Delhi High Court
Lt. Col. (Retd.) S.J. Chaudhri vs State on 24 July, 2006
Equivalent citations: 131(2006)DLT376
Author: Reva Khetrapal
Bench: Mukundakam Sharma, Reva Khetrapal
JUDGMENT
Reva Khetrapal, J.
1. By this petition under Section 407 read with Section 482 of the Code of Criminal Procedure, the petitioner seeks transfer of case bearing RC No. 3/83 under Section 302 of the Indian Penal Code, popularly known as “Sikand Murder Case” from the court of Ms.Mamta Sehgal, Additional Sessions Judge, Tis Hazari, Delhi to the court of Sh.S.P. Garg, Additional Sessions Judge, Patiala House Courts, New Delhi.
2. Shorn of details the facts are as follows. The petitioner Lt.Col.S.J. Chaudhri is the main accused in the “Sikand Murder Case”, who is alleged to have murdered one Mr.Krishan Sikand on 2.10.82 in his flat at 98, Sunder Nagar, New Delhi by way of a parcel bomb resulting in the registration of a case against him under Section 302 IPC and Sections 3, 4 and 6 of the Explosive Substances Act bearing case No. RC-3/83. The said case was pending in the court of Ms.Mamta Sehgal, Additional Sessions Judge posted at Patiala House Courts, New Delhi and remained pending in her court till the issuance of posting/transfer orders passed by the High Court on 3rd January, 2006 whereby and whereunder Ms.Mamta Sehgal was transferred from Patiala House Courts to Tis Hazari Courts as Land Acquisition Court, apart from being Special Court for the trial of the “Uphar Tragedy Case”. Consequent to her transfer and the posting of Sh.S.P. Garg, Additional Sessions Judge in Patiala House Courts in her place, the “Sikand Murder Case” along with other criminal cases was placed under the charge of Sh.S.P. Garg, Additional Sessions Judge. Thereupon, a mercy petition was filed by the unfortunate father of the deceased Krishan Sikand that the case be not transferred to a new court as Smt.Mamta Sehgal had not only recorded the evidence of the prosecution as well as of the defense, but the prosecution had already concluded its arguments and the defense had also advanced substantial arguments. The petitioner pointed out that he was 94 years of age and had been vigorously pursuing the case for the last 25 years in a quest for justice, and prayed the case be re-transferred to the court of Smt.Mamta Sehgal, where it was reaching its logical conclusion.
4. A note was put up by the Joint Registrar (Gazette) on the above mercy petition on 16.1.2006, which was approved by the then Chief Justice (Hon’ble Mr.Justice Markandeya Katju), which reads as follows:
The case (Masand Murder Case) was being tried by Ms.Mamta Sehgal, the then Additional Sessions Judge, Patiala House Court complex. Pursuant to the orders passed by the Administrative Committee dated 3rd January, 2006, Ms.Mamta Sehgal has been transferred from Patiala House, and posted as Additional District Judge in Tis Hazari Court complex, and in her place Mr.S.P. Garg, has been posted.
The said case was at the stage of arguments in the court of Ms.Mamta Sehgal. It may also be stated that one of the relations of the victim is a senior citizen, being above 90 years.
It would be, therefore, in the fitness of things if the said case is ordered to be transferred to the court of Ms.Mamta Sehgal, posted as Additional District Judge, Tis Hazari, and she may be requested to expedite the trial of the case expeditiously.
Submitted for orders.
5. Pursuant to the approval of the note of the Registry by the then Chief Justice, the case was ordered to be sent back to the court of Ms.Mamta Sehgal, Additional Sessions judge. It is this order passed by the Hon’ble Chief Justice on the administrative side which is under challenge in this petition.
6. In the course of arguments, the principal ground for assailing the order under challenge was that Section 407 of Code of Criminal Procedure circumscribes the power of the High Court to transfer criminal cases and appeals and the same contemplates issuance of notice to the accused. In this context, counsel for the petitioner placed reliance upon the decision of the Supreme Court in Nirmal Singh v. State (1996) 6 SCC 126, wherein the Supreme Court held that suo motu transfer of a case from a Sessions Judge of one district to another district without affording an opportunity of hearing to the accused is not permissible. Reliance was also placed by the petitioner on the judgment of a Division Bench of this Court in Diwakar and Ors. v. The State 2001 (2) JCC Delhi 217 wherein it was held that where the main ground of transfer is that the entire evidence has been recorded by the earlier Additional Sessions Judge, the same cannot be sustained in view of the fact that the successor Judge stands empowered in view of the provisions of Section 326 of the Code of Criminal Procedure to try the case on the evidence recorded by his predecessor.
7. Having carefully considered both the aforesaid decisions, we are of the view that neither of these decisions relied upon by the petitioner’s counsel in any manner furthers the case of the petitioner for the reason that the order of transfer challenged by the petitioner in the instant case ex-facie is not a judicial order passed under Section 407 of the Code of Criminal Procedure, but is an administrative order passed on the administrative side by the Chief Justice of the concerned High Court. We are also constrained to observe that strictly speaking, this is not a case of transfer simplicitor from one Sessions Judge to another, but a case where arguments stand more or less concluded in the court of a particular Sessions Judge and the Chief Justice on the administrative side has deemed it expedient, for the ends of justice, to order that the Sessions Judge who has heard the arguments in extenso pronounce judgment in the case.
8. We say so on the basis of the records which have been scrutinized by us, and on such scrutiny it was found by us that arguments in the case had been heard by Ms.Mamta Sehgal, Additional Sessions Judge on more than thirty different dates, i.e. on 27.10.2004, 1.11.2004, 14.12.2004, 15.12.2004, 16.12.2004, 31.1.2005, 1.2.2005, 18.2.2005, 24.2.2005, 28.2.2005, 1.3.2005, 10.3.2005, 17.3.2005, 22.3.2005, 23.3.2005, 19.4.2005, 21.4.2005, 25.4.2005, 8.7.2005, 22.7.2005, 26.7.2005, 27.7.2005, 9.8.2005, 24.8.2005, 25.8.2005, 20.9.2005, 21.9.2005, 28.9.2005, 31.10.2005, 9.11.2005 and 18.11.2005. To say that arguments had been more or less completed cannot, in such circumstances, be stated to be incorrect. This being the position and the complainant (father of the deceased) being over 90 years of age, in our considered opinion, it cannot be said that the orders passed by the Hon’ble Chief Justice on the administrative side were uncalled for or in any manner prejudicial to the petitioner/accused.
8. In Ranbir Yadav v. State of Bihar , the High Court had exercised the power of transfer on the petition filed by the accused from jail, inter alia, complaining that they could not be accommodated in the court room as a result of which some of them had to remain outside. This order was challenged before the Supreme Court on the ground that administrative power could not be exercised when judicial power was not only available and operational, but was equally effective and efficacious. The Supreme Court held that so long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceedings, it could not be said that administrative powers must yield to judicial powers simply because they happened to co-exist in a given case.
9. Applying the ratio of the decision in Ranbir Yadav’s Case (supra), it cannot be said that the exercise of administrative power in the instant case by the head of the High Court was not supported by any good or cogent reason or that the same was vexatious to the accused in any manner. Here is a case where the father of the deceased has been in pursuit of justice for the last 23 years. He is over 94 years of age and has yet to come to terms with his son’s brutal murder. Arguments have been heard at length on over 30 dates by a Sessions Judge with whom the case has been pending for the last over 5 years. Yet the course of justice is sought to be obstructed by the present transfer petition praying for re-transfer of the case to a Sessions Judge who will have to hear arguments from the scratch. Should such a prayer be entertained at the behest of the accused? We are of the considered view that the answer to this must be in the negative, for, in our view, any exercise of powers as contained under Sections 407 and 482 of the Code of Criminal Procedure for the aforesaid purpose would not only further delay the disposal of the case, which has been pending already for over 23 years, but would cause untold hardship to the complainant, apart from the fact that the State through the CBI would have to de novo argue the matter.
9. Before parting with the order, we deem it expedient to refer to the contention of the petitioner that fair and impartial justice will not be done to him if the matter is heard and decided by Ms.Mamta Sehgal. To say the least, we find no reason for such an apprehension on the part of the petitioner. Merely for the petitioner to allege that he will not get impartial justice, to our mind, is wholly insufficient. The question really is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. It is not any and every apprehension in the mind of the accused that can be termed as reasonable apprehension. Apprehension must not only be entertained, but must also appear to the court to be reasonable and justified by facts and circumstances. Facts and circumstances are otherwise. The petitioner did not entertain any apprehension from the year 2001 when the matter was posted with Ms.Mamta Sehgal, Additional Sessions Judge till the year 2006 when her posting was changed. But now all of a sudden he expresses apprehension that the learned Additional Sessions Judge may not render impartial justice. Can his apprehension be termed a reasonable one? In the attendant circumstances and in view of the fact that no case of any real bias has been made out by him, the answer to this question must be in the negative. It cannot be also lost sight of that though assurance of a fair trial is the final imperative of the dispensation of justice, hyper sensitivity cannot be allowed to impede the course of justice to such an extent that the resultant delay results in failure of justice. Also, normally the complainant has a right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried.
10. For the aforesaid reasons, we find no merit in this transfer petition. The same is accordingly dismissed leaving the parties to bear their own cost. Records be sent to the court of Ms.Mamta Sehgal with a direction to decide the case as expeditiously as possible and latest within a period of four months from today.