KAMLESH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The petitioner Smt. Kamlesh is the daughter of Shri Itwari Lal deceased, who was filed this application under Section 407 (2) of the Code of Criminal Procedure for the transfer of Sessions Trial No. 17-S/7 of 1983 to any other Sessions Judge from the Court of the Sessions Judge, Solan.

(2.) It is stated in the application that Shri Itwari Lal deceased is the father of the petitioner. It is pointed out that in the early hours of the night between 10th and 31st May, 1983, the house of the father of the petitioner was attacked by respondents 2 to 17 and the father of the petitioner was murdered. The FIR is stated to have been recorded at the instance of the petitioner at Police Post, Solan City. The challan was presented on 29th August, 1983 and the learned Sessions Judge fixed 6th of September, 1983 for the consideration of the charge. According to the petitioner, the case was subsequently fixed for 27-9-83 for framing of the charge at Nahan. The learned sessions Judge on 27-9-1983 is stated to have framed the charge under Section 304 Part- I Indian Penal Code besides other sections, but the charge under Section 302 Indian Penal Code had been dropped. A revision petition is stated to have been filed in this Court which was ultimately disposed of by a judgment dated 11-10-83 in Cr. Rev. No. 88/83. According to the judgment, the learned Sessions Judge was directed to consider the matter afresh. Consequently, the learned Sessions Judge by an order dated 22-11-83 framed the charge under Section 302 Indian Penal Code besides other sections and fixed 14th December, 1983 for recording the prosecution evidence.

(3.) It is contended on behalf of the petitioner that her brother, Shri Kamal Prakash, has been attending the court on every hearing and had some talk also with the Presiding Officer of the Sessions Court. His affidavit has been also annexed. In his affidavit, Shri Kamal Prakash who is the son of the deceased has affirmed that on November 22, 1983, when the hearing of the case was fixed at Nahan, the learned Sessions Judge enquired from him about his identity and on his disclosure, the -learned Sessions Judge put more searching questions about his family members. The learned Sessions Judge is stated to have told him that they are no doubt Harijans but are trouble makers. It is further stated to have been observed by the learned Sessions Judge that they have been arranging meetings at Solan against the Public Prosecutor and the Court and also meeting Ministers at Shimla against the Sessions Judge. It is further alleged that the learned Sessions Judge asked him that if they have any complaint against him, they should tell him there and then. It is also alleged that the learned Sessions Judge told him that they are at liberty to do any thing but after all the case is to be decided by that court. It is alleged that the learned Sessions Judge further informed that he was to proceed on leave and he wanted to dispose of the case finally before that. According to Kamal Prakash, from the behaviour, talk and demeanour of the learned Sessions Judge during the last hearing in the case, he had given a clear impression of apprehension that the complainant-party will not get justice from that court. It is asserted that the learned Sessions Judge was very much annoyed by the revision petition filed by the State against the dropping of the charge under Section 302 Indian Penal Code. It is pointed out that the learned Sessions Judge is under the impression that the State was approached by the complainant party to move the High Court by way of revision against the charge and that the learned Sessions Judge is bent upon to teach a lesson to the complainant-party. It is further asserted that the persons who are defending the accused, being their relatives, are stationed at Solan and are openly proclaiming that the accused-persons would be acquitted and nobody could touch their little finger as they would get a clear acquittal from the Sessions Court.