the District & Sessions Judge, Chandigarh and reads as follows :-

It is brought to your kind notice that Shri Rajesh Kohli, Advocate, came to me in the morning today and asked me to give him the H.M.A. case file No. 65/24-7-1993 titled as Mrs. Pratibha versus Shashi Kant, as Shri Bagirath Sharma, Ahmad had told him that the said file is in the copying agency and told him to inspect the file there. His application has already been allowed on 25-1-1994. The file was lying on my table and he started to Inspect the file. Mr. Ghansham Sharma the other copyist was on leave today and I was awfully busy to entertain the public after few minutes Shri Pawan Kumar, Copyist in the Copying Agency of Senior Sub Judge, Chandigarh brought to my notice that Mr. Kohli, Advocate is adding something in the file and I immediately asked him to return the file. Then I came to know about the adding being done by Mr. Kohli i.e. amount from Rs. 75,000/- to Rupees 2,75,000/- in figure as well as in the wording with pen at two places (Photo copy attached). I brought this fact to the notice of Mr. Bagirath Sharma and worthy Superintendent. It is brought to your kind notice for taking appropriate action against Mr. Kohli, Advocate.

The District & Sessions Judge, Chandigarh, forwarded the complaint to the Chief Judicial Magistrate, Chandigarh for favour of necessary action under intimation to him. Mr. Sekhar Dhawan, Chief Judicial Magistrate, Chandigarh, on the same very date forwarded the complaint in original to the S.H.O., P.S. Central, Chandigarh, by mentioning therein that the complaint disclosed cognizabte offences and that the Sh. O. P.S. Central, Chandigarh, should register and investigate the case u/s 156(3) of the Code of Criminal Procedure.

The basic contention of teamed counsel for the petitioner appearing in support of the cases for transferring the matter is that all important prosecution witnesses, who have to be examined in this case, were officials of the District courts, Chandigarh. The list of witnesses, to be examined by the prosecution, has been given in para 4 of the petition. AH that is required to be mentioned is that besides some Advocates, other witnesses are. of course, officials of the District Courts, Chandigarh, but the Chief Judicial Magistrate, Chandigarh, (for short the '' C.J.M.) has not been cited as witness of the prosecution. It is the case of the petitioner that since the prosecution witnesses are all employees of the District Courts, Chandigarh, it cannot be expected that they will depose truly before the court at Chandigarh under the fear of losing their service or otherwise. It is also pleaded and so argued that possibility of their deposing the truth in any other Court away from Chandigarh, is quite expected. It is also the case of the petitioner that inasmuch has the CJM himself has ordered the registration of the case, he should have himself transferred the case from his Court.

In response to the notice issued by this Court, reply has been filed by the U.T., Chandigarh, through Shri Bhagwan Singh, Sub Inspector, Police Station Central Section 17, Chandigarh, who is investigating Officer of the case. It is pleaded therein that this petition has been filed with mala fide intention. The case was sent up for trial before the C.J.M. after presentation of challan on August 20, 1994. Thereafter, charge was framed vide orders dated May 30, 1995 whereas the present petition was filed in August, 1995. It is, thus the case of the U.T. Chandigarh, that delay, with which the petitioner has approached this Court, was in itself sufficient to deny him the relief. It is also pleaded that the petitioner has not chose to challenge the charge framed against him in any Court till date. C.J.M. was neither cited as witness nor is he in any manner connected with the case. However, inasmuch as the complaint was made by copy Clerk on the administrative side to the District & Sessions Judge, Chandigarh, who forwarded the same as such to the C.J.M., the C.J.M. trying it as a complaint case, asked for report after investigation from the S.H.O. Police Station Central, by virtue of powers vested in him u/s 156(3)(c) of the Code of Criminal Procedure and thereafter the case continued in the Court of the C.J.M. As such no ground for transfer was made out after a delay of more than 1 1/2 years. It is also pleaded that at no juncture the C.J.M. was involved in the matter on the administrative side. It is further pleaded that there are number of cases pending against the petitioner. An FIR No. 177 dated December 29,1994 Under Sections 420/468/471/473/120B, IPC, P.S. Sector 36, Chandigarh, another FIR No. 5/1995, u/s 411, IPC Sector 36, Chandigarh, yet another FIR No. 117 dated August 18,1995, u/s 379, IPC P.S. West Chandigarh, as also FIR No. 329 dated October 17, 1994, u/s 379, IPC P. S. East Chandigarh, came to be registered against him and the petitioner is facing trial in the aforesaid cases before the Court of Shri B.S. Mehandiratta, Addl. Chief Judicial Magistrate, Chandigarh.

The matter was being postponed from time to time and on October 30, 1995, learned counsel for the petitioner sought for time to file additional affidavit, which was allowed. In the additional affidavit dated November 4, 1995, all that is mentioned is that the officials out of confusion started alleging that the interpolation was done by the petitioner in the petition for divorce with mutual consent but the petitioner tried his best to pacify them by saying that he had not done anything. However, the officials rushed to the Office room of the Superintendent. District Courts, Chandigarh and thereafter the petitioner learnt that the matter was discussed amongst the Judicial Officers including the District & Sessions Judge, Chief Judicial Magistrate and some other judges of the District Courts, Chandigarh. It is also pleaded in the additional affidavit that the complaint signed by Ms. Kusum Lata and thereafter the order of the District & Sessions Judge, Chandigarh, appear to have been typed in the same process. On November 20, 1995, learned counsel for the petitioner prayed for some time to file yet another affidavit. The matter was adjourned to November 28, 1995. An affidavit dated November 24, 1995, has been filed by the petitioner wherein it is mentioned that he had learnt-that even before registration of the case, the District Attorney and Inspector Nanha Ram, P. S. Central, Chandigarh, had also come present in the Court of the C.J.M. and for proving all this, he will have to summon the C.J.M. as defence witness. It is on that count, it is pleaded, that he apprehending that he would not get fair trial from the Court of the C.J.M. the reply mention whereof has been made above is dated November 24, 1995 and, therefore, it contains reply to additional affidavits filed by the petitioner also. It is plead where in that petitioner has not disclosed the source of his knowledge nor has brought any material on records of this Court to show that he had learnt that this matter was discussed amongst the Judicial Officers including the District & Sessions Judge as also the C.J.M. It is further pleaded that the District & Sessions Judge, Chandigarh, was not in anyway involved in the trial of the case and that the witnesses of the case would remain the same i.e. from Chandigarh Court as the offence was committed at Chandigarh.

I have heard learned counsel for the parties at considerable length and have perused the records. The primary contention of learned counsel for the petitioner that inasmuch as the C.J.M. Chandigarh. had ordered the registration of the case and, therefore, he, being a party, should not have tried the case or in any case this circumstance is enough to raise reasonable apprehension in the mind of the petitioner that he would not get fair trial, does not at all appear to be sound. The positive case of the respondent U.T. pleaded in the written statement is that the C.J.M. had tried it as a complaint case on receipt of complaint of Ms. Kusum Lata, Copy Clerk, which was routed to him through the District & Sessions Judge, Chandigarh. He had only asked for report after investigation by virtue of powers vested in him u/s 156(3)(c) of the Code of Criminal Procedure. The order dated January 27, 1994 passed by the CJM, runs thus:-

Forwarded in original to SHO PS Central Chandigarh. As the complaint disclosed cognizable offences, SHO PS Central, Chandigarh is directed to register and investigate the case u/s 156(3) of the Code of Criminal Procedure.

Chapter XII of the Cr. P.C. deals with information to the police and their powers to investigate. As per the provisions contained in Section 154 every information relating to the commission of a cognizable offence has to be reduced into writing and signed by the person giving it. Section 155 of the Code deals with information as to non-cognizable cases and investigation of such cases. u/s 156 of the Code any officer in charge of a police station, without the order of a Magistrate, can investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub-clause (3) of Section 156 of the Code empowers a Magistrate to order such an investigation as contained in Sub-section (1) of Section 156. It is, thus, absolutely clear from the provisions of Sub-section (3) of Section 156 of the Code that a Magistrate is empowered to order registration and investigation. The matter need not be discussed any further as it is not even disputed by learned counsel for the petitioner that the Magistrate has such a power. If that be so, there is no question of the C.J.M. being party to the case as is sought to be made out by the petitioner. In deed, it is the admitted position that he has not even been cited as witness nor could be possibly be a witness in the case. The procedure of lodging a complaint before the Magistrate disclosing cognizable offence, is one of the most practised procedure and it is a matter of common knowledge that hundreds of such complaints are filed before the concerned Magistrates and in quite a few of them orders of investigation u/s 156(3), Cr. P.C. are passed. If what is being argued by learned counsel for the petitioner is accepted, then in all such cases the matters pending before the Magistrate ordering investigation, should be transferred. The contention of learned counsel, which, as referred to above, is the primary contention, is thus repelled.

The other contention of learned counsel for the petitioner that since all the prosecution witnesses are officials of the District Courts, Chandigarh, they have to depose in tune with the prosecution version and would not come up with the truth for fear of loss of their service, appears to be totally imaginary and is wholly un-founded. It requires to be mentioned that there is not even a whisper in the entire petition that the C.J.M. is in any way interested in the success of the prosecution story or in any manner connected with the matrimonial case in which interpolations have been alleged against the petitioner or even remotely connected to any of the prosecution witnesses inclusive of the first informant. If none of the Judicial Officers posted at Chandigarh, is interested in the success of the prosecution version, it is not understandable as to how it can be said that in case the prosecution witnesses do not adhere to their statements made by them u/s 161, Cr. P.C. the same shall be at the risk of their service. I am quite convinced that all these grounds arc being made, as is the case of the respondent-U.T., simply with a view to delay the proceedings and the alleged grounds of transfer are nothing but an out-come of wild imagination of the petitioner.

Insofar as additional affidavits are concerned, suffice it to say that the contents thereof are such that have nothing at all to do with the transfer of the case or are such which have not been even prima facie proved. The fact that the officials out of confession started alleging that the interpolation was done by the petitioner in the petition for divorce with mutual consent but the petitioner tried his best to pacify them by saying that he had not done the same and the officials rushed to the office room of the Superintendent, District Courts, Chandigarh, is wholly irrelevant and this ground is not germane to the transfer of the case. If at all the aforesaid fact might have any relevance, it would be only at the time when the petitioner leads his defence evidence. The assertion of the petitioner that he had learnt that the matter was discussed amongst the Judicial Officers posted at Chandigarh, appears to be only in the realm of conjectures and surmises. He has not disclosed any source from which he might have even learnt about such a meeting of the Judicial Officers. The contents of second affidavit dated November 24. 1995 are also of the same nature. It is stated in the said affidavit that the petitioner had learnt that even before the registration of the case District Attorney and Inspector Nanha Rain had also come present in the court of the C.J.M. The source of this information has also not been disclosed. Even the time and manner the petitioner came to know about this information, has also not been disclosed. Assuming that his information is based upon some source, even then, in considered view of this Court, the same is totally meaningless and would have no bearing upon the transfer of this case, as ail that is mentioned in the additional affidavit is that the petitioner learnt that the District Attorney and Inspector Nanha Rain had come present in the Court of the C.J.M. before the registration of the case. It requires to be mentioned that there is no further assertion made by the petitioner that the matter was discussed with the CJM. I do not, however, wish to comment any further with regard to the contents of affidavit dated November 24, 1995 but for to, prima facie, observe that the C.J.M. could not possibly be a defence witness and it is wholly un-understandable as to how he could serve the cause of the petitioner if he was to be examined as witness to depose that Inspector Nanha Ram had come to the Court of the CJM before registration of the case to meet the District Attorney.

Considered, thus, from any angle, it appears to this Court from the narration of the facts given above, that there is no substance in the present petition and infact it appears to have been filed simply with a view to delay the finalisation of the trial against the petitioner. The delay with which it has been filed i.e. 1 1/2 yeas from the date of presentation of the challan also talks a volumes of the real intention of the petitioner in filing the present petition.

Dismissed.