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wp1771.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 981 CRIMINAL WRIT PETITION NO. 1771 OF 2023Dilipsinh Gopalsinh Thakur And OthersVERSUSThe State of Maharashtra...Advocates for the petitioners : Ms. Rashmi Gour with Mr. A.S. Bayas,S.R. Mantri and Mr. S.S. GangakhedkarAPP for Respondent: Mrs. Pratibha J. Bharad ….. WITHCRIMINAL APPLICATION NO. 294 OF 2024INCRIMINAL WRIT PETITION NO. 1771 OF 2023Avinash Venkartrao ShindeversusThe Superintendent of Police and others …..Advocate for the applicant: Mr. S.S. GangakhedkarA.P.P. for respondent No.1 : Mrs. Pratibha J. Bharad Advocate for respondents: Mr. A.S. Bayas CORAM : SANJAY A. DESHMUKH, J. DATED : 23rd JANUARY, 2024. PER COURT :- 1.The criminal writ petition No. 1771 of 2023 is directedagainst the impugned order dated 30.9.2023 passed in Misc. criminalapplication No. 30 of 2023 which was filed under Section 408 of theCode of Criminal Procedure, 1973 (for short “the Cr.P.C.”) fortransferring the Sessions Case No. 93 of 2016 pending before theAdditional Sessions Judge-1 Nanded to another court. A criminalapplication No. 294 of 2024 is filed seeking same relief in writ petitionNo. 1771 of 2023 to add the applicant as respondent in criminal writ wp1771.23-2- petition and that he be permitted to participate in this writ petition. Healso prayed that the Special (Atrocity) Case No. 7 of 2018 betransferred from Additional Sessions Judge-1, Nanded to any otherCourt.2.Learned advocates for the petitioners in writ petition No.1771 of 2023 pointed out the conduct of the Presiding Officer of theSessions Case No. 93 of 2016 that he is not proceeding with the trialas per the provisions of law. It is pointed out that the PresidingOfficer is conducting the trial with biased mind and it is not fairlyacting with the petitioners. The example quoted is that prosecutionpanch witness P.W.2 turned hostile. Some questions were put to thewitness by the court. However, in the last para of his deposition, thetrial court directed to that witness (PW-2) to submit bond to securehis presence assuming that he had given false evidence andultimately bond of Rs.5000/- was executed. Learned advocatefurther submitted that in earlier Sessions Case No. 358 of 2019,decided on 11.4.2023, the applicant was convicted, however, copy ofthat judgment was not given on the day of the judgment andtherefore, by filing a writ petition, directions were sought against thesame Court. Even after direction of the High Court also, the copy ofthe judgment was not made available to these petitioners-accused.Therefore, explanation was called from that Court. Thereafter, thecopies were supplied. Learned advocate for the petitioners lastlypointed out the complaint about the behaviour of the same Presiding wp1771.23-3- Officer, made by 222 advocates of the Nanded Bar Associationpraying for taking action against him. It is lastly prayed that thepetitioners will not get justice from that Presiding Officer, therefore,said case deserves to be transferred.3.Learned advocate in criminal application No. 294 of 2024submitted that special Atrocities case No. 7 of 2018 is pending beforethe same Presiding Officer. An application was moved by theapplicant for transfer of the case from the same Presiding Officer tothe Principal District and Sessions Judge, Nanded. The saidPresiding Officer when he was in charge Principal District andSessions Judge, Nanded, submitted report to facilitate the rejection ofthe said transfer application by compelling the Superintendent ofDistrict Court, Nanded to submit the report dated 20.10.2023 andtherefore, that application is not yet decided. Learned advocatefurther submitted that the prayer for recalling some of the witnesseswas made. However, that was turned down by the same PresidingOfficer. With similar grievance a criminal writ petition No. 477 of2022 was filed and it was allowed by giving directions to thePresiding Officer to recall the witnesses. He pointed out that the saidPresiding Officer when he was acting as Principal District andSessions Judge, Nanded, called the say from the Superintendent ofthe District Court and the same was submitted for decision of transferof the case. The application is not yet decided, which was filed on21.8.2023. Learned advocate for the petitioners has pointed out that wp1771.23-4- the application submitted by the applicant accused making grievanceabout the same Presiding Officer for transfer of the case to anotherCourt is not decided for months together. He submitted that theapplicant will not get justice as the Presiding Officer is prejudiced andacting with bias.4.Learned advocate for the applicant has pointed out thatsome documents like report, test identification parade were directlyexhibited without giving an opportunity to the defence. He pointed outthe said order. All these conducts of the Presiding Officer lead toinference that the Presiding Officer is not fair with the accused whileconducting trials in aforesaid both the cases. He therefore prayedthat it is necessary to transfer the said case to another Court. 5.Mr. Gangakhedkar, learned advocate for the applicantplaced reliance on the following authorities:-i)C. Ravichandran Iyer vs. Justice A.M. Bhattacharjeeand others, reported in (1995) 5 SCC 457, in which in para23 the Hon’ble Supreme court held as under:-“23.To keep the stream of justice clean and pure, theJudge must be endowed with sterling character, impeccableintegrity and upright behaviour. Erosion thereof would underminethe efficacy of the rule of law and the working of the Constitutionitself. The Judges of higher echelons, therefore, should not bemere men of clay with all the frailties and foibles, human failings wp1771.23-5- and weak character which may be found in those in other walksof life. They should be men of fighting faith with tough fibre notsusceptible to any pressure, economic, political or any sort. Theactual as well as the apparent independence of judiciary wouldbe transparent only when the office holders endow thosequalities which would operate as impregnable fortress againstsurreptitious attempts to undermine the independence of thejudiciary. In short, the behaviour of the Judge is the bastion forthe people to reap the fruits of the democracy, liberty and justiceand the antithesis rocks the bottom of the rule of law.” ii)P.D. Dinakaran (I) vs. Judges Inquiry Committee andothers, reported in (2011) 8 SCC 380, in which in para 41,it is held that:- “41. In this case, we are concerned with the application of first ofthe two principles of natural justice recognized by the traditionalEnglish Law, i.e., Nemo debet esse judex in propria causa. Thisprinciple consists of the rule against bias or interest and is basedon three maxims: (i) No man shall be a judge in his own cause;(ii) Justice should not only be done, but manifestly andundoubtedly be seen to be done; and (iii) Judges, like Caesar'swife should be above suspicion. The first requirement of naturaljustice is that the Judge should be impartial and neutral and mustbe free from bias. He is supposed to be indifferent to the partiesto the controversy. He cannot act as Judge of a cause in whichhe himself has some interest either pecuniary or otherwise as itaffords the strongest proof against neutrality. He must be in aposition to act judicially and to decide the matter objectively. AJudge must be of sterner stuff. His mental equipoise mustalways remain firm and undetected. He should not allow hispersonal prejudice to go into the decision-making. The object isnot merely that the scales be held even; it is also that they maynot appear to be inclined. If the Judge is subject to bias in favourof or against either party to the dispute or is in a position that a wp1771.23-6- bias can be assumed, he is disqualified to act as a Judge, andthe proceedings will be vitiated. This rule applies to the judicialand administrative authorities required to act judicially or quasi-judicially.” iii)Subrata Roy Sahara vs. Union of India and others,reported in (2014) 8 SCC 470, in which the Hon’bleSupreme Court in para 15, held as under:- “15. By the time a Judge is called upon to serve on theBench of the Supreme Court of India, he understands hisresponsibilities and duties…..and also his powers and authority.A Judge has the solemn duty of deciding conflicting issuesbetween rival parties. Rival parties inevitably claim diagonallyopposite rights. The decision has however to be rendered infavour of one party (and against the other). That, however, is nota cause for much worry, because a Judge is to decide everydispute, in consonance with law. If one is not free to decide inconsonance with his will, but must decide in consonance withlaw, the concept of a Judge being an individual possessingpower and authority, is but a delusion. The saving grace is, thatonly a few understand this reality. But what a Judge is taughtduring his arduous and onerous journey to the Supreme Court is,that his calling is based on, the faith and confidence reposed inhim to serve his country, its institutions and citizens. Each one ofthe above (the country, its institutions and citizens), needs to bepreserved. Each of them grows to prosper, with the others’support. Each of them has duties, obligations andresponsibilities…..and also rights, benefits and advantages.Their harmonious glory, emerges from, what is commonlyunderstood as, “the rule of law.” The judiciary as an institution,has extremely sacrosanct duties, obligations and responsibilities.We shall, in the succeeding paragraphs, attempt to expressthese, in a formal perspective.” wp1771.23-7- 6.Learned advocate for the petitioners in criminal writ petitionNo. 1771 of 2023 placed reliance on the judgment of the SupremeCourt in the case of Zahira Habibullah Sheikh (5) and Another vs.State of Gujarat and others, reported in (2006) SCC 374, andmore particularly para 36 thereof, which is reproduced as under:-“36.The principles of rule of law and due process areclosely linked with human rights protection. Such rights can beprotected effectively when a citizen has recourse to the Courtsof law. It has to be unmistakably understood that a trial which isprimarily aimed at ascertaining the truth has to be fair to allconcerned. There can be no analytical, all comprehensive orexhaustive definition of the concept of a fair trial, and it mayhave to be determined in seemingly infinite variety of actualsituations with the ultimate object in mind viz. whethersomething that was done or said either before or at the trialdeprived the quality of fairness to a degree where a miscarriageof justice has resulted. It will not be correct to say that it is onlythe accused who must be fairly dealt with. That would be turninga Nelson's eye to the needs of the society at large and thevictims or their family members and relatives. Each one has aninbuilt right to be dealt with fairly in a criminal trial. Denial of afair trial is as much injustice to the accused as is to the victimand the society. Fair trial obviously would mean a trial before animpartial Judge, a fair prosecutor and atmosphere of judicialcalm. Fair trial means a trial in which bias or prejudice for oragainst the accused, the witnesses, or the cause which is beingtried is eliminated. If the witnesses get threatened or are forcedto give false evidence that also would not result in a fair trial.The failure to hear material witnesses is certainly denial of fairtrial.” wp1771.23-8- 7.Heard learned A.P.P. for the respondent-State.8.The remarks were called from the Principal District andSessions Judge, Nanded. The Principal District and Sessions Judge,Nanded communicated that the said Presiding Officer is havingworkload and the tension. However, he is sincere and therefore,there is no substance in the grievances raised against him and theseare baseless. Though 222 members of the Bar had raised grievanceagainst the same Presiding Officer that he is not behaving properlyabout which the Principal District and Sessions Judge has not madeany remark.9.The grievances of the Bar Association, Nanded cannot bethe ground for allowing this writ petition and the application fortransfer of the case.10.It appears from the record itself that panch witness (PW-2)who turned hostile was threatened by the Presiding Officer about hisdeposition. He was compelled to execute bond about future action ofgiving false evidence. This view of the Presiding Officer shows bias tothe petitioners accused. As per Section 344 of the Cr.P.C. the trialcourt has to come to the conclusion at the time of giving judgmentthat the witness has deposed falsely or fabricated evidence. Thenonly further action can be taken against such witness. There is no wp1771.23-9- provision in law to punish the witness who turned hostile unless anduntil it is concluded in the judgment that the witness has deposedfalsely or fabricated the false evidence/ documents. This witnesscannot be compelled to execute bond. Such view of the trial court isbias and premature. This conduct of the Presiding Officer shows thathe is prejudiced and he is unfair with the accused/petitioners. It issufficient ground for transferring the case from that court to anothercourt.11.While exhibiting some documents, the Presiding Officer hasnot given any reasons. He cannot pass such order mechanically.Thus, he failed to consider that the reasons are soul of the judgmentand such course of action is unfair resulting into illegality, by whichprejudice is caused to the petitioners-accused.12.In the case of Subrata Roy Sahara vs. Union of Indiaand others (supra), the Hon’ble Supreme Court has held that theJudge has a solemn duty of deciding conflicting issues between therival parties. He must act fairly and impartially. The conduct of thisPresiding Officer is contrary to the directions and guidelines of theHon’ble Supreme Court’s precedents cited supra. 13.Considering all the above, it appears that the PresidingOfficer is not acting impartially and he is not free from bias againstthese accused-petitioners and applicant. Their trials are not fairly wp1771.23-10- conducted. They will get justice from the said Presiding Officer.Considering all these aspects, serious prejudice is certainly caused tothe petitioners and the applicant and their right to fair trial is certainlyaffected as contemplated under Articles 19 and 21 of the Constitutionof India. Therefore, the writ petition as well as the civil applicationdeserve to be allowed in the interest of justice. The same are allowedwith the following directions:- I.The Principal District and Sessions Judge, Nanded is directedto transfer both the cases i.e. Sessions Case No. 93 of 2016and Special (Atrocity) case No. 7 of 2018 from the Court ofAdditional Sessions Judge No.1 Shri S.E. Banger to theAdditional Sessions Judge No.2 Shri C.V. Marathe. He shall tryand conclude the case as expeditiously as possible. II.The learned Principal District and Sessions Judge, Nanded isdirected to report accordingly to the Registrar (Judicial) of thisCourt. IIIThe Registrar (Judicial) of this Court to communicate this orderto the concerned and report the compliance of this order. (SANJAY A. DESHMUKH, J.) rlj/