SRIKANT JAIN Vs. STATE

JUDGEMENT

(1.) Challenging the impugned order dated 7th Oct., 2011 dismissing the application of the petitioner seeking directions for sending back the trial to the court of learned Chief Metropolitan Magistrate (CMM) Delhi, the petitioner prefers the present petition.

(2.) A brief background of the case before coming to the issue involved in the present petition is that RC No.3/81/CIU(A) was registered by the CBI for offences punishable under Sections 120B/380/411/414 Penal Code and Sec. 25(2) read with Sec. 14(3) of the Antiquities & Art Treasurer Act, 1972 (in short 'the Act' )on 26th Aug., 1981 and on completion of investigation charge-sheet was filed before the learned CMM. On 8th Feb., 1983 during the course of investigation, statement of Jhanna Lal who sought to turn as an approver was recorded by learned CMM. On 28th Feb., 1983 the charge-sheet and the complaint case were filed. On 1st March, 1983 cognizance of the offences was taken by the learned CMM. On 8th Jan., 1986 case was sent to the learned Metropolitan Magistrate by the learned CMM for recording of the statement of the approver when on 17th Dec., 1986 statement of Jhanna Lal was recorded as PW-1 by the learned Metropolitan Magistrate in the complaint case but not in the State case. On 28th Sept., 1987 both the State case and the complaint case were clubbed and directed to be tried together as State case. The learned Metropolitan Magistrate also observed that since the examination-in-chief of the approver had been recorded in the complaint case only so his examination-in-chief be recorded again on 1st Dec., 1987. However, later vide order dated 15th March, 1989 the learned Metropolitan Magistrate noted that there was no need of examining the approver again. On 8th Jan., 1990 the file was sent to the learned CMM as statement of the approver had been recorded by the learned Metropolitan Magistrate. On 11th Oct., 1996 charge was framed against the accused and on 6th Sept., 1999 the learned CMM sent the case for trial to the learned Additional Sessions Judge (ASJ) when the learned ASJ re-framed the charge on 15th Feb., 2011. On 30th April, 2011 Jhanna Lal the approver passed away without being examined and cross-examined before the learned ASJ. Intimation of death of Jhanna Lal was given to the Court on 26th July, 2014 and on the same day, petitioner filed an application seeking transfer of the trial to the Court of learned CMM which was dismissed by the impugned order dated 7th Oct., 2011.

(3.) Contention of learned counsel for the petitioner in the present petition is that since Jhanna Lal, the approver passed away and his statement during the course of trial was no more required to be recorded by the learned ASJ, the trial ought to have been transferred to the learned CMM which is the Court of competent jurisdiction to try the offences charged with. He contends that charge against the accused was framed by the learned ASJ on 15th Feb., 2011 and the information of death of Jhanna Lal was placed before the learned ASJ on 26th July, 2011 and on the same day the petitioner filed an application seeking transfer of trial to the learned CMM which was dismissed vide the impugned order dated 7th Oct., 2011. He further contends that the tender of pardon under Sec. 306 Crimial P.C. is always conditional and not absolute. Only in exceptional circumstances can the trial be conducted by the Court superior to the Court of competent jurisdiction and the conditions warranting such a trial by a superior Court do not exist, therefore, the Court of learned CMM should try the offences. He further states that aggrieved by the order dated 7th Oct., 2011 the petitioner preferred this petition in the year 2011 itself, however since the same could not be decided and the trial having not been stayed is at fag end therefore he does not press for de-novo trial but prays that even at this stage if the trial is transferred to the learned CMM he will not lose the right of filing an appeal before the learned ASJ which is a valuable right as held by the Supreme Court in A.R. Antulay Vs. R.S. Nayak (1988) 2 SCC 602. Learned counsel for the petitioner relies upon the decisions reported as 1989 Supp (2) SCC 77 State (Delhi Administration) Vs. Jagjit Singh, AIR 1994 SC 2420 Suresh Chandra Bahri Vs. Gurbachan Singh, 1995 Crl.L.J. 2866 M.A. Merchant Vs. State (CBI) and 2005 Crl.L.J. 3848 L.S. Asokan Vs. State of Kerala.