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Gujarat High Court
Judgename :A.M.KAPADIA
ASHOKKUMAR PRABHUDASBHAI MODI - Appellant
Versus
STATE - Respondent
S.CRI.A. 147 of 2000
Decided On : 11/27/2001
Ashokkumar Prabhudas Modi vs. State
It may be appreciated that petitioner No. 4 gave an application vide Exh. 20 praying to supply the copy of the charge-sheet in Hindi language. On the said application, the learned Additional City Sessions Judge vide order dated 29th November, 1999 observed that the case was adjourned time and again for enabling the accused to engage the advocate of his choice or to get the appointment of the advocate from the panel of Legal Aid Committee but he has not engaged any. There is nothing on record to suggest that the accused does not know Gujarati language. On the contrary the application itself has been directed in Gujarati and during interaction with the learned P.P. Mr. Desai, the accused did answer in Gujarati. On the inquiry made by the Court he has stated that he is staying in Gujarat since last more than fifteen years. Hence, it is not believable that the accused does not know Gujarati.
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 407 - Transfer of Sessions case - Grounds whether amenable - Mere contending that Sessions Judge is giving hints and threats to witnesses and not accommodating advocates can never be called a ground to transfer a part heard Sessions case - Sometimes it comes as duty of a Judge to explain the witnesses that they should depose without fear or favour.
The next contention is that the learned Judge used to give hints and suggestions to the witnesses as to how they should depose which, according to him, amounts to interference by the concerned Judge during the course of recording of the evidence. He further contended that the concerned Judge used to give threats to the witnesses while recording evidence if they tried or resile from their police statement and panchanama and thereby compelled them to adhere to their police statement and contents of panchnama and depose accordingly and the advocate who represented accused No. 1 is not given accommodation. These mini-grievances can never be called a ground to transfer a part-heard Sessions Case from one Court to another. It is true that the learned Judge conducting trial must be fair not only to the prosecution but to the accused also. At the same time, it is the bounden duty of the trial Judge to explain to the witnesses that they should depose without fear or favour. Therefore, if on one occasion the learned Judge has given some suggestion to the witnesses that does not amount to interference while recording evidence. So far as giving accommodation to the learned advocate appearing for accused No. 1 is concerned, there must be some difference of opinion in giving the suitable date or dates of the choice of the advocates but that also cannot be considered as a ground for transfer of a part-heard Sessions Case. It is settled principles of law that Sessions trial must be conducted day-to-day without any interruption. Therefore, not giving accommodation or adjustment to the learned advocates in giving dates cannot be considered as a ground for transfer of a partheard Sessions case.
(c) Constitution of India, 1950 - Arts. 21, & 39-A - Criminal Trial - Concept of fair and impartial trial is fundamental to criminal justice - The said principal can not be achieved without providing legal aid to the accused who is unrepresented through a lawyer - Even if the accused refuses assistance of a lawyer or any legal aid, it is the duty of the Court to appoint an advocate as a amicus curiae to assist the Court in arriving at correct conclusion and to find out guilt or innocence of the accused - In the case Court found no violation of any constitutional right of the accused.
The concept of dispensing of fair and impartial criminal trial is as old as criminal justice administration system itself. It is one of the fundamental concept of the criminal justice administration system itself. It is one of the fundamental concept of the criminal justice administration system. The criminal justice administration system cannot run without fair and impartial trial. The said right is also recognized under Arts. 21 and 39-A of the Constitution of India and the said principle cannot be achieved without providing legal aid to the accused who is unrepresented through a lawyer. Even if the accused refuses to take assistance of a lawyer or any legal aid, it is the duty of the Court to appoint an advocate as an amicus curiae to assist the Court in arriving at the correct conclusion and to find out guilt or innocence of the accused. The aforesaid concept is high-lighted in various judgments of the Supreme Court as well as this Court.
( 1 ) ). IN this petition filed under Article 226/227 of the Constitution and under Section 407 of the Code of Criminal Procedure (the Code for short), petitioners, who are accused in Sessions Case No. 36 of 1999 for commission of the offence of murder of one Dr. Sonia Modi, punishable under Section 302 read with Section 120b and other sections of the Indian Penal Code and facing trial in the said case before the learned Additional City Sessions Judge (Court No. 15), Ahmedabad City, Ahmedabad, apprehending that they would not get fair and impartial criminal trial at the hands of the concerned Additional City Sessions Judge, seek transfer of the said Sessions Case pending for hearing on the file of the learned Additional City Sessions Judge (Court No. 15), Ahmedabad City, which is a part-heard case as oral evidence of eight witnesses has been completed, to any other Court within the District or outside the District within Gujarat.
( 2 ) THE birth of this proceeding has a nexus with an incident of murder of Dr. Sonia Modi. In connection with the said offence, FIR came to be registered and during the course of investigation, incriminating evidences were found against the present petitioners and, therefore, they are booked for the commission of offence of murder of Dr. Sonia Modi, punishable under Section 302 read with section 120b and other sections of the IPC. Charge-sheet is filed against the present petitioners and on committal, they are put on trial in Sessions Case No. 36 of 1999. The said case is allotted to learned Additional City Sessions Judge (Court No. 15 ).
( 3 ) IT is seen from the record that one of the present petitioners - Ashokkumar Prabhudas Modi - filed Special Criminal Application No. 100 of 2000 before this Court seeking relief of transfer of the said Sessions Case from the Court of the learned Additional City Sessions Judge (Court No. 15), to any other Court, and by order dated February 9, 2001, the said petition was permitted to be withdrawn by this Court with a view to enable the petitioners to file transfer application before the City Sessions Court, Ahmedabad and accordingly the present petitioners had preferred Criminal Misc. Application No. 346 of 2000 before the City Sessions Court, Ahmedabad, seeking the relief of transfer of the said Sessions Case from the Court of Additional City Sessions Judge, Court No. 15 to any other Court of the same Sessions Division, under Sections 408 and 409 of the Code. The learned City Sessions Judge, Ahmedabad City, vide order dated February 18, 2000 dismissed the said petition by observing that under the provisions of sections 408 and 409 of the Code, a Sessions Judge can transfer a criminal case wherein procedural irregularity against the well settled practice is alleged and is shown as likely to result into prejudice to the accused but the provisions of the said sections do not empower a Sessions Judge to go into the merits of the allegations qua conduct of a judicial officer of concurrent jurisdiction and, therefore, the transfer application before the City Sessions Court was not maintainable and deserved to be dismissed and accordingly it was dismissed. It is this order of dismissal of the said petition which has given rise to the present petition before this Court.
( 4 ) BY filing this petition, the petitioners who apprehend that fair and impartial criminal trial at the hands of the concerned Judge is at stake, seek transfer of the said Sessions case on the ground of principles of public policy that justice should not merely be done but should manifestly seen to be done. Moreover, to have a fair and impartial criminal trial is a fundamental right of the petitioners/accused implicit under Article 21 of the Constitution. The proof and the cogent material of the alleged denial of fair and impartial trial to the petitioners is elaborately highlighted in the petition which runs into 71 pages wherein the petitioners have tried to demonstrate that from t
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