SURESH KUMAR Vs. STATE

JUDGEMENT

(1.) This is a petition moved by the complainantSuresh Kumar under sub-section (6) of s. 407 of the Code of Criminal Procedure, 1973, for transfer of the case State v. Om Pal Singhand others, under Ss. 364, 365, 342, 506, T.P.C., from the court ofShri P. K. Bahri, Additional Sessions Judge, Delhi, to some other competentcourt.

(2.) Upon an F.I.R. lodged with the A. C. Police (Crime) on 21/08/1978, at 10.45 P.M., a case was instituted against the accusedrespondents on the allegations that on 20/08/1978, at about10.30 P.M. in the night, the complainant Suresh Kumar and one MissSushma Chaudhary were going in a car No. BRP 651 towards JamunaBazar within the jurisdiction of P. S. Kashmere Gate, Delhi. Theywere invested by about ten-eleven persons who emerged out of twotaxis and drove them away to a big building on the roadside. Theywere beaten, detained and forced to write some letters and pose forphotographs. The identity of only three abductors could be established.They were, (1) Om Pal Singh, Office Secretary of the All India KisanSammelan, (2) K. C. Tyagi, General Secretary of the Yuva Janata,and (3) A. P. Singh, a Janata (S) worker. The investigation is alsoalleged to have disclosed that the said building was that of a collegein village Patia near Modi Nagar and that Om Pal Singh had been ateacher in 1968 in the said college and several criminal cases havebeen registered against him at Meerut. The challan was filed on 1/12/1978. Shri Soni was engaged by the complainant on 5/12/1978. Upon investigation report of the police and commitment bythe magistrate, charges under Ss. 341, 342, 364, 365 and 506 read withS. 34, Indian Penal Code ., were framed on 3/08/1979, against Om Pal Singhand K. C. Tyagi. The third accused A. P. Singh was absconding. Thecase was being fixed for evidence from November 1979. The proceedings were, however, stayed by this Court on 25/10/1979, at theinstance of the complainant who had filed a revision petition againstthe order of framing of charges. But that petition was dismissed byme on 18/03/1980. The trial commenced before the said Addl.Sessio s Judge on 21/04/1980. On that date, the learned Judgefixed various dates of evidence for various witnesses. The complainantSuresh Kumar had engaged Shri O. P. Soni, Advocate, to appear onhis behalf in the court. The Additional Public Prosecutor has written tosay that he has been conducting the case personally and had nevergiven any instructions or directions to conduct the case on behalf of theprosecution to Shri O. P. Soni. The complainant Suresh Kumar wascalled on 17/07/1980. A summons was issued on 23/04/1980,and it appears that it was received on his address on 27/06/1980.The signatures on the summons look like that of some 'Gupta'. Theprocess server, however, reported that the service had been effected.

(3.) On 17/07/1980, since there was a report that service hadbeen effected, and Suresh Kumar was absent, the learned Judge inquired of Shri Soni whether the complainant could come to the court nextday. The court was informed that the complainant was out of station.The court then directed that bailable warrant in the sum of Rs. 500.00be issued for 22/07/1980. A notice under S. 350, Criminal Procedure Code ., be alsoserved on Suresh Kumar for his absence. These proceedings wereprominently reported in the newspapers; in the Hindustan Times of 18/07/1980, the headline was "Warrants of Arrest Against Suresh".The bailable warrant was returned unserved with the report that SureshKumar was not available at the address given. On 23/07/1980, anapplication was moved by Shri O. P. Soni for cancelling the warranton the ground that the complainant had been in Bihar since 20/06/1980, but no order was passed. The complainant also moved anapplication for summoning the third accused A. P. Singh. This prayerwas allowed, so that the trial of all the three accused could proceedjointly. A. P. Singh was summoned. He appeared on 26/07/1980,and after the requisite formalities charges were framed against him aswell. On 7/08/1980, the case was adjourned for evidence of theprosecution witnesses to 28/08/1980. and 29, 1980. The Courtrecorded that Shri O. P. Soni stated that the complainant Suresh Kumarwould appear on Aug 28/08/1980. It is now alleged in the presentpetition that this statement was made subject to the availability of thepetitioner and issuance of summons to him but the court issued nosummons. In an affidavit filed on 30/09/1980, the versiongiven is that the counsel had said "why not". No undertaking wasgiven by the counsel and in fact no counsel could give an undertakingthat his client would appear. It is also complained that the prosecution did at no time apply for issue of summons to the complainant andyet the court resorted to coercive process.