Rupam Pathak v. The State Of Bihar

the then MLA of the locality Raj Kishore Keshri (since murdered) as well as Bipin Baitha for an offence punishable under Section 376/34 of the IPC wherein the police submitted final report. However, having the protest on the record, after acceptance of the same the protest was treated as compliant petition which proceeded with an inquiry under Section 202 of the Cr.P.C. culminating in summoning of Opposite Party No.2 for the offence of rape and as submitted, the case has been Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 2 committed and is presently pending before the court of Session bearing Sessions Trial No.446 of 2012. Petitioner /complainant has prayed for transfer of the aforesaid Sessions Trial No.446 of 2012 from Purnea to Patna on the following plea: a. That she was tried for murder of accused Raj Kishore Keshri at Patna and was convicted. b. The wife of Late Raj Kishore Keshri happens to be the local MLA and on account of her influence at local level she along with her witness who all are ladies are apprehending untoward incident at their level in case their presence happens to be at Purnea. c. She had already left Purnea and is residing with her husband in the State of Manipur. So, in the aforesaid background it has submitted that she will not be in a position to produce the witnesses including her self for evidence. As such, to avoid such unisonant atmosphere, it looks desirable that transfer of above referred Sessions Trial No.446 of 2012 be directed. Learned counsel for the petitioner also relied upon (2004) 4 SCC 158, 2008(1) PLJR 93. At the other hand, the learned lawyer for Opposite Party No.2 submitted that had their been any sort of ill motive at the part of Opposite Party No.2, he along with others so alleged by the petitioner, would not have allowed the witnesses to make statement during course Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 3 of an inquiry under Section 202 of Cr.P.C. that too, while the petitioner / complainant was under custody. It has further been submitted that there happens to be no connecting document or paper with regard to the allegation rather it happens to be own illusion of the petitioner to justify her prayer for transfer of the case. It has further been submitted that for the purpose of transfer of the case, not only the satisfaction of complainant /petitioner has to be taken into consideration rather the presence of witnesses, smooth sailing of the trial, the interest of the accused is also to be taken into account. When there happens to be no adverse remark by the complainant herself during the intervening period then how one could come to the conclusion that something wrong is being expected at the hands of accused. Moreover, there happens to be full competence of the petitioner in case, she found anything adverse to pray before the court for providing security during continuance of trial. It has also been submitted that present petition happens to be a novel method adopted by petitioner to linger the proceeding. Three years have elapsed without having any witness produce at the end of petitioner / complainant which could have at least supported the apprehension, or action that they were ever threatened by the Opposite Party No.2 during course of their deposition before the court. Not only this, such illegal action, if so reported, will deprive the Opposite Party No.2 to enjoy the privilege of the bail. The court will be under full competency to pass appropriate order in case there happens to be any sort of allegation against the Opposite Party No.2 during Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 4 course of conduction of trial. It has also been submitted that petitioner / complainant has wrongly placed before the court that she is residing along with her husband at Manipur and for that attention has been drawn towards the address shown under the petition as Rupam Pathak, W/O Ashok Pathak, resident of Rajhans Public School, Sipahi Tola, P.S- K.Hat, District- Purnea. It has also been submitted that it has not pleaded either in the original petition or in the rejoinder to the counter affidavit that she is residing along with her husband within the Manipur State. Therefore, mere assertion without having support from any corner, ousts it of consideration. It has also been submitted that the purpose of filing of the petition is itself clear. The petition was filed while the petitioner was in custody, as is evident from petition itself and the trial was going on within jurisdiction of Patna Judgeship but now situation has changed on being convicted, an appeal is pending before the High Court, wherein petitioner had already been let off on bail. Therefore, there appears no question of preference. The learned Additional P.P. endorsed the view. Before dwelling the issue, it looks wise to look Section 407 of the Cr.P.C. which enables the High Court to transfer the case from one judgeship to another.

407. Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Court— a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or b) that some question of law of unusual difficulty is likely to arise; or c) that an order under this section is required by any provision of this Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 5 Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order— (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (ii) that any particular case be committed for trial of to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one criminal Court to another criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court’s power of remand under section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197. Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 6 On bare perusal of the Section itself, it is evident that three criteria have been identified for the purpose of justifying the order of transfer. The first one happens to be with regard to presence of such kind of hindrance which would have adverse impact upon fair inquiry or trial, the second aspect happens to be on account of presence of unusual question of law and the last one is with regard to convenience of the parties, witnesses as well as in the ends of justice. It is admitted one that the present legacy has been inherited by the court of sessions on the basis of the cognizance taken by the learned Magistrate after conduction of an inquiry under Section 202 of the Cr.P.C. during curse of which witnesses were examined. There is no complaint made on behalf of petitioner that at that very occasion witnesses had ever perceived threat, compulsion, coercion and allurement from any corner including at the end of the Opposite Party No.2. At that very time, the petitioner was under custody, she was availing proper security but none of the witnesses were enjoying such status nor were taken cared of by any police official. They have got their presence at their own level without any apprehension. Since thereafter, nothing is on the record which could justify the prayer of the petitioner that actually she had faced any kind of unfamiliar situation and in absence thereof, it would be very unsafe to perceive unforeseen event a cause to put hurdle in smooth, free and fair trial. Apart from this, both the parties belong to Purnea, place of occurrence is within Purnea, the witnesses are of Purnea, which could also be taken note of. Patna High Court Cr.Misc. No.34579 of 2012 (7) dt.09-07-2013 7 The decision referred on behalf of petitioner as reported in (2004) 4 SCC 158 popularly known as “Best Bakery Case”, is not found applicable as the facts of the case itself exposes dark picturisation and further step taken by the persons concerned including the Jahira Sheikh by filing several petitions including before Human Right Commission that how they were gained over during court of conduction of trial as well as failure at the end of the government machinery in getting the fair trial leading to acquittal. That happens to be unusual case attracting special case and in the above background transfer was made to other State. So far 2008(1) PLJR also concerned, it is also not found applicable. As such, I do not see that petitioner has got any justification with her prayer at the present moment. On account thereof, the prayer is rejected. However, petitioner will be at liberty to pray in case the circumstance so warrants in future. (Aditya Kumar Trivedi, J) PN/-