Solely because an accused has filed an application for transfer, he is not required to express his disinclination. He is required under law to do his duty. He has to perform his duty and not to succumb to the pressure put by the accused by making callous allegations, the Court said.
Supreme Court has warned the Courts about “unscrupulous litigants” indulging themselves in court haunting and said that Trial Court judges are not expected to show unnecessary sensitivity to allegations of accused against them and recuse himself from the case. Apex Court bench of Justices Dipak Misra and Prafulla C. Pant set aside Gujarat High Court order which had directed the Principal Sessions judge to transfer the case from a particular Trial judge.
In this case, the accused had filed an application under Section 408 CrPC before Principal Sessions Judge, which was rejected by the Judge after calling for the remarks from the concerned Trial Court judge. On Appeal, the High Court directed the Principal District Judge to transfer the trial to the court of any other Sessions judge “to ensure that justice is not only done, but also seems to be done”.
Transfer order not on drop of a hat
The Apex Court held that an order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The court said power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial and there has to be a real apprehension that there would be miscarriage of justice.
Court haunting should not be allowed
The Court added that solely because an accused has filed an application for transfer, the Trial court judge is not required to express his disinclination, rather he is required under law to do his duty and not to succumb to the pressure put by the accused by making callous allegations. He is not expected to show unnecessary sensitivity to such allegations and recuse himself from the case. If this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process. The unscrupulous litigants will indulge themselves in court haunting. If they are allowed such room, they do not have to face the trial before a court in which they do not feel comfortable, the Bench said.
Cases can be transferred after commencement of Trial
The Apex Court, however affirmed the High Court view that Sessions Judge is empowered under Section 408 CrPC to transfer a case from one Additional Sessions Judge to any other Additional Sessions Judge in his Sessions Division after commencement of the trial.
Read the Judgment here.