RAJENDRA GANDHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner is the accused in Sessions Case No. 6 of 1987 pending on the file of the Additional Sessions Judge Kolhapur (Shri B. D. Kadam), for the offence punishable under Section 376 I. P. C. This is his second petition under Section 407 (1) (a) and (c) Cr. P. C. for the transfer of the sessions case from Kolhapur to the Sessions Court at Greater Bombay or to any other Sessions Court in any district of Maharashtra at a reasonable distance from Kolhapur.

(2.) THE facts giving rise to the present petition are that the petitioner-accused was arrested on 24th September 1986 by Shahupuri Police-Station, Kolhapur, in C. R. No. 274 of 1986 which was registered on the same day on the report of the parents of one C, a minor girl (hereinafter referred to as "the minor girl"), who is alleged to have been raped by the accused. On the same day medical examination of the minor girl alleged to have been raped and that of the accused was conducted. The news of the alleged rape by the accused on the minor girl was published in the newspaper "dainik Sakal" on 25th September 1986. Thereafter there was lot of agitation at Kolhapur. While the accused was in custody his house was also stormed by a mob consisting of large number of persons from Kolhapur. Similarly, morchas were taken to the Civil Hospital, Kolhapur, and to the office of one Mr. J. J. Bardeskar, an Advocate from Kolhapur, who had appeared for the accused for moving for bail. Morchas were also taken to the Bar Association at the District Court, Kolhapur, and also at the residence of the said Mr. Bardeskar. There was lot of commotion at Kolhapur and all this was reflected in newspapers. The application of the accused for bail was rejected by the learned Additional Sessions Judge and ultimately he was released on bail by this Court on 28th October 1986 and while releasing him on bail at the request of the learned Public Prosecutor, this Court had directed the petitioner to remain out of Kolhapur and Shiroli, where the petitioner had his factory, about 13 kilometers from Kolhapur, for a period of 25 days. This was done because there was lot of commotion at Kolhapur against the petitioner and there was likelihood of breach of peace, and when this was brought to the notice of this court by the learned Public Prosecutor, the aforesaid direction was given by this Court to the petitioner while releasing him on bail. The charge-sheet was filed against the accused on 24th October, 1986 for the offences punishable under Sections 376 and 342 I. P. C. On 3rd January 1987 the case was committed to the Court of Session at Kolhapur. On 2nd February 1987 the petitioner moved Criminal Application No. 210 of 1987 in this Court for transfer of his case from Kolhapur. The hearing of that petition commenced before my learned brother Puranik, J. , on 28th April 1987 and continued till 29th April 1987. In between there was Summer Vacation and the further hearing was continued on 17th June 1987 and on that day the case was closed for judgement, and judgement was delivered on 30th November 1987 whereby the petitioner's application was dismissed. The petitioner moved the Supreme Court on 11th December, 1987 against the judgement and order of this Court dismissing his petition for transfer of his case from Kolhapur. That petition was heard and dismissed by the Supreme Court on 11th April 1988.

(3.) THE case of the petitioner-accused is that after his special leave petition was dismissed by the Supreme Court he approached some criminal lawyers in Bombay and elsewhere with a request to accept his brief and when they learnt about the agitation against him in Kolhapur, they expressed their reluctance to appear for him at Kolhapur. Ultimately the petitioner succeeded in engaging Shri R. D. Ovalekar, an experienced lawyer from Bombay. Shri Ovalekar accepted the brief and agreed to defend the petitioner at Kolhapur, and he stated at the time of accepting the brief that he should be assisted by some lawyer from Kolhapur. Shri P. K. Chougule, a practising lawyer from Kolhapur, was persuaded by the petitioner to accept his brief and to assist Shri Ovalekar. Shri Chougule agreed to assist Shri Ovalekar, but he did not agree to handle the case independently in view of the prevailing circumstances at Kolhapur. The petitioner further states that on 14th July, 1988 the case was fixed for framing charge. Shri Chougule appeared after consultation with Shri Ovalekar. On that day a charge under Section 376 I. P. C. was framed against the petitioner and his plea of not guilty was recorded. The case was then adjourned to 14th September 1988 for hearing, after considering the convenience of Mr. S. G. Samant, Advocate, appointed by the State as Special Public Prosecutor and the defence lawyer Shri Ovalekar. In the first week of August 1988 the petitioner contacted Shri Ovalekar to fix an appointment for visiting the scene of offence at Kolhapur and to have further discussion on the case. At that time Shri Ovalekar expressed his reluctance to appear in the case owing to threats of serious consequences administered to him on the telephone. When those threats were given, Shri Ovalekar was at Sangli and his whereabouts were some how or the other obtained by the persons who made the telephone calls. Shri Ovalekar told the petitioner that not only he received similar threats from some interested persons but he was advised by some lawyers and his other acquaintances to give up the brief. The threats were so menacing and intermittent that Shri Ovalekar apprehended serious trouble for himself both in the Court and its precincts as well as at his residence. Even some advocates who were acquainted with the affairs at Kolhapur advised him not to come to Kolhapur. The petitioner further states that he entreated Shri Ovalekar not to leave him in the lurch but be courageous enough to defend him at Kolhapur; but the learned advocate, apprehending danger to his personal safety, had no option but to return the brief. The petitioner requested Shri Ovalekar to confirm in writing what hesitated. Shri Ovalekar by his letter dated 17th August, 1988 addressed to the petitioner set out his reasons for his inability to appear in the case. The petitioner thereafter approached some lawyers with his brief, but none of them was willing to accept it.