ARUN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application for transfer under Section 407 of the Cr. P. C. 1973 given by the applicants who are facing trial in the Court of the Additional Sessions Judge, Nagpur under Sections 307, 326, 149 and 148 of the I. P. C. Along with three others, the applicants are the accused in Sessions Case No. 99 of 1975 where the trial commenced on 6-12-1976, The prosecution examined 10 witnesses, On 10-121976 the accused were examined and the case reached the stage under Section 232 of the Cr. P. C. The learned Additional Sessions Judge heard the prosecution and the defence on the point of acquittal and has passed the impugned order. This order Is titled 'judgment' and it runs into 12 paras covering six typed pages. The learned Additional Sessions Judge has come to the conclusion that there is evidence against the accused to show that they had committed the offence and, therefore, she asked the accused to enter upon their defence if they wanted.

(2.) IT is now alleged that by writing such a long order the learned Judge has already made up her mind and has come to a conclusion that the accused have committed the offence which thus prejudices the case of the accused so that even if they give defence evidence it would be difficult to make the Judge change her mind. It is alleged that this has created an apprehension in the mind of the applicants-accused. They say that the conclusions have already been arrived at and according to them in the interests of justice and fairplay it is necessary that the case be transferred from the Court of the Additional Sessions Judge, Nagpur, to some other Court. At the time of arguments a further request was made that only the operative order of transfer be communicated and the judgment dictated should be kept in a closed cover so that the transferee Judge should not be aware of the discussion working against the accused.

(3.) A look at the order would show that in the first five paras the prosecution story is summarised. Sixth para is devoted to the denial of the accused. The seventh para starts with the remarks that at that stage the learned Judge had to address herself to decide "whether there is any evidence to show that the accused had committed the offence. " Mr. Salve appearing for the applicants says that thereafter the learned Additional Sessions Judge has started appreciating the evidence in details so as to find out the positive case. Points regarding the omission if any in the first information report and the medical officer's report are considered, but side by side the learned Judge has also taken into consideration the attack made by the defence counsel against the prosecution version highlighting the infirmities in the depositions or failure to examine persons or the fact of the absence of bloodstains and the case regarding whether there is a shift in the spot of occurrence.