Yogendra Dohrey vs State of U.P.

Narayan Shukla, J.—Heard Mr. Dileep Kumar, learned Counsel for the applicant as well as Mr. I.B. Singh, Special Public Prosecutor, on behalf of the State.

The Petitioner has prayed for issuing a direction to conclude the trial in question through a Judge other than the Presiding Judge, on the ground that he has already made up his mind by dictating the judgment, of which the pronouncement was stayed by this Court. In support of his submission the Petitioner has relied upon the observations of the Hon''ble Supreme Court given in the case of Md. Sukur Ali v. State of Assam, reported in JT 2011 (2) SC 527, in paragraph 19 and 20, which are extracted below:

For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned Counsel for the Appellant in the High Court, or any other counsel which has been engaged by the Appellant, or in the absence of these, an amicus curiae being a lawyer practicing on the criminal side.

The case shall be heard by a Bench of Judges other than those who passed the impugned judgment.

The main ground for seeking such a relief is that since late evening of 14th of April, 2011 one ETV Channel was exhibiting the story of Manoj Gupta''s case. The background voice repeatedly stated that tomorrow the accused persons will be sentenced by the trial court, whereas the judgment of the trial court is yet to be pronounced. This factor of exhibition was communicated to the learned Presiding Judge through an application moved on behalf of the accused-applicants.

Through another application it was also stated that the exhibited story of the case on T.V. Channel amounts to interference in the administration of justice, which makes liable the concerned guilty persons to punish under the Contempt of the Courts Act. The trial court has registered the same as a separate case. It is also stated that the Trial Judge was to hand over the charge on 15th of April, 2011, but by means of administrative order dated 13th of April, 2011 he has been permitted to continue to stay for further period of three months. Thus the circumstances which were on the date of pronouncement of the judgment have changed now, therefore, in light of the observations made in paragraph 20 of Md. Sukur Ali case (Supra), the trial of the case be handed over to other Judge of competent jurisdiction. It is submitted that since the Presiding Judge of trial court had already made up his mind and dictated the judgment for its pronouncement on 15th of April, 2011, as per the established law as in Md. Sukur case (Supra) of the Hon''ble Supreme Court under the judicial propriety, the arguments may be heard afresh by any Judge other than the Presiding Judge, under the changed events and circumstances in the interest of justice to ensure the faith and confidence in the judicial system in the administration of justice.

A short counter affidavit has been filed by the State of U.P. raising the objection against the maintainability of the petition with the submission that the complainant Smt. Shashi Gupta, who is a necessary party to the proceeding, has not been impleaded as a party in the petition, therefore, due to non-joinder of the necessary party, the petition deserves to be rejected. Further the relief as sought in the petition, is a relief for transfer of the case to another court, which can be sought u/s 407 of the Code of Criminal Procedure before the Sessions Judge itself and even after refusal by the learned Sessions Judge, the Petitioner has a remedy to approach this Court u/s 408 of the Code of Criminal Procedure. It is stated that though the date for pronouncement of judgment was fixed on 15th of April, 2011, but as per direction of this Court, the same has been postponed and learned Counsel of the accused has been provided opportunity for arguments which is going on. So far as the exhibition by T.V. Channel for giving sentence to the accused, is concerned, he placed the exhibited part recorded in writing and submitted that no such information was given either by the Presiding Judge or by the Public Prosecutor. Only in the misconception just to avoid the completion of proceeding of trial by the present Presiding Judge, the Petitioner has moved such a frivolous application.

Indisputably this Court by means of order dated 15th of April, 2011 extended three days time for arguments to the learned Counsel for the accused, by staying the orders, whereby the arguments were closed and also issued direction to complete the proceedings accordingly. Consequently the learned Presiding Judge necessarily had to postpone the pronouncement of judgment, and he postponed also and now he has to pronounce the judgment after hearing the arguments of learned Counsels for the parties. It is not in dispute that judgment was not pronounced till date, therefore, only on the basis of exhibition of a TV channel to the effect that the accused shall be sentenced, it cannot be presumed that in any manner it was communicated by the learned Presiding Judge. More so he has taken cognizance of it and registered the case separately, therefore, I am of the view that the petition lacks merit and the same is dismissed, as such.