Sri Puduri Jithender Reddy & Ors. v. Section 4 read with 25 of Arms Act

Order

The petitioners are A-2 to A-5 and A-7 to A-9 in S.C.No.403 of 2008 on the file of the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar. They are facing trial before the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar for the offences under Sections 341, 302, 307, 120-B read with Section 34 IPC and Section 4 read with 25 of Arms Act.

2. The petitioners moved petition before this Court under Section 407 Cr.P.C seeking transfer of S.C.No.403 of 2008 from the file of Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar to any other Court in Metropolitan Criminal Courts at Hyderabad or Medak District. The grounds urged for transfer of S.C.No.403 of 2008, as could be seen from the affidavit filed in support of the petition are:-

Firstly; they are apprehensive of not getting fair trial before the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar presided over by Sri I.Ramesh. Secondly; they have threat from the relations of the deceased Jagadishwar Reddy. Petitioner No.1 (A-2) has sworn to the affidavit filed in support of the petition. For better appreciation, I may refer paragraphs 5 to 8 of the affidavit filed in support of the petition and they are:- “5. I submit that the deceased being a very powerful person in the Society as also having a large following, we have been threatened by his relatives and by his followers ever since the day of the incident. On the very first day of our appearance in the court after the matter is committed to the Sessions Court i.e., on 01-08-2008 when we appeared in the Court we found nearly 100 to 150 people in the Court all belonging to the group of deceased M.Jagadishwar Reddy and his brother M.Praveen Reddy. When myself and other Accused used to pass them they used to threaten us that they will kill all of us and they will not allow the matter to go to trial and see our end outside the Court. The same incident again happened on the next dates of hearing i.e., on 24-10-2008, 10-08-2010 and again on 10-03-2011. On all these occasions I have been constrained to give complaint to the Uppal Police Station the copies of which are hereby annexed herewith as Documents, which clearly show that we had been threatened in the premises to be killed by the relatives of the deceased. 6. I submit that it would thus be very clear that our life is at risk if the trial is conducted in Ranga Reddy District as at any moment any of the relatives of the deceased who are bearing a hatred in us could take the law into their hands and try to eliminate us. I submit that there is no sufficient police people in the court to protect us and we would be at the mercy of the relatives and followers of the deceased who are hell bent on seeing our end. I submit that these are the reasons for seeking transfer of the case outside the division of the Ranga Reddy as there is a serious threat to our lives. 7. I further submit that I am also seeking transfer of the case from the Court of the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District since the Presiding Officer of the said Court is totally behaving in a biased and one sided manner in favour of the prosecution and the deceased and totally against all the accused persons. Number of incidents have occurred which have made believe that I will not get a fair and justifiable trial at the hands of the present Presiding Officer, Sri I.Ramesh. 8. I submit that whenever we entered into the Court, the Presiding Officer of the said Court behaves with us in an extremely abusive manner and treat us as though we are not human beings. I submit that on one occasion when the matter was listed for our appearance on 02.5.2011 after charges have been framed and matter had been listed for giving the schedule for the trial, Accused Nos.4, 5, 7 and 8 i.e., the petitioners No.3 to 6 herein reached the Court about 15 minutes late due to the traffic problem, their Advocate on behalf of them requested the Court to kindly pass over the matter for ten minutes since the accused are on the way and held up in traffic jam. But without considering the request made by the counsels, the learned Presiding Officer issued Non Bailable Warrants and adjourned the matter and within 10 minutes thereof the accused came to the Court and Sri Challa Narasimha Reddy, Senior counsel appearing for the Accused No.4,5,7 and 8 moved an application vide Crl.M.P.No.124 of 2011 seeking recall of the Non Bailable Warrants. I.Ramesh dismissed the said application and remanded the Accused No.4,5,7 and 8 to judicial custody with a single line order “No grounds, Hence dismissed”. Immediately on the same day the counsel for the Accused No.4, 5, 7 and 8 moved the petition for grant of bail which was also dismissed on 09.5.2011 with the following finding: learned Judge, Surprisingly “It manifest the Accused with a view to prevent issuing of schedule of trial abstained from court if bail is granted there is every possibility of they abstaining from the court making the case pending without any progress”. Due to dismissal of the said bail petition, the said accused were continued to be in custody for a period of 11 days without any fault of them”.

3. This Court, by order dated 22-11-2011 called for the remarks from the Presiding Officer, Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District. Sri I.Ramesh, Presiding Officer, Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar has submitted his remarks, vide Lr.Dis.No.668/2012, Dated 27-02-2011.

4. Heard Sri N.Subba Reddy, learned counsel representing Sri Gone Madhusudhan Reddy, learned counsel appearing for the petitioners, learned Additional Public Prosecutor appearing for the 1st respondent-State and Sri T.Pradyumna Kumar Reddy, learned counsel appearing for the 2nd respondent (LW-3).

5. Sri N.Subba Reddy, learned counsel submitted that it is a settled principle that justice should not only be done but also seen as done and in view of the fact that the learned Presiding Officer of the Additional Metropolitan Sessions Judge Court dismissed application filed by some of the accused to recall N.B.W, though sufficient reason was offered and they appeared before the Court within few hours of issuance of N.B.W., and dismissal of the application was without offering any reasons, there would be reasonable apprehension in the mind of the petitioners that Presiding Officer may be biased in favour of the prosecution and therefore, peculiar circumstances of the case warrant that in the interest of justice, the trial should be shifted to any other Court in Metropolitan Criminal Courts at Hyderabad or in Medak District. Learned counsel laid much emphasis on the order passed by the Presiding Officer on an application filed under Section 70(2) Cr.P.C., by A-4, A-5, A-7 and A-8. Learned counsel would also contend that a criminal trial which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free from fair the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. It is nextly contended by learned counsel the petitioners are apprehensive of danger in the hands of the relatives of the deceased and indeed number of representations have been submitted to the SHO, Uppal P.S., in the year 2008 and 2011. On these grounds, transfer of S.C.No.403 of 2008 has been sought for from the file of the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar to any other Court at Metropolitan Criminal Courts or in Medak District. In support of his submissions, reliance has been placed on the decision of Supreme Court in Abdul Nazar Madani v. State of [1] a n d Nahar Singh Yadav v. Union of India [2] . I n Abdul T.N Nazar’s case (1 supra), the Supreme Court held that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any Court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conductive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of facts of each case. In Nahar Singh’s case (2nd supra), the Supreme Court held as follows:- “ A criminal trial is a judicial examination of evidence with the object of punishing the offenders on a proper proof of relevant facts, the core question being the guilt or innocence of the accused. Hence, a criminal trial, which may result in depriving a person of not only is personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 Cr.P.C empowers the Supreme Court to transfer any case or appeal to meet the ends of justice”.

6. Perused the remarks submitted by the learned Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar. As could be seen from the remarks, A-1-Yamjala Sridhar Reddy filed Criminal Petition No.1228 of 2009 to quash the proceeding in S.C.No.403 of 2008 and obtained interim stay for a limited period. Subsequently, stay was not extended by this Court. Charges came to be framed on 10-3-2011. The case was posted to 02-05-2011 for fixing the schedule on which date, A-2, A-4, A-5, A-7 and A-8 failed to be present when the case was called. An application was filed on behalf of A-2 to dispense with his appearance and his application was allowed. Whereas, no application was moved on behalf of A-4, A-5, A-7 and A-

8. Therefore, N.B.W came to be issued against them. A-4, A-5, A-7 and A-8 appeared before the learned Sessions Judge after issuance of N.B.W and moved petition under Section 70(2) Cr.P.C. to recall the N.B.W. The learned Additional Sessions Judge dismissed the application and remanded them to judicial custody. Later, they moved bail application and the said application being Crl.M.P.No.110 of 2011 came to be dismissed on 09-11-2011. The learned Additional Sessions Judge issued schedule on 11-5-2011 for trial of the case commencing from 20-6-2011. Thereafter, the learned Additional Sessions Judge considered the bail application of A-4, A-5, A-7, A-8 and granted bail to them. The trial was to commence on 20-6-2011. While so, A-3 changed his counsel and moved Crl.M.P.No.140 of 2011 for cancellation of trial schedule. The learned Additional Sessions Judge dismissed Crl.M.P.No.140 of 2011, by order dated 13-6-2011. Assailing the order, A-3 fled Criminal Petition being Crl.P.No.4833 of 2011 before this Court. Initially, interim stay of trial came to be granted by this Court on deposit of Rs.3,000/- towards witness expenditure. Subsequently, Crl.P.No.4833 of 2011 came to be dismissed as withdrawn on 11-7-2011. The learned Additional Sessions Judge issued fresh schedule on 15-7-2011 commencing from 23-8-2011. Trial could not be commenced as the entire material part of the record was stated to be misplaced. The learned Additional Sessions Judge after obtaining permission from the Principal District Judge, Ranga Reddy District reconstructed the file and issued trial schedule on 01- 11-2011 commencing from 28-11-2011. Thereafter, the petitioners, who have been arrayed as A-2 to A-5 and A-7 and A-9 approached this Court by filing this Transfer Criminal Petition seeking transfer of S.C.No.403 of 2008 from the file of Additional Metropolitan Sessions Judge to any other court in Metropolitan Criminal Courts at Hyderabad or in Medak District.

7. The sequence of events stated supra indicates that trial schedule came to be fixed thrice after dismissal of the application filed by the petitioners to recall N.B.W. Indeed, one of the petitioners, i.e., petitioner No.2-Pothagoni Balaraj Goud who has been arrayed as A-3, approached this Court by filing Crl.P.No.4833 of 2011 assailing the order dated 13-06-2010 passed in Crl.M.P.No.140 of 2011 and subsequently, withdrew the said petition. With these background facts can it be said that the apprehension of the petitioners that they may not get fair trial is based on any sound reasons. In my considered view, their apprehension is not based on any material and it is purely illusory and only to drag on the proceeding. Had there been any apprehension in the mind of the petitioners of their not getting fair trial, consequent on dismissal of their recall petition on 02-5-2011, they would have approached this Court even before fixing the schedule for trial on 11-5-2011. Since all the efforts made by the petitioners to drag on the proceedings have been proved futile, as a last resort, they have chosen to file this Transfer Criminal Petition, which cannot be appreciated. The Transfer Criminal petition is devoid of merits and it is liable to be dismissed.

8. Accordingly, the Transfer Criminal Petition is dismissed. As a sequel, interim order granted by this Court in this petition on 22-11- 2011 shall stand vacated. Dt.10-04-2012 RAR _____________________ B.SESHASAYANA REDDY, J [1] [2] (2000) 6 Supreme Court Cases 204 (2011)1 Supreme Court Cases 307