Kanaklata v. State (Nct Of Delhi) And Others

T.S Thakur, J.(for himself and A.K Goel, J.; Banumathi, J. dissenting)— Leave granted. This appeal arises out of an order dated 29-8-2013 2013 SCC OnLine Del 6396, order dated 29-8-2013 (Del) passed by a learned Single Judge of the High Court of Delhi whereby the High Court has dismissed 2013 SCC OnLine Del 6396 filed by the appellant seeking transfer of Sessions Case No. 1006 of 2009 from the Court where it is presently pending to any other Sessions Court at Rohini or Tis Hazari.

2. Sessions Case No. 1006 of 2009 arises out of FIR No. 156 of 2008 registered at Police Station Mukherjee Nagar for commission of the offences punishable under Sections 323/354 IPC and Sections 3(1)(x), (xi) and (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Additional Sessions Judge, Rohini, before whom the matter is currently pending, appears to have heard the parties on the question of framing of charges and by an order dated 22-3-2010 discharged the accused persons for the offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was in that view made over to the Ilaqa Magistrate for consideration whether the charges under the Penal Code, 1860 need to be framed in the case.

3. The complainant questioned the discharge order passed by the trial court before the High Court in a revision petition which was allowed by the High Court by its order dated 10-12-2012 2012 SCC OnLine Del 6126 , (2013) 133 DRJ 680 with a direction to the trial court to pass a fresh order on the subject after hearing both the parties. It was at this stage, that the complainant expressed an apprehension about the fairness of the approach which the trial court may adopt in view of the findings recorded in the order of discharge earlier passed by her. The complainant (the appellant herein) expressed these fears first in TP (Crl.) No. 31 of 2013 filed before the Sessions Judge, Rohini which was dismissed by the said court by order dated 22-5-2013 holding that since no other officer in North-West District in Delhi has been notified for trial of cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 the prayer for transfer in essence was tantamount to asking for a transfer to another district which could be allowed only by the High Court.

4. It was in the above backdrop that the complainant filed TP (Crl.) No. 31 of 2013 before the High Court seeking transfer of the case to any other court competent to try the same outside Rohini District. That application, as noticed above, has been dismissed by the High Court in terms of the order impugned in the present appeal primarily on the ground that the order passed by the High Court has made it sufficiently clear that the observations made in the order passed by the trial court shall not influence any fresh order which the said Court may pass pursuant to the remand made by the High Court. The High Court has also observed that the complainant (the appellant herein) had while filing Crl. RP No. 242 of 2010 against the discharge order expressed no apprehension nor sought transfer of the case from the Court where it is pending to any other court.

5. We have heard the learned counsel for the parties at some length. It is true that the trial court had while discharging the accused persons under the Special Act mentioned above, made certain observations about the alleged misuse of the provisions of the said Act by unscrupulous elements and also certain suggestions for remedying that situation. It is also true that the trial court had come to the conclusion that there is no real basis for it to frame any charge against the accused persons under the said Act. But it is equally true that while setting aside that order and directing a fresh order on the question of charge, the High Court has clearly mentioned that the trial court shall remain uninfluenced by the observation made in its earlier order. That observation is, in the opinion of the High Court, a sufficient safeguard against any possible prejudice to the complainant appellant herein making transfer of the case from the Court at Rohini to any other court unnecessary.

6. Now in the ordinary course if an order passed by the court is set aside, the observations and findings recorded therein also get obliterated for all intents and purposes. So also if the High Court makes the position clear that any such observation shall not influence the court concerned while making a fresh order the same should ordinarily put the matter beyond the pale of any controversy. Having said that, there may still be situations where the nature of the observations made by the court concerned create a reasonable apprehension in the mind of the litigant that the court has so committed itself to a given approach or thought process that it may not be possible for it to retrace its steps to take a fair and non-partisan view in the matter.

7. The present appears to be one such case where despite the safeguards provided by the High Court's observations, the apprehension of the complainant continues to subsist. We do not think that such apprehension is wholly misconceived nor can it be dubbed as forum shopping in disguise. The earlier order passed by the trial court is so strongly worded that it could in all likelihood give rise to a reasonable apprehension in the mind of the complainant which cannot be lightly brushed aside. We must hasten to add that we are not in the least suggesting that the Presiding Officer of the trial court is totally incapable of adopting a fair approach while passing a fresh order but then the question is not whether the Judge is biased or incapable of rising above the earlier observations made by her. The question is whether the apprehension of the complainant is reasonable for us to direct a transfer. Justice must not only be done but must seem to have been done. A lurking suspicion in the mind of the complainant will leave him with a brooding sense of having suffered injustice not because he had no case, but because the Presiding Officer had a preconceived notion about it. On that test we consider the present to be a case where the High Court ought to have directed a transfer. Inasmuch as it did not do so, we have no option but to interfere and direct transfer of the case to another court.

8. We are mindful of the fact that the transfer ordered by us may cause inconvenience and harassment to the accused persons but that can, in our opinion, be taken care of by directing that in case an application for exemption from personal appearances is filed, the court concerned shall consider the same and pass appropriate orders in accordance with law.

9. In the result, we allow this appeal, set aside the order 2013 SCC OnLine Del 6396, order dated 29-8-2013 (Del) passed by the High Court and direct that Sessions Case No. 1006 of 2009 pending in the Court of the Additional District and Sessions Judge, Rohini shall stand transferred from that Court to the Court of Sessions Judge, Tis Hazari, who shall try the same himself or make it over to any other court duly notified and competent to do so. Record of the case shall be transmitted to the transferee court expeditiously.

R. Banumathi, J. (dissenting)— I have had the benefit of going through the judgment proposed by His Lordship Justice T.S Thakur. For the reasons which I have indicated below, I am unable to agree with the proposed final decision and in my view, the present appeal is liable to be dismissed.

11. The appellant seeks transfer of Sessions Case No. 1006 of 2009 arising out of FIR No. 156 of 2008 registered at Police Station Mukherjee Nagar, Delhi. As per the allegations made by the appellant complainant in the FIR dated 4-5-2008, they have been the tenants under the accused persons and on 3-5-2008, Respondents 2 to 10-accused obstructed and abused them by uttering objectionable caste-based remarks against them. On the basis of the complaint lodged by the complainant, an FIR was registered under Sections 323/341/354 and 34 IPC and Sections 3(1)(x), (xi) and (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. On the discharge petition filed by Respondents 2 to 10, the learned Additional Sessions Judge, Rohini Courts, vide order dated 22-3-2010 discharged all the respondents.

12. Being aggrieved, the complainant moved the High Court in revision petition being Criminal Revision No. 242 of 2010 challenging the order of discharge. Vide the order dated 10-12-2012 2012 SCC OnLine Del 6126 , (2013) 133 DRJ 680, the High Court set aside the order of discharge and remitted the matter back to the trial court to consider the matter afresh being uninfluenced by the observations made in the earlier order dated 22-3-2010. Thereafter, the complainant moved a transfer petition before the District and Sessions Judge, Rohini Courts and also the High Court. Both the petitions were dismissed vide orders dated 22-5-2013 and 29-8-2013 2013 SCC OnLine Del 6396, order dated 29-8-2013 (Del), respectively. Being aggrieved, the complainant has filed this appeal by way of special leave, seeking transfer of Sessions Case No. 1006 of 2009 expressing apprehension that in spite of the direction of the High Court, the trial court might proceed on a preconceived notion.

13. We have heard the learned counsel for the appellant and Ms Pinky Anand, learned Additional Solicitor General of India for Respondent 1 and Ms Susmita Lal, learned counsel for Respondents 2 to 10.

14. An application for transfer of a case pending against the accused cannot be permitted merely because the learned Sessions Judge had made certain observations and recorded finding in the earlier order dated 22-3-2010 while allowing the discharge petition. The said order dated 22-3-2010 was set aside by the High Court and the matter was remanded to the Sessions Court to consider the matter afresh being uninfluenced by any observation made in the earlier order. When the earlier order has been set aside by the High Court and the matter was remitted back to the Sessions Court for consideration of the matter afresh, apprehension of the appellant that the learned trial Judge may not adopt a fair approach is untenable.

15. As rightly pointed out by the High Court, earlier when the revision petition was allowed by the High Court and the matter was remitted back to the trial court, no apprehension of bias was expressed nor was any request made for a transfer of the case from the Special Court to some other court. On behalf of the appellant, it is now contended that in the said revision petition, the appellant could not have asked for transfer of the criminal case. In my considered view, such contention cannot be countenanced. Under Section 482 CrPC, in order to secure the ends of justice, the High Court has inherent power to pass appropriate order. Having accepted the order of remand to the trial court for consideration of the matter afresh, the appellant is not justified in seeking transfer. The appellant has neither challenged the said order of remand nor raised the apprehension that the trial court may not adopt a fair approach.

16. It is pertinent to note that the case has been registered by the complainant who were the tenants against the respondent landlords numbering as many as nine persons and the matter is pending trial since 2009. By filing transfer petition in 2013, the appellant seems to appear to be interested only in delaying the matter.

17. In considering the transfer application, it is to be kept in mind that whether a litigant could reasonably apprehend a bias attributable to a Presiding Judge. Transfer of a case from one court to another has serious effects on the Judge from whom the case is sought to be transferred. Mere presumptions or possible assumptions are not sufficient for transfer of a case. Only on good and sufficient grounds a transfer can be ordered. In my considered view, the appellant has not made out any good and sufficient ground for transfer.

18. It is also pertinent to note that any casual observations made by a Presiding Officer of the trial court would not be a sufficient ground for transfer for the reason that the trial courts work in a charged atmosphere and they do not have the benefit of a detached atmosphere of the higher courts so as to think coolly and decide patiently. In this regard, we may usefully refer to the decision of this Court in K.P Tiwari v. State of M.P 1994 Supp (1) SCC 540 , 1994 SCC (Cri) 712, in which this Court has observed as under:

“4. … The higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a Judge who has not committed an error is yet to be born. And that applies to Judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks—more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive.”

19. The appellant has not made out any sufficient ground for transfer and the request for transfer is bereft of merits. The High Court has rightly dismissed the transfer petition and the same does not warrant any interference by this Court. The appeal is dismissed.