2008 Supreme(SC) 458

2008(2) Supreme 718
Supreme Court of india
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Himanshu Singh Sabharwal — Petitioner
versus
State of M.P. and Ors. — Respondents
Transfer Petition (crl.) 175 of 2007
Decided on : 12-03-2008

important point
1.Denial of a fair trial is as much injustice to the accused as is to the victim and the society.
2.Failure to hear material witnesses is certainly denial of fair trial.

Headnote:Transfer Petition — Transfer Petition filed by son of a late professor who was a professor in Government College — Allegation that, he was brutally beaten up by certain persons, for taking a rigid stand in college union elections — Though assaults were made in the presence of several police officials, media persons and members of public, attempt had been made to project as if his death was as a result of an accident — Initially, First Information Report was lodged and after investigation charge sheet was filed and charges were framed against several persons who were respondents 2 to 7 in Transfer Petition — Trial commenced in Court of Sessions Judge, Ujjain — During examination of several witnesses who were stated to be eye-witnesses, such witnesses resiled from statements made during investigation — There were even three police witnesses who also resiled from their earlier statements — Grievance of petitioner that witnesses had been coerced, threatened and ultimately justice is a casualty — Role of investigating officer gives ample scope to doubt, impartiality and sincerity of investigating agency — Similar was the position of public prosecutor — It was also highlighted that trial Court also did not make a serious effort to see that justice was done — In this connection it is pointed out that public prosecutor did not cross-examine the persons who had resiled from their statements made during investigation — Without, therefore, examining correctness of allegations made, direction given that case in question i.e. Sessions Case No.291 of 2006 pending in Court of Sessions Judge, Ujjain be transferred to Court of Sessions Judge, Nagpur, Maharashtra — The petitioner who was the son of the deceased in the peculiar facts of the case was permitted to suggest two names to function as public prosecutor — Similarly, two names shall be given by the respondent-State — It shall be for the learned Sessions Judge, Nagpur to appoint a public prosecutor from the names to be suggested — Transfer Petition is accordingly disposed of. (Para 9)

       Fair trial — Denial of a fair trial is as much injustice to the accused as is to the Victim and the society — Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm — Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated — If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial — Failure to hear material witnesses is certainly denial of fair trial — The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. (Paras 19 to 20)

       Facts of the case :

       1.A Transfer Petition was filed by son of a late professor who was a professor in Government College herein in the instant case. Allegation of petitioner that, his father was brutally beaten up by certain persons, for taking a rigid stand in college union elections. Though assaults were made in the presence of several police officials, media persons and members of public, attempt had been made to project as if his death was as a result of an accident. Initially, First Information Report was lodged and after investigation charge sheet was filed and charges were framed against several persons who were respondents 2 to 7 in Transfer Petition. Trial commenced in Court of Sessions Judge, Ujjain. During examination of several witnesses who were stated to be eye-witnesses, such witnesses resiled from statements made during investigation. There were even three police witnesses who also resiled from their earlier statements. Grievance of petitioner was that witnesses had been coerced, threatened and ultimately justice is a casualty. Role of investigating officer gives ample scope to doubt, impartiality and sincerity of investigating agency. Similar was the position of public prosecutor. It was also highlighted that trial Court also did not make a serious effort to see that justice was done. In this connection it is pointed out that public prosecutor did not cross-examine the persons who had resiled from their statements made during investigation.

       Findings of the Court :

       Without, examining correctness of allegations made, direction was given that case in question i.e. Sessions Case No.291 of 2006 pending in Court of Sessions Judge, Ujjain be transferred to Court of Sessions Judge, Nagpur, Maharashtra. The petitioner who was the son of the deceased in the peculiar facts of the case was permitted to suggest two names to function as public prosecutor. Similarly, two names shall be given by the respondent-State. It shall be for the learned Sessions Judge, Nagpur to appoint a public prosecutor from the names to be suggested. Transfer Petition was accordingly disposed of.

       Result : Petition disposed of.