Madan Tiwary v. Takia P.S.Rampur

Heard Mr. Prasoon Sinha, learned Government Advocate No.3 for the State of Bihar, Mr.A.B. Ojha for the informant, Ms.Sushmita Mishra - 2 - for opposite party no.1, Mr.Rana Pratap Singh for opposite party nos.2,3 & 5, and Mr.Rashid Izhar for opposite party no.6. None appears for opposite party no.4 in spite of valid service of notice. It relates to transfer of Sessions Trial No.28 of 2006, and Sessions Trial No.283 of 2006, pending in the Court of learned Fast Track Court-II Gaya, to another Sessions Division, for a fair trial, along with consequential orders.

2. We may briefly indicate circumstances in which the matter comes up before us. Both the trials arise out of a common occurrence, namely, Gaya Civil Lines P.S.Case No.303 of 2003, dated 21.11.2003, under sections 302 and 120(B)/34 of the Indian Penal Code, wherein the informant (Most. Raj Kumari Devi ) levelled allegations against accused persons for the murder of her young, married son. The alleged occurrence is said to have

21.11.2003. Investigation commenced. It appears that she submitted protest petition dated 5.12.2003, before the learned Chief - 3 - Judicial Magistrate, Gaya, alleging therein that the police was in collusion with the accused persons, who are local, powerful land mafia, resulting in unfair investigation, but no order was passed by the learned Chief Judicial Magistrate. Charge sheet dated

15.2.2004 (Annexure-3 the show cause of respondent nos.2,3 & 5), was submitted under section 302 and other sections of the Indian Penal Code only against some of the accused persons, who are opposite parties herein. Cognizance was, however, taken against all the five accused persons under these sections on 23.2.2004. This was followed by a supplementary charge sheet dated 16.1.2006 (Annexure-5 the said show-cause), whereby opposite party no.6 herein was also sent up for trial. Cognizance was taken against him under the same sections.

3. Trial concluded and was reserved for judgment. While the judgment was so pending, this Court on the administrative side received complaint dated 24.4.2007, addressed to the Hon’ble Inspecting - 4 - Judge of the Gaya Sessions Divisions, submitted by the informant, alleging therein collusion between the accused persons, the investigating agency, and Vijay Kant Jha, the learned Presiding Officer of Fast Track Court-II, Gaya. The Hon’ble the Chief Justice requested the learned Inspecting Judge of the Gaya Sessions Division to enquire into the matter. He submitted his report dated 14.5.2007, whereby he recommended that appropriate action should be taken against the Fast Tack Court II, Gaya, presided by Shri Vijay Kant Jha, and at the same time the case must be shifted to another District with a direction to hold De Novo trial.

4. The report dated 14.5.2007, submitted by the learned Inspecting Judge, was considered by the Hon’ble the Chief Justice. The matter was placed before the Standing Committee of this Court which, its resolution dated 13.3.2008, placed concerned Judicial Officer under suspension and he has been subjected to disciplinary proceeding. It was further resolved that the report of the learned - 5 - Inspecting Judge be taken up on the judicial side in the present Cr.Misc. No.13705 of 2008. The High Court on the administrative side is thus seized of the matter in so far as the alleged misconduct of the Judicial Officer is concerned, and is beyond the scope of our consideration. We shall confine ourselves to two questions, namely, whether or not the trial has to be transferred to a different Sessions Division, and whether or not the trial should be conducted De Novo.

5. We have perused the materials on record and heard learned counsel for the parties at length. The lower court records are also before us. The learned Inspecting Judge has found a clear collusion between the Judicial Officer and the accused persons and has indicated circumstances to show that he(Judicial Officer) was helping the accused persons in every possible manner. The learned Inspecting Judge has also indicated circumstances to show that the Judicial Officer was recording the evidence incorrectly with motive of - 6 - helping the accused persons. He has, inter alia, noted that the name of the shooter was differently recorded ensuring acquittal of the accused persons. Secondly, there are circumstances on record to suggest that the accused persons are locally powerful persons, and have been able to influence the investigating agency as well as the Court. It is indeed unfortunate that, stating prima facie on the basis of the preliminary enquiry report, that the learned trial court committed gross error in getting into collusion with the accused persons and tilting the scales of justice in favour of accused persons in such a blatant manner. The informant is a hapless widow who has lost her young, married son in the alleged occurrence. The trial of the sessions case has, therefore, to be transferred to a different Sessions Division.

6. The next question which arises for consideration is as to from which stage the trial shall commence. The learned Inspecting Judge in his report has observed as follows: “I think the matter is such that appropriate steps should be taken against the - 7 - Fast Track Court II, Gaya, presided by Shri Vijay Kant Jha, and at the same time the case must be shifted to another District with a direction to hold de novo trial upon disposal of the said protest petition.” He has further observed that the learned trial court was interpolating with the order sheet and causing changes in the deposition(s) to ensure acquittal of the accused persons. We are, therefore, of the view that the trial must commence De Novo, otherwise it will result in miscarriage of justice.

7. Another matter which needs consideration in the same vein is the treatment to be meted out to the said protest petition dated

5.12.2003, submitted by the informant before the learned Chief Judicial Magistrate. The same was filed during the course of investigation and the allegations were against the investigating agency in conducting investigation in a most partial manner, tilting the balance in favour of the accused persons because they are powerful, local land Mafia, and are out to grab the property of the informant’s side. Indeed learned Government - 8 - Advocate as well as the learned counsel for the informant submitted in one voice though unfortunately protest petition remained unattended, the investigation was completed and charge sheet dated 15.2.2004 was submitted against the two accused persons, and the learned Chief Judicial Magistrate disagreed with the same in the sense that he took cognizance of the offences against three more persons (thus against all accused named in the FIR) over and above the charge- sheeted persons. Furthermore, a supplementary charge sheet was submitted on 16.1.2006, against opposite party no.6 herein, and cognizance of the offences has been taken against him. Therefore, we are of the view that the said protest petition dated

5.12.2003 has, in one sense, become infructuous. Therefore, in view of the subsequent developments, and in the interest of justice, the learned trial court may not be required to deal with the same on merits. The same shall form part of the records and it will be open to the learned trial court to draw appropriate - 9 - inference in accordance with law at the appropriate stage.

8. The next question which arises for consideration is the place where the sessions trial has to take place. The Sessions Divisions of Nawada, Biharsharif, Aurangabad, and Patna are distance-wise fairly near to Gaya. It prima facie appears that the accused persons are powerful persons, with a rural background, are locally fairly entrenched, and are land Mafia. It is, therefore, in the fitness of things that the sessions trial should be shifted to a place which has no rural background. The three Sessions Divisions of Nawada, Aurangabad, and Biharsharif have basically rural background. Patna is the capital of the State. It is expected that it will be free from the influence of the accused persons. It is, therefore, in the fitness of things that the sessions trial be shifted to Sessions Division of Patna.

9. In the result, we dispose of this application with the following directions: - 10 - (i) Both the Sessions Trials shall be transferred to the Sessions Divisions of Patna. The learned Sessions Judge, Patna, shall ensure that the trial is conducted either by himself, or by a regular court of Addl. District and Sessions Judge in Patna to be nominated by him (ii) The entire proceedings of the learned trial court including the depositions in both the Sessions Trials hereby are wiped out. (iii) The orders framing charge(s) shall remain intact and the learned trial court in Patna shall commence from the stage of section 230 Cr.P.C. (iv) The said protest petition dated

5.12.2003, submitted by the informant to the learned Chief Judicial Magistrate, Gaya, need not be disposed of on merits. It goes without saying that it shall be open to the learned trial court to draw appropriate inference in accordance with law at the appropriate stage.

10. The accused persons are represented - 11 - here through their counsel and shall appear before the learned Sessions Judge, Patna, on 18.5.2009, and for which purpose separate notice from the learned trial court shall not be necessary. The learned trial court shall guard itself against unreasonable adjournments. Let the learned trial court endeavour to conclude the trial within a period of six months thereafter.

11. Let the lower court records be sent to the learned District and Sessions Judge, Patna, along with a copy of the present order, as per special messenger at the cost of the Court. ( S. K. Katriar ) ( Kishore K. Mandal )