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Suraj Singh v/s State of Bihar

    Cri.Misc. 28169,30170,27753 Of 2006

    Decided On, 13 September 2006

    At, High Court of Bihar

    By, THE HONOURABLE CHIEF JUSTICE MR. J.N. BHATT

    For the Appearing Parties: Ajay Thakur, Burial Kumar, Raghunandan Kumar Singh, Kamlendra Singh, P.K. Shahi, Shyarneshwar Dayal, Advocates.



Judgment Text

(1.) In this group of three criminal miscellaneous applications, the common petitioner has, virtually, raised a common question. Therefore, upon consensus, they have been heard together and now, are being disposed of by this common judgment order.

(2.) In all these cases, the accused petitioner has invoked the jurisdiction of this Court for the exercise of power under Section 407 of the Code of Criminal Procedure, 1973 (Cr. P. C.) for transfer of three cases, namely. Sessions trial No. 142 of 1995. pending before Fact Track Court 1, Begusarai (in Cr. Misc. No. 28169 of 2006). G. R. Case No. 919 of 1994, arising out of Barauni P. S. Case No. 150 of 1994, pending before the Judicial Magistrate, 1st Class, Begusarai (In Cr. Misc. No, 30170 of 2006) and Sessions Case No. 275 of 1993, pending before the Past Track Court IV, Begusaraj (In Cr. Misc, No. 27753 of 2006), to any other Court of competent jurisdiction in the State of Bihar, but. outside the district of Begusaraj, mainly, on the ground of delay, without making any specific ground or averment or even assertion. At the time of oral submission, a request was made for transfer of these cases to any Fast Track Court in the judge ship of Patna district.

(3.) The learned counsel for the petitioner. Mr. Ajay Thakur and the learned Advocate General. Mr, P. K. Shahi have addressed this Court. The learned counsel for the petitioner has also, orally, submitted that there is long delay in trial and there is no objection on his part for day to day basis trial of all these three cases. He has fairly contended that there is no allegation or any specific ground for transfer except long delay in trial.

(4.) Section 407 Cr. P. C, empowers the High Court to transfer cases and appeals in terms of the provisions incorporated therein. It will be interesting and profitable to refer to

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Section 407 Cr. P. C, in extense which reads here under ;-

"407. Power of High Court to transfer eases and appeals.- (1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or trial cannot be had in any Criminal Court subordinate there to, or (b) that some question of law of unusual difficulty is likely to arise, or (e) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties of witnesses, or is expedient for the ends of justice. it may order - (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence: (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative ; Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute abond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7) (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice. order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose ; Provided that such stay shall not affect the subordinate Court's power of remand under Section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may. if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before it self, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under Section 197."

(5.) It is quite explicit and evident from the plain perusal of the provisions of Section 407 of the Cr. P. C, that if the High Court is shown, or if it is spelt out to the satisfaction of the High Court that (i) a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (ii) that some question of law of unusual difficulty is likely to arise, or (iii) that some of the provisions of the Cr. P. C. will require passing of such order for the convenience of the parlies or witnesses or (iv) it is in the expediency of the larger interest of justice, the High Court may pass an order as incorporated under clauses (i) to (iv) of sub-section (1) of Section 407 Cr, P. C. as quoted above.

(6.) From a plain perusal of all the three applications, none of the aforesaid grounds are attracted. In other words, the Court is not addressed on any one of the aforesaid grounds which entitle the High Court to consider the merits of request for transfer of these cases.

(7.) Learned Advocate General has, therefore, rightly contended that there is no allegation or averment or existence of any one of the grounds for invocation of the power for transfer of these cases from Begusaral in terms of the provisions of Section 407 Cr P, C. This Court is, therefore, unable to comprehend as to why these applications are preferred,

(8.) So far as the first case being Cr. Misc. No. 28169 of 2006, arising out of Begusarai (town) P. S. Case No. 186 of 1992 is concorned, a few skeletal projection needs to be noted, as is borne out from the synopsis of the case given by the Slate. This case is pending before the Fast Track Court I, Begusarai. which has been the outcome of the first information report lodged on the basis of the statement of one Syed Basumul Haque, Officer Incharge, Begusarai Police Station under Sections 307, 338, 186, 324. 353, 216(A) of the Indian Penal Code and Sections 25(l-B)A, 26, 27 and 36 of the Arms Act read with Sections 3, 4 and 5 of the Explosives Act. The petitioner along with other co-accused namely Shankar Singh. Mukesh Singh, Binod Kumar Singh, Pappu Singh, Shambhu Singh, Mukesh Mishra. Ranjan Singh and Manoj Kumar are named in the F. I. R. who are alleged to be notorious criminals and absconders. It is alleged in the F. I. R. that the accused persons were staying behind Alky Talkies in village Kapsia in the house of Contractor Day a Rain Singh and were planning to commit crime but on seeing the police party, they started firing and threw two bombs in which Police personnel were also injured. The Police also fired in self-defence, as a result of which same of the accused also sustained injuries. From the possession of co-accused Shambhu Singh, two live bombs were recovered. Co-accused Mukesh Mishra, Mukesh Singh, Pappu Singh, Manoj Kumar Singh have confessed their guilt. When the police personnel asked the accused persons to surrender, they threw bomb which exploded in which the informant, Inspector of Police Krishna Chandra also received injuries along with Mahesh Prasad 3nd Jeevan Prasad. The Police submitted chargesheet, in this case, and the case was committed in the year 1995. The petitioner was though granted bail but he jumped bail and remained absconding for five years. It also appears from the ordersheet of the case that the petitioner is accused also in many other cases pending in the Begusarai Courts and also in other districts of the State.

(9.) The second application viz. Cr. Misc. No. 30170 of 2006 is for transfer of G. R. Case. No. 919 of 1994 which has arisen out of Barauni P. S. Case No. J 50 of 1994 under Sections 386/34 of the Indian Penal Code, pending before the Judicial Magistrate, 1st Class. Begusarai to any other Court of competent jurisdiction outside the judgeship of Begusarai. The material facts in nutshell may be highlighted as under.

(10.) One Ashok Kumar Singh gave a written report to the Officer Incharge. Zero Mile, which was forwarded to Officer Incharge. Banian; Police Station alleging therein that on 12-4-I994 at G P. M. six persons came on 3 red coloured Maruti Van hearing regd. No. B. R O. (9-2022 and parked the vehicle at the northern corner of the petrol pump- four persons, variously armed came on the eastern corner of the petrol pump where the infomant Ashok Kumar Singh. Shekhar Singh. Prabhu Nath Singh and Ram Badim Singh and the staff of petrol pump were standing. The first informant identified three persons who were Suraj Singh (the petitioner), Kanu Singh -@ Shankara and Naveen Singh, as soon as they came, they dashed on the chest of Ram Briksh Singh with the butt of the rifle and enquired about Nand Kishore Singh saying "Neta Kahan Hai" ("where is the leader?") on which he asked, 'what are you doing?' Shankar Singh thereafter told him to be quiet. Due to tear fear Ram Briksh Singh remaned silent. Then Shekhar Singh told who are you people and what do you want?" There after the petitioner drew tip a pistol from his waist and using filthy language told 'he will fire' and after saying so, ail the persons left the place saying "Nand Kishore Singh ko bol do ki neta giri karna chhor de nahin to use jaan se mar denge" "I ask Nand Kishore Singh to refrain from leading test he will be kiled" Two persons sitting on Maruti then took litres of petrol and without paying the price for that, they left the petrol pump. At the time of the incident One Tata 407 bearing regd. No. BR 19 1905 was also taking foel. There were fifty persons in the said vehicle who witnessed the entire occurrence along with all the staff of the petrol pump.

(11.) As if appears from the synopsis of the east-given by the State, after submission of the charge sheet, the case, is pending for trial in the Court of Judicial Magistrate, lst Class, Begusarai, charges were framed an 17-7-2003, and seven witnesses have been examined. Prosecution case was closed on 1-9-2004. In the meantime, one Gopal Prasad filed an application before the District and Sessions Judge. Begusarai, giving rise to Criminal Revision No 348 of 2004. slating therein that' witnesses 1 to 12 were never summoned for recording their deposition.

(12.) The. third application, viz. Cr Misc. No. 27753 of 2006 relates to Sessions Case No.275 of l993 pending in the court of fast Track Court No. IV, Begusarai, arising out of Barauai P. S. case No. 406 of 1992 under Sections .153. 307/34 of the Indian Penal Code and Sections 25(1 -B) A. 26, 27 and 35 of the Arms Act. As the synopsis of this case, provided by the Slate, discloses, one Uma Shankar Singh, Assistant Inspector of Police. Fertilizer Corporation of lndia, Barauni, gave his written report lo the Officer Incharge of Barauni Police Station on 9-10-1992 starting therein that on the said date he received a confidential information that accused Ram Lakhan Singh of village Bihat Ibrahimpur Tola P. S. Barauni. who is an accused in three murder cases. along with his associates and notorious criminals had assembled in his Max factory. They were also hatching up a conspiracy for committing grievous offences. After making entry of the information in the station diary being station diary entry No. 134 and informing the superior officers. he proceeded for its verification along with the Police personnel and when he reached near the Max factory he requested the inmates to open the door on which the criminals started firing on the Police party and thereafter they fled away towards southern side. On chase by the Police personnel two persons were caught who disclosed their names as Ram Lakhan Singh alias Pam Chander Singh and Birender Ishwar alias Sushan. In presence of the in dependent witnesses, fire arms were recovered. The accused persons also disclosed the name of Suraj Singh alias Suraj Bhan Singh (the petitioner) who had fired from the rifle bearing number 142 nn the B. M. P. Constable.

(13.) In this case, after the submission of the chargesheet and commitment charges were framed on 19-6-2002 and thereafter on 10-3-2006, the prosecution case was closed. Accused persons were also examined under Section 313 Cr. P. C. and 31-3-2006 was the next date fixed lor passing final order. But on 31-3-2006 the Additional Public prosecutor filed a petition with the attendance of some prosecution witnesses with s prayer to allow their examination under Section 311 Cr. P. C. which was rejected against which Cr. Revision No. 529 of 2006 was filed by the State in this Court which has been allowed with a direction to the trial Court to take evidence on the next date fixed and dispose of the trial on day-to-day basis within six weeks. In the meantime. Gopal Prasad filed a petition which was treated as a revision application by the learned Sessions Judge and lower Court records were called for and Hazari on behalf of the said Gopal Prasad was filed.

(14.) The respondent State has filed a counter-affidavit. Where int inter alia, it has been pointed out succinetly that petitioner Suraj Singh alias Surajbhan Singh is arranged as an accused in as many as 11 cases pending in Begusarai Sessions Division alone. There may be cases pending in other Sessions Division also and. therefore. the Superintendent of Police, Begusarai in making all efforts to collect information about all other pending cases in the Sessions Divisions.

(15.) Upon consideration of the facts and circumstances, the factual profile and the grounds stated in these three applications, none of the ingredients warranting exercise of power under Section 407, Cr. P.C. have been pointed out or spelt out. Of course, the ground stated in all these three applications were controverted by the State by filing counter-affidavit. Apart from that the learned counsel for the petitioner in these three transfer applications, at the time, of oral submissions, has fairly stated that direction for expeditious disposal of cases is not objected. On the contrary, he has submitted that there may be specific direction for day-to-day basis trial so as to conclude at early. He has also submitted that a Lime schedule may be fixed.

(16.) Learned Advocate General has drawn attention of this Court to a copy of judgment and order passed by this Court in Criminal Revision No. 529 of 2006 disposed of on 25th July, 2006 arising out of one of the cases against the present petitioner, Suraj Singh alias Suraj Bhan Singh against the order dated 29-5-2006 passed by the Fast Track Court No. IV, Begusarai, in Sessions Trial No. 275 of 1993 which have given rise to the third transfer application (Cr. Misc. No 27753 of 2006). It will be interesting to mention at this stage that following directions were given while allowing revision petition filed by the State:-

"As the trial is pending since long, the prosecution shall examine all its witnesses within six weeks from the next date fixed in the case and for that purpose the learned Judge in seisin of the trial shall conduct the trial on day to day basis. Sessions Judge, Begusarai, shall ensure compliance of this order. In the result, the application is allowed, impugned order is set aside with the direction aforesaid."

(17.) It becomes clear that this Court has in one of the three cases on hand, given direction for expeditious disposal of the cases pending before Begusarai Court and when there is specific direction to the trial Court to conduct the trial on day-to-day basis, against which there is no objection from the accused side, then no further question to issue any such direction would arise. The learned Sessions Judge, shall have to ensure compliance of the order of this Court.

(18.) In order to succeed in invoking the power of this Court under Section 407, Cr.P.C. for transfer of cases or appeals, one is obliged to establish existence of one or more grounds enumerated in Section 407, Cr.P.C. None of the grounds are spelt out from any of these three applications nor highlighted during the course of submission which would warrant exercise of power of this Court in terms of the provisions of Section 407, Cr.P.C. for transfer of these cases pending since long before the Fast Track Courts at Begusarai to Patna Fast Track Court. Prima facie, it seems that there is no bona fide intention on the part of the applicant. Be that as it may. statutory provision can be permitted to be invoked provided there is requisite situation or material ingredients have been established to invoke such power. Nonc-existencc of any of such grounds in the present group of three applications would, obviously in nutshell, render these applications meritless.

(19.) Accordingly, all these three applications shall stand rejected on merits with a direction to the concerned Courts to take up the trial of the cases on day-to-day basis and conclude it expeditiously as the right to speedy trial is one of the essential requirements of criminal jurisprudence. Before parting, as jointly pointed out, it may be noted that in some of the old cases pending against this accused, such direction has also been issued by the Hon'ble Apex Court.

(20.) In the result, with the above observations, all those Criminal Miscellaneous applications shall stand rejected. Rule is discharged
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