Usmangani Adambhai Vahora vs. State of Gujarat And Ors. (2016)

CASE NAME: USMANGANI ADAMBHAI VAHORA VS. STATE OF GUJARAT AND ORS. (2016)

CASE CITATION: AIR 2016 SC 336, (2016) 3 SCC 370, [2016] 1 SCR 56

CASE FACTS

The following are the facts of the case[1]:

· The 2nd Respondent was called for trial before the 3rd Additional Sessions Judge, Kheda as an accused individual for offences under Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of the Indian Penal Code, 1860 in Sessions Case No. 291 of 2003.

· On July 31, 2015, when the trial was fixed, Respondent 2 overheard the conversation between the informant and his son in the parking area that the hearing for the case would be taken up from the next date forward and all accused individuals would be convicted.

· Respondent 2 connected the conversion he overheard between the informant and his son in the parking lot to the Presiding Officer remarks regarding the trial and filed Criminal Miscellaneous Application No. 545 of 2015 to transfer the case to any other court in the same Sessions Division under Section 408 of the Code of Criminal Procedure, 1973.

· On August 14, 2015, the learned Principal Sessions Judge rejected the application after hearing the remarks of the Presiding Officer and stated that he does not have jurisdiction to transfer the case under Section 408 of the Code of Criminal Procedure, 1973 after the trial has commenced.

· The Gujarat High Court referred to the conversation between the parties, and whether the apprehension of Respondent 2 was reasonable. Additionally, the High Court took into consideration that the learned 3rd Additional Sessions Judge did not examine any witness, and that all witnesses examined were done by his predecessor.

· Ultimately, the Gujarat High Court ruled that even though it is likely the case that the learned 3rd Additional Sessions Judge acted in a judicious manner, the case should be transferred, and that the Principal Sessions Judge has the power to transfer the case under Section 408 of the Code of Criminal Procedure, 1973.

· Hence the present appeal was filed in the Apex Court of India.

ISSUES OF CASE

1. Whether the High Court of Gujarat was right in setting aside the order passed by the learned Principal Sessions Judge under Article 227 of the Indian Constitution?

2. Whether the learned Principal Sessions Judge has the power to transfer a Sessions case to any other court in the same Sessions Division under Section 408 of the Code of Criminal Procedure, 1973?

RULES

· Article 227 in The Constitution of India 1949 - Power of superintendence over all courts by the High Court.

· Section 408 in The Code of Criminal Procedure, 1973 - Power of Sessions Judge to transfer cases and appeals.

ANALYSIS

The High Court ruled in favor of Respondent 2 due to the nature of the facts of the case and at no fault of the learned 3rd Additional Sessions Judge.

The Gujarat High Court took into consideration the remarks of the learned 3rd Additional Sessions Judge required by the Principal Sessions Judge when deciding the matter and that the 3rd Additional Sessions Judge is regarded as a convicting judge. However, the trial judge is merely required to reply to the request of remarks of the Principal Sessions Judge. Nothing else is required by the trial judge. In the present case, the trial judge did provide an explanation to request of the Principal Sessions Judge and no evidence was brought on record to show that the trial judge was a convicting judge. This helps in determining the next key question which is whether Respondent 2 had a reasonable apprehension to believe that the judge was biased.

The High Court did not establish whether the apprehension of Respondent 2 was reasonable, and the remarks made by the Presiding Officer or the conversation between the informant and his son were referred to justify the apprehension of Respondent 2. The test for reasonable apprehension was laid down in Gurcharan Das Chadha vs. State of Rajasthan (1966). The Apex Court held that it should be reasonable for an individual to infer from the circumstances shown by the petitioner that justice will not be done in his case and the petitioner does not need to provide exact proof that justice will definitely fail in his case. Mere state of mind of the petitioner is not all that should be considered in establishing whether apprehension is reasonable.[2] Any prudent individual should be able to infer from the circumstances alleged by the petitioner that justice will not be done in the petitioner’s case. In Abdul Nazar Madani vs. State of Tamil Nadu and Ors. (2000) 6 SCC 204, the Apex Court held that the apprehension should not be an imaginary one, based on theories or assumptions, and that the Courts should decide the matter based on the facts and circumstances of the case. Convenience of the parties and witnesses or larger interest of society can be taken into consideration too when transferring cases.[3] Mere allegation that justice will not be done does not suffice as reasonable apprehension.[4] In the present case, no circumstantial evidence has been provided by Respondent 2, that justice will not be done by the learned 3rd Additional Sessions Judge besides mere allegations. As such the High Court’s conclusion cannot be considered right.

Free and fair trial is embodied in Article 21 of the Indian Constitution[5], and it is essential for public confidence that judicial fairness is assured in criminal trials, but it should be the case only when the fairness of the trial would seriously be undermined that transfers should be allowed. In Lalu Prasad alias Lalu Prasad Yadav vs. State of Jharkhand (2013), the argument that the presiding judge was associated with the Chief Minister of Jharkhand, and that the Appellants are political rivals of the Chief Minister was dismissed. The Supreme Court held that the judiciary is independent, and that the judges and lawyers work together for the interest of the public, uninfluenced by those managing the State. A judicial officer or lawyer will not be devalued and will be considered to be working with utmost dignity and complete sense of responsibility.[6] Hence while it is important to ensure that the trial is fair and just, it is also important to uphold the institution of judges and lawyers. Cases should only be transferred in the most exceptional of circumstances.

In the present case, the learned 3rd Additional Sessions Judge provided his remarks when required by the learned Principal Sessions Judge and besides allegations by Respondent 2 nothing has been provided to substantiate the same. Hence it cannot be deduced that the learned 3rd Additional Sessions Judge had disinclination in handling the case. With respect to the non-examination of witnesses by the learned 3rd Additional Sessions Judge, the Apex Court relied on K.P. Tiwari vs. State of M.P. 1994 wherein it was held that lower judicial officers work in a charged environment and as such their errors cannot be inferred as improper motive[7].

With respect to the power of the Principal Sessions Judge to transfer a Sessions case to any other court in the same Sessions Division under Section 408 of the Code of Criminal Procedure, 1973, the Apex Court agreed with the Gujarat High Court.

CONCLUSION

Hence, the Apex Court allowed the appeal in part. It held that Gujarat High Court was right in stating that the learned Principal Sessions Judge has the power to transfer cases under Section 408 of the Code of Criminal Procedure, 1973 but was erroneous in allowing the transfer in the present case. The Supreme Court’s decision to disallow the transfer in the present case can be applauded. While it is essential that every individual is provided a fair and just trial, it is also essential that the individuals do not game the judicial system and move their cases where they deem favorable to their cause. It is expected that judges and lawyers would act with a manner of responsibility and prudence and as such, it is reasonable that transfers based on apprehension are allowed only in the most exceptional of circumstances. Merely because a lower judge has committed an error cannot be infered as improper motive considering the volume and nature of cases handled by them on a daily basis.

REFERENCES

[1] Usmangani Adambhai Vahora vs. State of Gujarat and Ors., (2016) 3 SCC 370.

[2] Gurcharan Das Chadha vs. State of Rajasthan, AIR 1966 SC 1418.

[3] Abdul Nazar Madani vs. State of Tamil Nadu and Ors., (2000) 6 SCC 204.

[4] Captain Amarinder Singh v. Parkash Singh Badal and Ors., (2009) 6 SCC 260.

[5] INDIA CONST. art. 21.

[6] Lalu Prasad alias Lalu Prasad Yadav vs. State of Jharkhand (2013) 8 SCC 593.

[7] K.P. Tiwari vs. State of M.P. 1994 Supp. (1) SCC 540.