Heard Mr. Sikandar B. Kochar, learned counsel for the applicant, learned AGA for the State and Mr. Anoop Trivedi, learned counsel for O.P. No. 2.
This transfer application has been moved under section 407 Cr.P.C. with prayer to transfer the entire proceedings of S. T. No. 123 of 2013, State Vs. Nirmal Singh Grewal and others, pertaining to Case Crime No. 2568 of 2012, under sections 452, 307 I.P.C., P.S. Kotwali, District Bareilly, from the court of Additional District & Sessions Judge, Court No. 1, Bareilly, to the court of Special Judge (Gangster Act)/ Additional District & Sessions Judge, Court No. 5, Bareilly.
The applicant had earlier moved a transfer application before the Sessions Judge, Bareilly, on 27.1.2016, which was rejected on merits vide order dated 29.4.2016, certified copy whereof has been filed as Annexure no. 5 to the affidavit filed in support of the instant transfer application.
It has been submitted by learned counsel for the applicant that the applicant together with his elder brother Karanpreet Singh Grewal and his father Nirmal Singh is facing trial for the offence under sections 452, 307 I.P.C. However, the police, in order to harass him and his family booked the applicant, his elder brother and father on the basis of the aforesaid trial and two other criminal cases pertaining to the years 1997 and 2008, under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, (hereinafter referred to as the Gangsters Act) vide first information report dated 25.12.2012. A gang chart was prepared and after investigation the police submitted charge sheet under sections 2/3 of the Gangsters Act. Subsequently cognizance was taken by the Special Judge (Gangsters Act), Bareilly, on 21.9.2013 and at present three prosecution witnesses have already been examined in the aforesaid trial under the Gangsters Act.
The submission of learned counsel for the applicant is that as per sections 7(3) and 8 of the Gangsters Act, S.T. No. 123 of 2013 pending in the court of Additional Sessions Judge, Court No. 1, Bareilly, should also be tried by the Special Judge Gangsters Act, Bareilly, where the applicant, his elder brother and father are facing trial under the Gangsters Act because it is one of the cases mentioned in the gang chart on the basis of which Gangsters Act has been imposed on the applicant, his elder brother and father.
Learned counsel for the applicant has placed reliance on the judgment dated 24.3.1998 delivered by this court in the case of Subhash Vs. State of U.P. in Criminal Misc. Writ Petition No. 835 of 1998 in which this court has held that if by a single act or omission the offender commits an offence under the general law and also under the Gangsters Act, both the offences should be tried together before the Special Court to avoid double jeopardy to the accused. The contention of learned counsel for the applicant is that the learned Sessions Judge, Bareilly, without keeping in view the law laid down by this court in the aforesaid case of Subhash (supra), has rejected his transfer application relying on the following two judgments of this court, which are completely inapplicable to the present case.
1. Mohd. Mashkoor Vs. State of U.P. 2010(2) JIC 2014.
2. Mahmood and another Vs. State of U.P., 2011(2) JIC 239.
Learned counsel for the applicant has next contended that the ground taken by the applicant for transfer of the trial of S.T. No. 123 of 2013 to the court of Special Judge (Gangsters Act), Bareilly, emanates from sections 7 and 8 of the Gangsters Act. However, the learned Sessions Judge, Bareilly, overlooked these provisions and has rejected the transfer application without considering that both the cases i.e. the case under the Gangsters Act and the case under section 452 and 307 I.P.C. relate to the same incident, hence being tried by separate courts, can also lead to conflicting judicial findings on the same facts.
It has further been argued by learned counsel for the applicant that one of the major reasons assigned for rejection of the transfer application by the learned Sessions Judge, Bareilly, is that the proceedings of S. T. No. 123 of 2013 has been expedited by the High Court and in case it is transferred, it will cause delay in disposal. The submission of learned counsel for the applicant is that the learned Sessions Judge, Bareilly, has failed to appreciate that the trial was directed to be concluded expeditiously in accordance with the law, which means that the legal rights of the parties cannot be throttled under the garb of expeditious trial.
Learned counsel for O.P. No. 2 and learned AGA have vehemently opposed the transfer application by arguing that the court below has rightly rejected the transfer application moved clearly the applicant by observing that the applicant is trying to prolong the proceedings despite several orders of Hon'ble High court to conclude the trial within a stipulated period and now the instant application has also been moved with the ulterior motive of delaying the disposal of the trial.
Learned counsel for O.P. No. 2 has submitted that the law laid down by this court in the case of Subhash (supra) has no application to the present case because in the case of Subhash (supra) the criminal proceedings were at the initial stage of investigation. Moreover, in the case of Subhash the High Court had either quashed the first information reports or had stayed the issuance of coercive process against the applicants on finding that due to political rivalry and to settle personal scores, the applicants were falsely implicated. The learned counsel for O.P. No. 2 has further submitted that on the contrary, in the present case, the trial under the substantive offences under sections 452 and 307 I.P.C. is already at the ripe stage as the prosecution evidence has been concluded and the date has been fixed for recording statements of accused persons under section 313 Cr.P.C. Moreover, there are several directions of this court for expeditious disposal of the sessions trial concerned vide orders dated 21.1.2013, 25.7.2013, 9.4.2014 and 23.7.2015 passed on Criminal Misc. Bail Application No. 364 of 2013, Criminal Misc. Bail Application No. 17956 of 2013, Criminal Misc. Application U/s 482 Cr.P.C. No. 3811 of 2014 and Criminal Misc. Application U/s 482 Cr.P.C. No. 20143 of 2015, respectively.
The further submission of learned counsel for O.P. No. 2 is that the applicant and his family members are trying to delay the disposal of the trial by moving several applications on flimsy grounds causing unnecessary delay in the trial in order to defy the directions issued by this court and that the applicant is adamant to undermine this court's orders of expeditious disposal of the trial and is misusing the process of law, hence this application be dismissed with costs.
Considered the rival submissions of learned counsel for both the parties. Before proceeding further, it appears appropriate to have a glance on the relevant legal provisions which are as under:-
Section 7(3) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, reads here as under:-
7. Jurisdiction of special court.- (3) Where it appears to any court in the course of any inquiry or trial in respect of any offence that the case is one which should be 'red by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court and thereupon such case shall be tried and disposed of by the Special Court in accordance with the provisions of this Act:
Provided that it shall be lawful for the Special Court to act on the evidence, if any, recorded by the Court in the case in the presence of the accused before the transfer of the case under this section:
Provided further that if the Special Court is of opinion that further examination of any of the witnesses whose evidence is already recorded in the case is necessary in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, it any, as it may permit, the witness shall be discharged.
Section 8 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, reads here as under:-
8. Power of special courts with respect to other offences.- (1) When trying any offence punishable under this Act a Special Court may also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial.
(2) If in the course of any trial under this Act of any offence, it is found that the accused has committed any other offence under this Act or any rule thereunder or under any other law, the Special Court may convict such person of such other offence and pass any sentence authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof.
Section 12 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, reads here as under:-
12. Trial by special court to have precedence:- The trial under this Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance.
A careful perusal of the aforesaid legal provisions clearly shows that none of the aforesaid provisions mandates that in any eventuality substantive offence would have to be tried by the Special Court in case a case under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, is pending there. Use of the word "may" in section 8(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, clearly indicates that the power is discretionary and it has to be exercised keeping in view the particular facts and circumstances of the case.
It is not disputed that the concerned Sessions Trial, the proceedings of which are sought to be transferred, is at the ripe stage of recording of statements of the accused under section 313 Cr.P.C. whereas the Special case under the Gangsters Act is pending at the stage of evidence and only three prosecution witnesses have been examined so far. It is also not disputed that this court has not only once but four times has directed the trial court to conclude the trial expeditiously by fixing it on day to day basis. Considering these facts and circumstances of the case the learned Sessions Judge, Bareilly, has rightly rejected the transfer application moved by the applicant by relying on the law laid down by this court in the case of Mohd. Mashkoor Vs. State of U.P. (supra) in which this court, under almost the same circumstances has held as under:-
"As said above here the trial has not started in the court of Special Judge, Gangster Act. On the contrary in the present case the trial under the substantive offence under Section 306, 406, 506 I.P.C. is already at a ripe stage and under the orders of this Court dated 02.02.2009 it was supposed to have conclude by May, 2009. The order of this Court for conclusion of the trial within the stipulated period, was passed even before the filing of the charge sheet under the Gangsters Act in July, 2009 and therefore, also the question of keeping the aforesaid trial under the substantive offence in abeyance does not arise. This order for expeditious trial has never been challenged. The aforesaid provisions cannot be construed to mean that in any situation the Special Court will have precedence and particularly when trial of substantive offence has been expedited by High Court even before filing of the charge-sheet under the provisions of Gangster Act."
The applicant has not made any personal allegation against the Additional Sessions Judge, where the concerned sessions trial is pending. There is no other ground for transfer of the sessions trial except that the proceedings under Gangsters Act has also been initiated against the applicant, his elder brother and father on the basis of S.T. No. 123 of 2013 along with two other earlier cases. Under this situation, there does not appear any chance of expeditious disposal of the case under the Gangsters Act and if S. T. No. 123 of 2013 is transferred to the Special Court for disposal along with special case it will certainly cause undue delay in the disposal of the sessions trial despite four orders of this court directing for its expeditious disposal, more so in view of the law laid down by Hon'ble Apex Court in Special Leave to Appeal (Crl) No. 24066 of 2013, Mohd. Rashid Vs. State of U.P., decided on 25.11.2013 in which the Hon'ble Apex Court has held that "the trial court should strictly comply with the direction issued by High Court and take effective steps to ensure that the trial be conducted on day to day basis and the presence of the witnesses be secured by adopting, if necessary, coercive means. The Administrative Judge of the District concerned should monitor the progress of trial proceeding in order to ensure that the trial court does not defy the orders issued by High Court with impunity."
Speedy trial is the quintessence of the code, which cannot be withheld years together on flimsy grounds. Considering the peculiar facts of this case the case of Subhash (supra) has no application to this case.
Keeping in view of the facts and circumstances of the case and the relevant legal provisions, there does not appear any merit in the transfer application, which is liable to be dismissed and is hereby dismissed accordingly.
Order Date :- 8.7.2016 Pcl