Full Judgment Text
Cril.Appln.No.1898/07.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION No.1898/07.
APPLICANT: Ms.Sarika d/o Dinesh Rathi,
aged about 30 years, Occu: Education,
r/o Ramdaspeth, Nagpur.
.. VERSUS ..
NON-APPLICANTS :1.The State of Maharashtra,
through Police Station Officer,
Police Station, Sitalbuldi, Nagpur.
2. Madhukar s/o Wamanrao Samarth,
aged about 51 years.
3. Suresh Vitthalrao Manmode (Dead).
4. Prakash Badribabu Mistry,
aged about 61 years.
5. Yadao s/o Nathuji Kohchade,
aged about 61 years,
Nos.2 to 5 R/o Nagpur.
=-=-=-==-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr.A.P.Kshirsagar, Advocate for the applicant.
Mr.R.P.Joshi, Advocate for the non-applicants.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : C.L.PANGARKAR,J.
th
DATE : 6 September, 2007.
ORAL JUDGMENT.
1. Rule. Returnable forthwith.
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2
2. Heard Finally with consent of parties.
3. This is an application under Section 407 of the Code of
Criminal Procedure.
4. The applicant is an accused in Criminal Case No.349 of
2002 before the Second Additional Chief Judicial Magistrate,
Nagpur. She is facing trial under various Sections such as 468,
471 of Indian Penal Code. During the course of the trial, it is
alleged that, she had made several types of applications which
were rejected by the learned Magistrate and she apprehends
that the Magistrate is prejudiced against her and she may not,
therefore, get justice at his hands. She, therefore, had moved an
application before the Sessions Judge for transfer of the said
criminal case. The learned Sessions Judge rejected the prayer.
Since the learned Sessions Judge rejected the prayer, the
accused has approached this court.
5. I have heard Shri Kshirsagar, learned counsel for the
applicant and Shri R.P.Joshi, learned counsel for the non-
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3
applicants.
6. The applicant/accused attributes bias to the learned
Magistrate. It is the settled proposition of law that justice must
not only be done but seen to have been done. However, when a
transfer of a case is sought on ground of bias, it must be shown
that the apprehension of the accused that he will not get justice
is reasonable. Not any and every apprehension in the mind of
accused can be ground for transfer. It is, therefore, necessary
for applicant to place before the court the facts which give rise to
such an apprehension so as to enable the court to determine if it
is reasonable.
7. Shri Kshirsagar, learned counsel for the
applicant/accused, contended that the first such reason is the
rejection of the application of the accused/applicant to provide
legible copies to the accused. He submitted that inspite of
passing an order directing prosecution to supply the copies, the
learned Magistrate rejected the application and accused was
required to approach the court of Sessions. He submitted that
even after the court of Sessions Passed the order, the copies
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4
were not supplied. Here, it has to be borne in mind that it is the
duty of the prosecution to supply the copy and the blame cannot
be put at the door of the court. The learned counsel for the
prosecution, on the other hand, submitted that the grievance is
unjustified. He submitted that firstly the court had passed an
order on Exh.26 to supply the copies on 8/5/2006. There was,
therefore, already an order and unnecessarily second application
for supply of the copies was made. It is apparent from the
pleadings of the applicant in this petition that the court had
already passed an order for supply of the copies long back when
the second application was rejected. Further it may be
mentioned that the charge-sheet was supplied to the accused in
the year 1999 and right from 1999 to 2006, the applicant did not
make any grievance that the copies were not legible.
8. The next grievance made is in respect of issue of non-
bailable warrant against the applicant/accused. He submitted
that unnecessarily warrant was issued against the applicant and
this further shows the prejudice in the mind of the court. Shri
Joshi, learned counsel, submitted that on the date the warrant
was issued, neither the lawyer nor the accused was present and
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5
court was, therefore, justified in issuing the warrant. The record
shows neither of them was present before the court and court
was left with no other alternative but to issue a warrant. In no
case, therefore, the order can be faulted with. In fact, it appears
that the court had issued a warrant because the accused had left
the country without seeking permission of the court. It is in that
context, the order refusing to cancel the warrant was passed and
such a judicial order could not be in fact a ground to make any
grievance against a judge to show that he is prejudiced.
9. Mr.Khirsagar, learned counsel, then contended that the
accused wanted justice Kazi's report to be placed before court
and six weeks' time was sought and that application dated
2/2/2007 was arbitrarily rejected. The order shows that the
application was not rejected as is contended but a short
adjournment was granted. It also appears that after filing this
application neither the accused nor the counsel was present. Mr.
Kshirsagar sought to make capital out of order on application for
adjournment dated 5/6/2007. The accused states in this
application that she has lost all hopes of getting fair justice and
again sought six weeks' time. It appears that on 2/2/2007, six
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6
weeks' time was sought and matter was not heard till 5/6/2007
i.e. for almost three months. In any case, therefore, on 5/6/2007
the accused did get more than six weeks time to file a report. It
was not filed and yet the allegations were made against the
judge that accused would not get justice. Therefore, the
grievance as put by Mr.Kshirsagar carries no weight and shows
attitude of the accused to anyhow stall the matter. It seems
from the record the petition itself and the reply filed by the
prosecution that right from 2006 and even prior to that the only
attitude of accused was to stall the proceedings on one or the
other ground. It appears to me that the judge had acted fairly.
The accused had applied for permanent exemption and it was
granted by the court on the same day. Even an application for
permission to leave the country was also granted on the same
day by the learned judge. Now, had the judge had any kind of
grudge against the accused, he would not have granted both the
applications without any hesitation. Insistence of the judge to
hear the matter in no case can be treated as showing any
unfairness. Not only these two applications were granted
without hesitation but even on other occasion time was granted
though not as much as was sought by the accused. It appears
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7
that the accused is in England and it is difficult for her to come
back and that appears to be the reason why there is an attempt
to protract the proceedings. Mr.Khirsagar has relied on a
decision of the Supreme Court reported in 2004(4) SCC 158
(Zahira Habibulla H.Sk. and another ..vs.. State of Gujarat and
others). The facts of the reported case and this case cannot at
all be compared. In the reported case, the matter was
transferred out of the State itself because it was found that
atmosphere in the State was not conducive for the trial of the
case in that State. All the same, the court did look into the fact
that the apprehension was reasonable or not. The court had also
observed that the state of mind of the person who entertains the
apprehension no doubt is a material factor but not the only
determinative or concluding factor. Obviously, mere
apprehension is not enough. Mr.Kshirsagar had also relied on a
decision of Supreme Court in 2 000(7) SCC 129 (R.Balkrishna
Pillai ..vs.. State of Kerala). Almost similar are the observations
of the Supreme Court which I quote here -
“The petitioner's second contention also deserves to
be rejected. It is true that one of the principles of
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8
the administration of justice is that justice should not
only be done but it should be seen to have been
done. However, a mere allegation that there is
apprehension that justice will not be done in a given
case is not sufficient. Before transferring the case,
the court has to find out whether the apprehension
appears to be reasonable. To judge the
reasonableness of the apprehension, the state of
mind of the person who entertains the apprehension
is no doubt relevant but that is not all. The
apprehension must appears to the court to be
reasonable, genuine and justifiable. In the present-
day scenario, if these types of applications are
entertained, the entire judicial atmosphere would be
polluted with such frivolous petitions for various
reasons.”
Yet another decision of the Supreme Court reported in
2004(8) SCC 788 (M.P.Special Police Establishment ..vs.. State of
M.P. and others) placed before me to show what is meant by
bias. In the case at hand, I do not think that there is anything to
suggest that the approach of the judge is biased. He has been
acting fairly. The matter is being adjourned on the one or the
other count right from 2006. It is a part-heard matter. He had
granted permanent exemption and permission to leave the
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9
country without hesitation. Simply because a few orders are
adverse, an inference of bias cannot be drawn. It would be
inappropriate on the part of higher courts to transfer the cases
from one court to another on the ground that a few adverse
orders are passed against the party. If that is done, perhaps no
judge would ever be able to finally dispose off any case. The
learned Sessions Judge has rightly rejected the application. I too
find that there is no ground to transfer the case at all. The
application is rejected.
The learned counsel for the applicant contended that
the proceedings before the trial court be continued to be stayed
for period of six weeks to enable the party to approach the
Supreme Court. The trial court shall not proceed with the trial
for another four weeks.
JUDGE
chute
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION No.1898/07.
APPLICANT: Ms.Sarika d/o Dinesh Rathi,
aged about 30 years, Occu: Education,
r/o Ramdaspeth, Nagpur.
.. VERSUS ..
NON-APPLICANTS :1.The State of Maharashtra,
through Police Station Officer,
Police Station, Sitalbuldi, Nagpur.
2. Madhukar s/o Wamanrao Samarth,
aged about 51 years.
3. Suresh Vitthalrao Manmode (Dead).
4. Prakash Badribabu Mistry,
aged about 61 years.
5. Yadao s/o Nathuji Kohchade,
aged about 61 years,
Nos.2 to 5 R/o Nagpur.
=-=-=-==-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr.A.P.Kshirsagar, Advocate for the applicant.
Mr.R.P.Joshi, Advocate for the non-applicants.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : C.L.PANGARKAR,J.
th
DATE : 6 September, 2007.
ORAL JUDGMENT.
1. Rule. Returnable forthwith.
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Cril.Appln.No.1898/07.
2
2. Heard Finally with consent of parties.
3. This is an application under Section 407 of the Code of
Criminal Procedure.
4. The applicant is an accused in Criminal Case No.349 of
2002 before the Second Additional Chief Judicial Magistrate,
Nagpur. She is facing trial under various Sections such as 468,
471 of Indian Penal Code. During the course of the trial, it is
alleged that, she had made several types of applications which
were rejected by the learned Magistrate and she apprehends
that the Magistrate is prejudiced against her and she may not,
therefore, get justice at his hands. She, therefore, had moved an
application before the Sessions Judge for transfer of the said
criminal case. The learned Sessions Judge rejected the prayer.
Since the learned Sessions Judge rejected the prayer, the
accused has approached this court.
5. I have heard Shri Kshirsagar, learned counsel for the
applicant and Shri R.P.Joshi, learned counsel for the non-
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3
applicants.
6. The applicant/accused attributes bias to the learned
Magistrate. It is the settled proposition of law that justice must
not only be done but seen to have been done. However, when a
transfer of a case is sought on ground of bias, it must be shown
that the apprehension of the accused that he will not get justice
is reasonable. Not any and every apprehension in the mind of
accused can be ground for transfer. It is, therefore, necessary
for applicant to place before the court the facts which give rise to
such an apprehension so as to enable the court to determine if it
is reasonable.
7. Shri Kshirsagar, learned counsel for the
applicant/accused, contended that the first such reason is the
rejection of the application of the accused/applicant to provide
legible copies to the accused. He submitted that inspite of
passing an order directing prosecution to supply the copies, the
learned Magistrate rejected the application and accused was
required to approach the court of Sessions. He submitted that
even after the court of Sessions Passed the order, the copies
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Cril.Appln.No.1898/07.
4
were not supplied. Here, it has to be borne in mind that it is the
duty of the prosecution to supply the copy and the blame cannot
be put at the door of the court. The learned counsel for the
prosecution, on the other hand, submitted that the grievance is
unjustified. He submitted that firstly the court had passed an
order on Exh.26 to supply the copies on 8/5/2006. There was,
therefore, already an order and unnecessarily second application
for supply of the copies was made. It is apparent from the
pleadings of the applicant in this petition that the court had
already passed an order for supply of the copies long back when
the second application was rejected. Further it may be
mentioned that the charge-sheet was supplied to the accused in
the year 1999 and right from 1999 to 2006, the applicant did not
make any grievance that the copies were not legible.
8. The next grievance made is in respect of issue of non-
bailable warrant against the applicant/accused. He submitted
that unnecessarily warrant was issued against the applicant and
this further shows the prejudice in the mind of the court. Shri
Joshi, learned counsel, submitted that on the date the warrant
was issued, neither the lawyer nor the accused was present and
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5
court was, therefore, justified in issuing the warrant. The record
shows neither of them was present before the court and court
was left with no other alternative but to issue a warrant. In no
case, therefore, the order can be faulted with. In fact, it appears
that the court had issued a warrant because the accused had left
the country without seeking permission of the court. It is in that
context, the order refusing to cancel the warrant was passed and
such a judicial order could not be in fact a ground to make any
grievance against a judge to show that he is prejudiced.
9. Mr.Khirsagar, learned counsel, then contended that the
accused wanted justice Kazi's report to be placed before court
and six weeks' time was sought and that application dated
2/2/2007 was arbitrarily rejected. The order shows that the
application was not rejected as is contended but a short
adjournment was granted. It also appears that after filing this
application neither the accused nor the counsel was present. Mr.
Kshirsagar sought to make capital out of order on application for
adjournment dated 5/6/2007. The accused states in this
application that she has lost all hopes of getting fair justice and
again sought six weeks' time. It appears that on 2/2/2007, six
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6
weeks' time was sought and matter was not heard till 5/6/2007
i.e. for almost three months. In any case, therefore, on 5/6/2007
the accused did get more than six weeks time to file a report. It
was not filed and yet the allegations were made against the
judge that accused would not get justice. Therefore, the
grievance as put by Mr.Kshirsagar carries no weight and shows
attitude of the accused to anyhow stall the matter. It seems
from the record the petition itself and the reply filed by the
prosecution that right from 2006 and even prior to that the only
attitude of accused was to stall the proceedings on one or the
other ground. It appears to me that the judge had acted fairly.
The accused had applied for permanent exemption and it was
granted by the court on the same day. Even an application for
permission to leave the country was also granted on the same
day by the learned judge. Now, had the judge had any kind of
grudge against the accused, he would not have granted both the
applications without any hesitation. Insistence of the judge to
hear the matter in no case can be treated as showing any
unfairness. Not only these two applications were granted
without hesitation but even on other occasion time was granted
though not as much as was sought by the accused. It appears
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Cril.Appln.No.1898/07.
7
that the accused is in England and it is difficult for her to come
back and that appears to be the reason why there is an attempt
to protract the proceedings. Mr.Khirsagar has relied on a
decision of the Supreme Court reported in 2004(4) SCC 158
(Zahira Habibulla H.Sk. and another ..vs.. State of Gujarat and
others). The facts of the reported case and this case cannot at
all be compared. In the reported case, the matter was
transferred out of the State itself because it was found that
atmosphere in the State was not conducive for the trial of the
case in that State. All the same, the court did look into the fact
that the apprehension was reasonable or not. The court had also
observed that the state of mind of the person who entertains the
apprehension no doubt is a material factor but not the only
determinative or concluding factor. Obviously, mere
apprehension is not enough. Mr.Kshirsagar had also relied on a
decision of Supreme Court in 2 000(7) SCC 129 (R.Balkrishna
Pillai ..vs.. State of Kerala). Almost similar are the observations
of the Supreme Court which I quote here -
“The petitioner's second contention also deserves to
be rejected. It is true that one of the principles of
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Cril.Appln.No.1898/07.
8
the administration of justice is that justice should not
only be done but it should be seen to have been
done. However, a mere allegation that there is
apprehension that justice will not be done in a given
case is not sufficient. Before transferring the case,
the court has to find out whether the apprehension
appears to be reasonable. To judge the
reasonableness of the apprehension, the state of
mind of the person who entertains the apprehension
is no doubt relevant but that is not all. The
apprehension must appears to the court to be
reasonable, genuine and justifiable. In the present-
day scenario, if these types of applications are
entertained, the entire judicial atmosphere would be
polluted with such frivolous petitions for various
reasons.”
Yet another decision of the Supreme Court reported in
2004(8) SCC 788 (M.P.Special Police Establishment ..vs.. State of
M.P. and others) placed before me to show what is meant by
bias. In the case at hand, I do not think that there is anything to
suggest that the approach of the judge is biased. He has been
acting fairly. The matter is being adjourned on the one or the
other count right from 2006. It is a part-heard matter. He had
granted permanent exemption and permission to leave the
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Cril.Appln.No.1898/07.
9
country without hesitation. Simply because a few orders are
adverse, an inference of bias cannot be drawn. It would be
inappropriate on the part of higher courts to transfer the cases
from one court to another on the ground that a few adverse
orders are passed against the party. If that is done, perhaps no
judge would ever be able to finally dispose off any case. The
learned Sessions Judge has rightly rejected the application. I too
find that there is no ground to transfer the case at all. The
application is rejected.
The learned counsel for the applicant contended that
the proceedings before the trial court be continued to be stayed
for period of six weeks to enable the party to approach the
Supreme Court. The trial court shall not proceed with the trial
for another four weeks.
JUDGE
chute
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