A bench of the Supreme Court of India comprising of Hon’ble Justices Dipak Mishra and Prafulla C. Pant held in a transfer case (Usmangani Adambhai Vahora Vs. State Of Gujarat) before them that even if an application before the superior court is pending for transferring a trial which is pending before the trial court, the Ld. Trial Judge should not be expected to show disinclination to hear the matter and that it is the duty of such trial court judge which he should be performing and should not succumb to the pressure that are made by the accused by making callous allegations.
In the instant case before the Supreme Court, the facts of the case are that the second respondent had filed a transfer petition before the Ld. Principal Sessions Judge, Kheda at Nadiad to transfer the trial case that was pending before the 3rd Additional Sessions Judge, Kheda at Nadiad to another Additional Sessions Judge in the same sessions division. The second respondent had over-heard a conversation between the informant and his son that the trial would surely be taken up for hearing the next date onwards and all the accused persons would definitely be convicted. It is also important to mention that the Additional Sessions Judge before whom such trial was pending is having the reputation of a ‘convicting judge’. So, this cultivated the fear in the mind of the second respondent that the justice would not be done in the case and that he would then be convicted by the Ld. Trial Judge.
Because of this fear in his mind that justice would not be served in his case, he filed a Criminal Misc. Application before the Principal Sessions Judge, Kheda under section 408 Cr.P.C. to transfer the instant case to any other court in the same sessions division. Section 408 Cr.P.C. gives the Sessions Judge power to transfer a case from a court subordinate to him to another court which is subordinate to him. The Ld. Principal Sessions Judge, while rejecting the application, had observed that once the trial had commenced, he has no jurisdiction to transfer the case in exercise of the power given under Section 408 CrPC.
Thereafter a case was filed under section 408 CrPC for transferring the case before the High Court. The High Court observed that the Ld. Trial Judge had not examined any witnesses and all the witnesses examined so far were by his predecessor in office. The HC further observed that the Presiding Officer himself had not also indicated his disinclination to hear the matter, and that apart, he had offered quite a stiff resistance to the plea of transfer. The Single Judge of the High Court further went on to observe that,
“…I am sure that the present Additional Sessions Judge would have acted in a true sense of a Judicial Officer. But nevertheless, to ensure that justice is not only done, but also seems to be done and in the peculiar facts of the case, I feel that it will be appropriate if the Principal Sessions Judge transfers the case to any other Additional Sessions Judge in the same Sessions Division. I make it abundantly clear that the transfer shall not be construed as casting any aspersions on the learned Additional Sessions Judge.”
Thus, the Single Judge of the High Court had transferred the case to another Additional Sessions Judge in the same sessions division on the ground that the presiding officer had not indicated his disinclination to hear the matter and he had even showed stiff resistance to transfer the case to another judge and also on the legal principle that Justice is not only done, but also seem to be done. Thus, the High Court had transferred the case to another Additional Sessions Judge in the same sessions division.
The Supreme Court observed certain points of the Single Judge’s Order to transfer the case. The Supreme Court stated that the High Court had observed, that no witnesses had been examined by the Ld. Trial Judge. The Supreme Court in response to this point stated that no exception can be taken in this case. The Supreme Court held that when the Ld. Sessions Judge had called for the records of the remarks of the Ld. Trial Judge while hearing the transfer case, the Ld. Trial Judge had merely replied, which he was supposed to do.
The Supreme Court, in response to the finding of the Single Judge of the High Court that the Trial Judge had not shown his disinclination to hear the matter and he had shown stiff resistance to transfer the matter, observed that the High Court should not have deduced that the Trial Judge has declined to conduct the trial. This kind of observation by the High Court was held to be impermissible in Law. The Supreme Court further observed that there is no reason for the trial judge to show his disinclination to hear the case and only because a party to the case has filed an application to transfer the trial, the trial judge is not expected to show his disinclination. Such trial judge is required under the law to perform his duty and should not at all recuse himself from the case on allegations. The Supreme Court stated that the High Court has gravely erred in making such an observation.
The Supreme Court further held that the Ld. Trial Judge had merely replied to the Sessions Judge when his remarks on the transfer application were sought for and it was his duty to reply to the Sessions Judge. It is not expected from the trial judge to be disinterested in a case only because that a transfer application has been filed in a superior court.
Quoting the Supreme Court,
“12. 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 absolute 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 to 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….” (emphasis supplied)
The Supreme Court held that the order passed by the Single Judge of the High Court cannot be sustained in law and they set aside such order. The Supreme Court further held that the Ld. Trial Judge is ordered to proceed with the trial and dispose of the same within 6 months.
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