LAXMANBHAI HARDAS AHER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This transfer application has been filed seeking direction to transfer Special Cases Nos. 14/94, 1/95, 3/95 and 5/95 of TADA cases from the file of Designated Judge, Jamnagar to the file of any other Designated Court having jurisdiction.

(2.) The petitioner along with 28 others is facing trial in the court of Designated Judge (Addl. Sessions Judge, Jamnagar for offence punishable under Secs. 3, 4 and 5 of the Terrorist and Disruptive Activities (Preventive) Act, 1987 (hereinafter referred to as 'TADA'), Secs. 25(1)(A), (1) (AA), 1(b) of the Arms Act and Sec. 9(b) of Explosives Act and Secs. 3, 4, 5 and 6 of the Explosive Substance Act, read with Secs. 121, 122, 123, 120-B and 34 of the IPC. The main ground of the transfer is that Mr. Rahul H. Sharma learned Designated Judge was one of the Prosecutors engaged by the Central Bureau of Investigation to conduct cases against various persons involved in the Bombay bomb blast cases. The say of the petitioner is that the previous background of the learned Judge as Prosecutor engaged by the CBI has created a reasonable apprehansion in the minds of the accused persons that they may not get fair trial. It is also stated that the learned Judge himself has said in one of his orders that the present trial is counter part of the Bombay bomb blast case. The learned Judge, in his comments, has stated that he joined the Gujarat Judicial Services with effect from 24.8.1995. Prior to this, he was engaged by the CBI as the Special Public Prosecutor for conducting Bombay blast case in which 189 accused persons were facing trial before the Designated Judge, Arther Road Jail at Bombay. He was one of the members of the Team of the Prosecutors, who were engaged by the CBI for different assignments. He has stated that he took active part in conducting the prosecution on behalf of the CBI. He however, submitted that the facts, circumstances, charges, time and place involved in the Bombay bomb blast cases are not similar and same to the present case. He has further submitted that the accused persons are not common in both the cases. The Bombay bomb blast case was being tried for lending the arms and ammunition, RDX and other explosive substances at village Shekhadi, Diggy, Jetty and Masla of Raigadh district in Mahrashtra. He has further submitted that the accusations also involved explosions caused by the accused persons at different places at Bombay City and its suburbans on 13/03/1993. In the said cases, the accused persons are charged for transporting contrabands from the Diggy, Jetty, Shekhadi and Masla to Bombay City. In the said case, a huge quantity of hand-grandes, AK-46 and AK-56 riffles, catridges etc. were allegedly recovered from the possession of the accused persons facing trial in the Bombay blast case at Bombay. Whereas in the present TADA case, 29 accused persons are facing the trial and about 24 accused persons are absconding. They are charged for lending the Arms and explosives including the hand-grenad, bombs etc, at Village Gosabara in Porbandar area under the conspiracy area hedged within the territorial jurisdiction of the Jamnagar Court. He has given further details with respect to the saying that he has been conducting the trial fairly without any prejudice.

(3.) I have heard the learned Advocate Mr. A.H. Mehta for the petitioner and the learned APP. The question is whether the trial of the present case has any relevance with the Bombay blast case. If the trial of the present case has any connection with the Bombay blast case, then it would not be fair or it can be said that there is substance in the apprehension of the accused persons that they may not get a fair trial. It is the human nature whether he is a Judge or anybody else, he is not likely to forget the knowledge which he has acquired, the view which he has developed of the knowledge so acquired and the inference consciously or sub-consciously which he has drawn from the said knowledge. The possibility cannot be ruled out that such knowledge may form a part of the case which may carry consciously or sub-consciously against the accused persons. It is well established that justice should not only be done but it must also appears to be done. The learned Judge has admitted that he has actively participated as Public Prosecutor in Bombay blast case. He has however, stated that the said case has no relevance or connection with the trial of the present case. It may not be necessary to examine the entire evidence and to find out if there is any relevance with the present case with the Bombay blast case. Suffice it to say that the learned Judge after analysing the entire evidences and hearing the learned Advocates for the parties, passed a detailed order dated 26.7.1996. In para 99 of the said order, the learned Judge has said :