Bombay High Court Daulatrao S/O Dashrath Dhonde-vs-The State Of Maharashtra And Ors. on 25 February, 2002
Equivalent citations:(2002) 104 BOMLR 5
Author: S Parkar
Bench: S Parkar, D Zoting
S.S. Parkar, J.
1. This Writ Petition has been filed seeking transfer of Sessions Case No. 141 of 1997 pending before the Additional Sessions Judge and Special Judge. Ahmednagar to any other Court for trial in accordance with law.
2. The petitioner is complainant in the State prosecution lodged against the accused respondent Nos. 2 to 4 to this petition for offence under Sections 498A and 304B r/w 34 of the Indian Penal Code. The deceased was the daughter of the petitioner who had committed suicide in the matrimonial house. On the complaint lodged by the petitioner the father of the deceased, prosecution was initiated against her husband and his parents i.e. respondent Nos. 2 to 4. The incident in question had taken place on 1.3.1997. The Sessions Case was scheduled to commence before the Additional Sessions Judge, Ahmednagar on 8.1.2002. Naturally, the petitioner being the complainant had to be examined first. It appears that in spite of his being unwell, the petitioner had himself gone to the Court and filed written application for adjournment of the trial on the ground of his illness for a period of two weeks. He had also filed Medical Certificate about his illness. The learned Judge accommodated the petitioner for a day and adjourned the matter to 9.1.2002 and wanted to examine other witnesses on that day. The petitioner was anxious that the trial should not have commenced on that day and the learned Additional Sessions Judge ought not to have examined other witnesses also. According to the petitioner, the learned Additional Sessions Judge has observed on the application of the petitioner that he would accommodate the petitioner by giving him time, but he can record the evidence of other miscellaneous witnesses. The words used by the learned Additional Sessions Judge were, “Chillar Sakshidar” and further observed that there is nothing special in the case and the case can be disposed of in two days.
3. The above observations made by the learned Additional Sessions Judge were taken literally and seriously by the petitioner and he carried an impression that the learned Judge had already made up his mind about the merits of the case and, therefore, apprehended that justice would not be done to him or to the cause of the prosecution in the matter. He, therefore, told the Court orally that because of the words used by the learned Additional Sessions Judge, he wanted to make application for transfer of his case before the learned Sessions Judge. He, therefore, immediately made application on the same day before the learned District and Sessions Judge for transfer under Section 409 of Criminal Procedure Code. The learned Additional Sessions Judge, however, proceeded to record the deposition of one witness on the same day. On the following day i.e. 9.1.2002, the petitioner made application for stay of the trial of the aforesaid prosecution pending before the learned Additional Sessions Judge. Simultaneously, the petitioner filed another application before the learned Additional Sessions Judge pointing out that he had filed transfer application before the learned Sessions Judge. The Additional Sessions Judge, therefore, stayed the further proceedings in the matter which was being tried by him. The application for transfer made before the learned Sessions Judge was disposed of by the order dated 24.1.2002 which is impugned in this petition.
4. The learned Sessions Judge had, in the mean time, called for the report from the learned Additional Sessions Judge, in which, latter denied having uttered the words which are mentioned earlier by us. The application for transfer was ultimately dismissed by the learned Sessions Judge. The learned Additional Sessions Judge in his report to the learned Sessions Judge, denied having made those remarks. The said application for transfer was also dismissed on the ground that the matter was part heard and, therefore, the learned Sessions Judge is not empowered under Section 409 of Criminal Procedure Code to transfer the case before any other Judge.
5. The present petition is filed on two grounds firstly challenging the constitutional validity of Section 409 of Criminal Procedure Code and secondly on merits stating that because of the utterances of objectionable words by the Additional Sessions Judge he was apprehensive that no justice will be done in the matter and, therefore, it was thought fit and proper by him that trial should take place before any other Additional Sessions Judges or Special Judge.
6. So far as the first contention is concerned, it was argued that when the power of transfer is vested in the Sessions Judge, he cannot be divested of the said power only because the matter becomes part heard. We are not impressed by the said argument at all. So far as the judicial powers are concerned, the Sessions Judge is not superior to the Additional Sessions Judge. The Sessions Judge has got the administrative powers to allot or assign the work to the different Additional Sessions Judges working with him. The administrative power of assignment of work can be exercised by the Sessions Judge until the Additional Sessions Judges commence hearing of the case. Once the case allotted to a particular Additional Sessions Judge is partly heard by that Judge, the Sessions Judge cannot have the power to withdraw the case from him, because so far as the judicial power are concerned, both are equal. In such cases, the High Court has got the power to withdraw the case as High Court is undoubtedly judicially Superior Court.
7. So far as merits of the petition are concerned, we cannot find fault with the petitioner, if really the alleged words were uttered by the Additional Sessions Judge. The learned advocate for the petitioner is right in his say that the words allegedly used by the Additional Sessions Judge in Marathi language normally mean that there is no substance in the case. This would show that the Additional Sessions Judge had made up his mind that there was no substance in the case but the Sessions Judge having called the report of the Additional Sessions Judge and latter having denied to have spoken those words, we have no reason to doubt the same.
8. The present case is a State prosecution, no doubt, initiated pursuant to the complaint lodged by the petitioner and, therefore, the petitioner was no more than a witness in the said prosecution. He, therefore, had no reason to ask for adjournment of the trial itself but could have asked for accommodating himself only and, therefore, the learned Additional Sessions Judge was not wrong in recording the evidence of other witnesses. No doubt, though the accommodation was asked for a period of two weeks by the petitioner, the Court accommodated him only for a day, may be because the petitioner did not appear to be bed ridden or seriously ill and he himself had gone to the Court to ask for date. It is significant to note that even on the following day i.e., 9.1 2002 till which date the petitioner was accommodated for recording his deposition, the petitioner was again before that Court personally present.
9. So far as the judicial proceedings are concerned, it is a matter of faith and satisfaction of the litigating parties. It is said that justice should not only be done but must appear to have been done and it is imperative that the Judicial Officers should always bear this in mind before making irresponsible utterances, which would lose the confidence of the litigating public. This is not to say that because the learned Additional Sessions Judge had uttered the words stating or meaning that there was no substance in the case, he had really formed the opinion about the case. We are hopeful that even if the learned Additional Sessions Judge had uttered the words, attributed to him by the petitioner, he will conduct the trial fairly and decide it in accordance with law. The case of this kind depends on the ultimate evidence that will be led by the parties, which can be reappreciated in appeal by the Appellate Court. It would have been different matter if this had been a private prosecution lodged by the petitioner himself. It is utmost important that litigants or the parties should have no apprehension that justice may not be done by the Court before which the matter is pending for decision. At it is, on the next day i.e. on 9.1.2002 when it was pointed out that application for transfer was made before the Sessions Judge, the Additional Sessions Judge immediately stayed further proceedings in the matter.
10. In the above circumstances, writ petition is rejected.