AMAR SINGH YADAV Vs. STATE THR DELHI

JUDGEMENT

(1.) By this petition the Petitioner prays for setting aside of the order dated 17th April, 2012 passed by the learned Sessions Judge, Delhi dismissing the application of the petitioner seeking transfer of the trial and seeks transfer of trial in case FIR No. 356/2007 under Sections 302/120B IPC registered at PS Hauz Qazi to the Court of another learned Additional Sessions Judge.

(2.) The Petitioner before filing the present petition had filed an application under Section 406 Cr.P.C. before the learned Trial Court which application was heard by the learned Sessions Judge and dismissed vide the impugned order dated 17th April, 2012. In the application filed before the learned Trial judge the grievance of the Petitioner was limited and primarily three grounds were mentioned for seeking transfer of trial to another Judge. Firstly it was stated that the Petitioner, who was examined as PW19 on 15th November, 2012 on account of his old age being 75 years and illiteracy, could not recollect the facts properly and thus could not depose the same resulting in being declared a hostile witness by the Public Prosecutor. Secondly, though the Petitioner appears on every date of hearing fixed before the court however, his presence was not marked in the proceeding sheets and thirdly, the learned Trial Court was putting unnecessary questions to the witnesses with the intention to misguide and confuse the witnesses so that the truth may not come out on the record and as such the Petitioner apprehends that the learned trial court was trying to save the accused persons. During the course of arguments before the learned Sessions Judge besides taking the pleas mentioned above the Petitioner also contended that since one of the accused persons was from a particular community to which community the learned Additional Sessions Judge trying the case also belonged, the Petitioner did not expect a fair trial. The learned Sessions Judge after hearing the parties came to the conclusion that there was no reasonable apprehension warranting transfer of the case and the allegations as set out were vague as they did not disclose as to which of the witnesses was threatened and on which date.

(3.) During the course of arguments before this Court learned counsel for the Petitioner besides pressing the grounds urged before the learned Sessions Judge has taken an additional ground that the accuseds in the present FIR were also accuseds in FIR No. 68/2008 under Sections 3 (1), 3 (2) and 3(4) of the Maharashtra Control Organized Crimes Act (in short 'MCOCA') registered at PS Hauz Qazi and since the same learned Additional Sessions Judge has discharged the accuseds for offence under Section 3 of MCOCA the learned Additional Sessions Judge has pre-judged the issues and thus the Petitioner does not expect that the accused would be convicted in the abovementioned FIR. To buttress his arguments learned counsel for the Petitioner has taken me through the judgment discharging the accuseds under the MCOCA wherein the learned Additional Sessions Judge has held that the contention of the learned Special Public Prosecution that the murder of Vijay Singh Yadav was a case of contract killing is not substantiated. Reliance is placed on Nem Chand v. State, 1953 AIR(All) 99, Ram Ratan and another v. State, 1976 CrLJ 1799 and Abdul Raoof Alias Raoof Abdul v. State of Gujarat, 2002 4 GLR 3252.