LAXMANBHAI KHUMAJI BAROT Vs. BALUBHAI PARSHOTTAMBHAI

JUDGEMENT

(1.) THESE three Miscellaneous Criminal Applications arise out of three criminal cases (1) Criminal case No. 2011 of 1979 on the file of the learned Metropolitan Magistrate 5 Court Ahmedabad wherein the two petitioners are the accused persons; (2) criminal case No. 2010 of 1979 on the file of the very Magistrate in which the petitioner is the accused person and (3) criminal case No. 2981 of 1979 also on the file of the same Magistrate in which the petitioner is the complainant. All the three cases arise out or a rather unusual incident which happened on 30/06/1979 in the campus where the courts of the Metropolitan Magistr- ates for the city of Ahmedabad are located. Petitioner No. 1 viz. L. K. Barot-of Miscellaneous criminal application No. 849 of 1979 who is also the petitioner in the remaining two applications was at the relevant time a P. S. I. attached the D. C. B; Ahmedabad; while petitioner No. 2 Radhuji Amthaji was a police constable attached to the very branch. In respect of this incident as alleged by the complainants of criminal case No. 2011 of 1979 and criminal case No. 2010 of 1979 the petitioners started assault on complainant Balubhai Patel that is-complainant in criminal case No. 2011 of 1979 just near the court of the learned Metropolitan Magistrate and when shouts were given and advocates and others rushed and when Nalinkant Shah Advocate tried to intervene petitioner Barot brandished a revolver and threatened to finish him and others. 2 In respect of this incident two complaints were filed one at the instance of Balubhai Patel for the offenses under secs. 323 506 (2) and 504 I. P. C. which was registered as criminal case No. 2011 of 1979 and process was issued by the learned Magistrate against the petitioners-Barot and Radhuji on the said complaint. Another complaint was filed at the instance of advocate Nalinkant Shah against petitioner-Barot only for the offences under secs. 307 506 (2) and 504 I. P. C. which was registered as criminal case No. 2020 of 1979 and process was issued for the offences under secs. 307 and 506 (2) against Barot along with a bailable warrant in a sum of Rs. 1 500 3 As against this Barot that is-the petitioner in criminal miscella- neous application No. 66 of 198) filed a complaint against six persons including the said Balubhai Patel and the said Nalinkant Advocate and after the investigation a charge-sheet was submitted against the accused and it was registered as case No. 2981 of 1970 for the offences under secs. 143 147 393 395 353 332 224 225 426 320 and 5C4 I. P. Code. It may be mentioned here that in criminal case No. 2010 of 1979 when process was issued under secs. 5C6 and 307 of the 1. P. C. the accused of that case that is-petitioner Barot-preferred special criminal application No. 98 to quash the proceedings started against him by issuing process. Rule was issued by this court limited to the issue of process for the offences under sec. 307 1 P. C. and when the matter came up for hearing before a Single Judge of this court (Bedarkar J ) the same was referred to a Divi- sion Bench and the Division Bench consisting of P. D. Desai and G. T. Nanavati JJ. has by its order dated 11/12/1979 discharged the rule. As one of the charges is under sec. 3G7 I. P. C. which is an offe- nce exclusively triable by a court of session the learned Magistrate is bound to commit the case to the sessions court at Ahmedabad and in view of the fact that all the three cases arise out of the same incident and there are cross cases the other cases are also likely to be placed for trial before the same Judge. 4 In view of this situation Mr. Supehia the learned Advocate appe- aring for the petitioners in all these applications presses only one point in support of the his case for transfer and that is-that the matters should be transferred to a competent court outside the area covered by the city and the District of Ahmedabad. The grounds on which the same is sought are mainly (i) that there is total absence of congenial atmosphere for fair and impartial trial if the same is conducted in the city of Ahmedabad or its rural areas in view of the fact that there was atmosphere of great tension in the criminal courts when the incident happened and feeling of hostility was displayed against the petitioners by the advocates practicing in the criminal courts as also by the members of the public being carried away by the exaggerated reports of the incident received by them and (ii) that in view of the bar being totally opposed to the petitioners on account of the incident and feeling of bitterness created in the minds of the members of the bar practicing in the city of Ahmedabad and rural areas against the petitioners the whole bar is disinclined because of the mutual understanding amongst its members to accept the petitioners brief because of the prejudice created against them resulting out of the incident which happened on 30/06/1979 and that almost all the members whom the petitioners approached have refused to defend the petitioners on one pretext on the other. 5 Mr. Supehia heavily relied on MRS. MANEKA SANJAY GANDHI AND ANOTHER V. MISS RANI JETHMALANI (1979) CR. L. J. 458 which covers three aspects; (i) grounds of substantial prejudice; (ii) non-availability of com- petent legal service and (iii) absence of congenial atmosphere for fair and impartial trial. In Maneka Gandhis case a request for transfer was turned down on all the three grounds on the facts of that case. But the Supreme Court did observe as under : Assurance of a fair trial is the first imperative or the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances Something more substantial mole compelling more imperilling from the point of vies of public justice and its attendant environ- ment is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. we have to test the petitioners grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so the process of justice should not harass the parties and from that angle the court may weigh the circumstances-. Now on this touchstone can it he said that this is a case in which there is something more substantial more compelling more imperilling from the point of view of public justice and its attendant environment in ex- istence to justify exercise of the courts power to transfer ? The answer is obviously no. It is true there was a tense atmosphere created in the criminal courts compound on the day of the incident and for a few days thereafter resulting in the bar being agitated and departmental action be- ing initiated against the petitioners complaints being filed against the peti- tioners and cross-complaints being filed by one of the petitioners against Balubhai and some advocates and others. It is also true that the incident received wide publicity in the local press. But it is now a matter of the past. Several months have passed since the incidents happened which was in June 1979 and in March 1980 we are far remote in point of time from the tenseness of the atmosphere which prevailed on the day of the incident and a few days thereafter which has completely abated long past. In the months that have passed following a few days of a surcharged atmosphere of transient tension nothing has happened which would Justify an apprehension that the required tranquility of atmosphere needed to hold a fair trial will in any way be disturbed. 6 It is also true that the Criminal Bar Association did pass a reso- lution denouncing the alleged conduct of the petitioners and supporting the stand taken by advocate Nalinkant Shah and others; but this was natural in the sense that the bar did feel strongly when they received the reports about some members of the bar being treated roughly and threa- tened by a revolver being brandished by the members of the police force. But this does not mean that the bar has given a mandate to ail its mem- bers not to appear for or defend the petitioners in the legal proceedings. The resolution does not say so. There is also nothing on record to justify a conclusion that in the City Sessions Court where the cases are likely to be tried now at this length of time the petitioners are rot likely to get the services of a suitable lawyer to defend them or to prosecute their cause against the accused against whom they have also set the legal machinery in motion. It is expected of every member of the bar that as has been observed at page 460 in Menaka Gandhis case (supra) popular frenzy or official wrath shall not deter a member of the bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. As a matter of fact the petitioners have been able to secure services of advocates from this very city in the proceedings before this court. However it there in any difficulty experi- enced by them in the conduct of their cases before the Sessions Court they can draw the attention of the court and I am sure the court will see that they are properly represented. I am also confident that the Ahmedabad Bar will not lag behind in maintaining the best traditions of the noble profession to which they belong and they will rise to the occasion and provide the required legal services to the petitioners. And if that does not happen the petitioners have the liberty to renew their application for transfer if the situation so demands. 7 The venue now charges to an entirely different campus. The case is not to be tried in the very campus where the incident has happened but it will now be tried in a court located in the campus where the City Civil and Sessions courts are situated. The initial tension and tenseness of the atmosphere have now subsided and if at this stage the parties were asked to go to a different place a few miles away from Ahmedabad it will cause untold hardships and inconvenience apart from lot oX expenses not only to the parties but also to the witnesses who are all from the city and who will have to undertake travels to a different city to give evidence in the trials if they take place elsewhere. 8 Giving an anxious thought to the relevant considerations applicable in such cases in my opinion this is not a fit case in which this court should order transfer of cases from Ahmedabad to another city as pra- yed by the petitioners. There is therefore no merit or substance in the applications and the result will be the following order : 9 Rule discharged in all the applications. Interim relief with regard to stay of proceedings to stand vacated.