1. The petitioner is the accused is 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) & (c) Cr.P.C. for the transfer of the sessions case from Kolhapur to the Sessions Court at Greater Bombay or to any other Session 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 judgment, and judgment 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 judgment 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 he sitated. 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.
4. According to the petitioner-accused, in the circumstances which had arisen after the final dismissal of his transfer petition and the events which took place thereafter, it was impossible for him to engage any lawyer, much less a senior lawyer, to appear for him at Kolhapur. The petitioner further states that the respondent-State engaged an experienced advocate from Bombay on special fees to conduct the prosecution against him at Kolhapur. It indicates the importance attached by the State to the case and as such it is but fair and proper and in the interest of justice that the petitioner is given an equal opportunity of being defended by a senior lawyer. The petitioner submits that the very fact that Shri Ovalekar has been intimidated and finally dissuaded from appearing in the case establishes that public excitement and agitation against the petitioner has been still smouldering and that a desperate attempt was made to remove Shri Ovalekar from the case about a month before the trial was to start so as to leave the petitioner in the lurch and incapacitate him in searching another competent lawyer, much less a lawyer of his choice. Shri. P. K. Chougule has also refused to appear for the petitioner any more in view of Shri Ovalekar's inability to lead him. Thus the petitioner submits that in those circumstances it is impossible for him to defend himself satisfactorily in the case wherein he is charged with commission of a serious offence. The petitioner, therefore, seeks transfer of the case from Kolhapur either to Greater Bombay or to some other district place.
5. The respondent-State filed an affidavit in reply of Manohar Vanappa Katamble, P.I., Shahupuri Police Station, Kolhapur, now attached to C.I.B., Kolhapur. That affidavit is at pages 67 of the paper-book. P.I. Katamble in his affidavit in reply states that the findings given by my brother Puranik, J., in his judgment in the earlier application of the petitioner-accused for transfer would indicate that the petitioner was prepared to be defended by Shri Bardeskar, who is a leading criminal lawyer of Kolhapur, and that he withstood all pressures and was going to appear for the petitioner in spite of pressures to the contrary. On 12th September, 1988 when the matter was fixed for hearing at Kolhapur, Shri Chougule, who is a senior and able lawyer of the local Bar and incidentally the local Bar Association was prepared to conduct the case, and on the footing that he would conduct the case on the next date of hearing, the learned Additional Sessions Judge, Kolhapur, agreed to grant him adjournment, otherwise the learned Judge was not willing to consider the question of adjournment. He states that the learned Additional Sessions Judge noted that Shri Ovalekar had not filed Vakalatnama and as such the only advocate who had taken upon himself, by filing Vakalatnama to act, appear and plead on behalf of the petitioner, was Shri Chougule. He states that Shri Chougule had willingly accepted the assignment when he made the aforesaid statement and the petitioner, who is English knowing, was very much in the Court and he never protested against the statement of Shri Chougule that he would defend the accused. P.I. Katamble further states that Shri Ovalekar might have received such threats as he says; but on 14th July, 1988 charge was framed and before the charge was framed, Shri Ovalekar had telephonic discussions with Mr. S. G. Samant, Special Public Prosecutor, and he had asked for accommodation as to the date of hearing, and then he agreed that the next date of hearing should be 12th September, 1988 and that he would be in a position to conduct the case. It was to suit the convenience of Shri Ovalekar that 12th September, 1988 was fixed as the next date of hearing. According to P.I. Katamble, it is highly significant that although the entire populace knew that Shri Ovalekar was to come to Court on 12th September, 1988 and the fact became known on 14th July, 1988, from 14th July, 1988 till 17th August, 1988 nobody threatened Shri Ovalekar. It is significant that nowhere in the letter dated 17th August, 1988 from Shri Ovalekar to the petitioner does he state as to when he received telephonic calls threatening him with dire consequences in case he appeared in Kolhapur on behalf of the petitioner. P.I. Katamble states that it is indeed significant that although such threats were received, Shri Ovalekar does not seem to have lodged a complaint with the police or for that matter with any higher authority seeking protection. P. I. Katamble states that he has every reason to believe that the aforesaid threats must have been manipulated by the petitioner himself in order that he should avail himself of some observations made by my brother Puranik, J. P.I. Katamble further states that as far as the petitioner was concerned, in his view Shri Bardeskar was a highly competent lawyer who could definitely lead the defence and his Lordship Puranik, J., observed that in the absence of any document in the form of a letter from Shri Bardeskar on record, it was not possible to accept that Shri Bardeskar was pressurized and that he might not be able to appear for the petitioner and conduct the defence could not be accepted and that the petitioner felt that such a letter from Shri Ovalekar could do the trick. He further submits that he had no reason to doubt that such threats might have been received by Shri Ovalekar, yet he had reason to believe that the petitioner was keen on pressing his transfer application not finding any argument to support it, has been clutching at the last straw which is provided by the observations made by his Lordship Puranik, J. According to P.I. Katamble, there is no reason for anyone from Kolhapur to threaten Shri Ovalekar. He also further states that it may be that although such threats were given to Shri Ovalekar, they were not genuine but must have been manipulated by the petitioner. Thus, according to P.I. Katamble, Shri Bardeskar and Shri Chougule whom the petitioner had engaged were in a position to conduct the case and the threats alleged to have been given to Shri Ovalekar have been manipulated by the petitioner himself. According to P.I. Katamble, the prayer of the petitioner for transfer of his case should also be negatived for the simple reason that the minor girl who is 8 years old and who is the victim of the assault by the petitioner will have to be taken out of the surroundings and made to go over the place in order to give evidence, a fact which is not desirable, regard being had to the fact that in such matters the child should not be put to unnecessary inconvenience and the same would be the case of the parents of the child.
6. Shrikant Yeshwant Deshpande, father of the minor girl, has also filed his affidavit and opposed the prayer of the petitioner-accused for transfer. According to him, the present application is another series of dilatory tactics adopted by the petitioner to delay the trial so that in course of time the memories may fade away and valuable evidence is lost. He submits that Shri Chougule has never expressed his unwillingness to represent the petitioner. According to him, no threats have been given to the local lawyer who is ready to represent the petitioner and as such it can be inferred that the threats alleged to have been given to Shri Ovalekar are not genuine and have only been given to ensure either that the trial is delayed or it is transferred to another jurisdiction which will cause great prejudice to the prosecution, as witnesses will not come to depose, and thereby impede the course of justice. At the end he states that the prosecution intends to lead about 30 witnesses and most of them are from Kolhapur. Prime among them are the minor girl and her mother. He states that the mother of the minor girl, on account of the fact that nearly two years have passed and no progress has taken place in the course of the trial, is suffering from high blood pressure and other ailments. According to him, if the application for transfer is granted, it is very likely that the large number of witnesses who would otherwise be available and remain present in Kolhapur would not come forward to depose in favour of the prosecution, thus impeding the course of justice. The petitioner has filed his affidavit dated 7th October, 1988 in reply to the affidavit of P.I. Katamble dated 5th October, 1988 and the affidavit of Shrikant Yeshwant Deshpande, father of the minor girl, dated 6th October, 1988. According to the petitioner, the affidavit filed by P.I. Katamble is in the nature of arguments and it is undesirable that such kind of arguments by mentioned in the affidavit of a police-officer. He submits that there is no question of granting police protection to Shri Ovalekar or to any other advocate. The question is whether he would be able to conduct the defence without any fear of reprisal not merely during the trial but also before and after the trial. He submits that it is not the nature of protection to be given to a defence lawyer that is relevant but the frame of his mind during the trial and after the trial that is relevant. The fear entertained by Shri Ovalekar is a reasonable apprehension arising in the mind of any advocate.
7. After the earlier application of the petitioner-accused for transfer of the case was dismissed, he had engaged Shri R. D. Ovalekar for defending him in the Sessions Court at Kolhapur. Shri Ovalekar had also a talk with the Special Public Prosecutor Shri S. G. Samant and taking into consideration the convenience of both of them, the case was adjourned to 12th September, 1988 for recording of evidence. According to the petitioner, when he contacted Shri Ovalekar in the first week of August 1988 for fixing his appointment for visiting the scene of offence at Kolhapur, Shri Ovalekar told him that he had received threats of serious consequences and he had also made inquiries of his friends and acquaintances, who advised him to give up the brief. The petitioner states that his efforts to persuade Shri Ovalekar to conduct his defence, notwithstanding threats to his personal safety, failed. Thereafter he asked Shri Ovalekar to confirm it in writing. Shri Ovalekar by his letter dated 17th August, 1988 addressed to the petitioner set out the reasons for his inability to appear in the case. That letter is at Ex. 'D' at page 84 of the paper-book. It reads thus :-
" 17th August, 1988
Dear Mr. Gandhi, (that is, the petitioner)
This is to confirm that I will not be able to appear for you in the Kolhapur Court. You may make some other arrangement for your defence. I will speak to Mr. Shamrao Samant (the Special Public Prosecutor) to consent for an adjournment on 12th September, 1988 if another lawyer will need further time.
2. While at Sangli I received telephone calls threatening me with serious consequences if I appeared at Kolhapur on 12th. The fact that I received calls at Sangli clearly indicates that my movements are being followed.
3. Thereafter when I returned from Sangli, I received repeated calls of the same nature and also calls from some acquaintances and lawyers who advised me not to unnecessarily invite trouble. I am told that I may not be troubled in the Court precincts but I may be harassed and tortured at the place of residence. I thereafter enquired with some Advocates who know the state of affairs at Kolhapur and whom I personally knew. They advised me not to come to Kolhapur for that case and get myself involved in trouble. All my friends have pressed me not to undertake the defence from the point of view of personal security and safety. I fully believe that it is my duty to defend an accused but at this age I cannot be oblivious to personal safety.
4. You may therefore engage another lawyer."
(Bracketed portions supplied.)
8. Mr. S. G. Samant, the learned Special Public Prosecutor, contends that the petitioner-accused has managed the aforesaid letter from Advocate Shri Ovalekar in order to move again this Court for the transfer of his case. He submits that had Shri Ovalekar received threats Sangli or at his residence in Bombay, he would not have failed to lodge a complaint with the police, but no such complaint was lodged by Shri Ovalekar with the police, He also submits that no dates have been given in the letter when those threats were received by Shri Ovalekar. According to him, the threats, if any, might have been arranged by the petitioner himself, and in support of his contention he very heavily relied on the affidavit dated 5th October, 1988 by P.I. Katamble on 6th 1988. It has been verified by P.I. Katamble to his own knowledge and belief. The affidavit runs into eight paragraphs and the verification at the end reads as follows :
"I Manohar Vanappa Katamble, Police Inspector attached to Shahupuri Police Station, now attached to L.I.B., Kolhapur, today in Bombay, do hereby state on solemn affirmation that what is stated in the foregoing affidavit is true to my own knowledge and beliefs and I believe the same to be true."
How an affidavit should be prepared and verified has been mentioned in Chapter VII of the Criminal Manual issued by this Court. The relevant paragraphs are 1 to 7.
Paragraph 5 states how the affidavit should be verified. It reads thus :
"5. (1) Every affidavit should clearly specify what portion of the statement is made on the declarant's knowledge and what portion of the statement is made on his information or belief.
(2) When a particular portion is not within the declarant's own knowledge but it is stated from information obtained from others, the declarant must use the expression 'I am informed' and, if it is made on belief, should add 'I verily believe it to be true.' He must also state the source or ground of the information or belief, and give the name and address of, and sufficiently describe for the purpose of identification, the person or persons from whom he had received such information.
(3) When the statement rests on facts disclosed in documents or copies of documents procured from any court or other person, the declarant shall state the source from which they were procured and his information, or belief, as to the truth of the facts disclosed in such documents."
Their Lordships of the Supreme Court considered the question of proper verification of affidavits in A. K. K. Nambiar v. Union of India, of the report their Lordships of the Supreme Court
observed thus :-
"The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."
The reading of the affidavit of P.I. Katamble shows that it is nothing but written arguments and mostly based on imaginary facts and inferences. It is difficult to visualise how P.I. Katamble could say, "I say and submit that I have no reason to doubt that such threats might have been received yet I have reasons to believe that the Petitioner who is keen on having the case transferred and is not finding any argument to support it, has been clutching at the last straw which is provided by the observation made by his Lordship Mr. Justice Puranik that in the absence of any letter from Shri Bardeskar he was not prepared to give countenance to the submission of the Petitioner. I say that as a matter of fact, regard being had to the nature of accusation against the Petitioner, it does not appear that any man from Kolhapur would have any reason to threaten Shri Ovalekar ............ I say that the aforesaid variance in the version given in the petition and that given in the letter of Shri Ovalekar will only show that the aforesaid variance appears between the two versions because it may be that although such threats were given to Shri Ovalekar, the threats were not genuine but must have been manipulated by the Petitioner." I need not burden the record by quoting other similar portions from the affidavit. Suffice it to say that it is mostly based on the imagination of the investigating officer and the imagination has run amuck and went to the extent of saying that threats received by Shri Ovalekar might have been manipulated by the petitioner. It is surprising that an officer of the status of an Inspector of Police assisted by the Special Public Prosecutor should make such affidavit.
9. Mr. Anand Grover, Advocate, intervened and appeared for Shrikant Yeshwant Deshpande, father of the minor girl, who has filed his affidavit. He submitted that he did not doubt what is stated by Shri Ovalekar in his letter, but according to him, neither the State nor the prosecution has done anything for dissuading Shri Ovalekar from conducting the defence of the petitioner accused and, therefore, the petitioner is not entitled to claim transfer of the Sessions Case from Kolhapur to some other place.
10. Mr. P. R. Vakil, learned Counsel for the petitioner-accused, contends that the bona fides of a highly respected senior advocate Shri Ovalekar cannot be doubted. According to him, it is preposterous to contend that the threats received by Shri Ovalekar must have been managed by the petitioner. According to him, the petitioner had engaged Advocate Shri Ovalekar for conducting his defence and he was not going to lose him by giving him threats on telephone. He also submits that Shri Ovalekar has not acted only on the threats received by him, but he himself made inquiry of some advocate who knew the state of affairs at Kolhapur and whom Shri Ovalekar personally knew and after making such inquiry of his acquaintances and friends he apprehended danger to his personal security in going to Kolhapur to conduct the defence of the petitioner. Mr. Vakil submits that the petitioner could not have managed the advocates, friends and acquaintances of Shri Ovalekar to advise him not go to Kolhapur to conduct this case. On giving anxious consideration to the submission made by the learned Counsel for the petitioner, I find that by no stretch of imagination can it be said that the threats received by Shri Ovalekar might have been manipulated by the petitioner. The bona fides of Shri Ovalekar in writing the letter dated 17th August, 1988 cannot be doubted, even for a moment. It is highly improbable, may impossible, that a senior advocate of the status of Shri Ovalekar would write a false letter only to oblige and enable the petitioner to make a second application for transfer of the case from Kolhapur. It was contended by the learned Special Public Prosecutor that there is no affidavit of Shri Ovalekar on record and in the absence of such an affidavit it could not be accepted that whatever stated in his letter dated 17th August, 1988 is true. I am unable to agree with the learned Special Public Prosecutor. The petitioner has stated on oath that he received the letter dated 17th August, 1988 from Shri Ovalekar to confirm what he had stated to him when they met during the first week of August 1988. As stated earlier, Shri Ovalekar had contacted the learned Special Public Prosecutor and the date of hearing on 12th September, 1988 was fixed taking into consideration the convenience of both of them. On 14th July, 1988 charge was to be framed and the news appeared in the local newspaper "Dainik Pudhari" that Mr. Shamrao G. Samant would be appearing for the prosecution and Mr. Ovalekar, Advocate, would be appearing for the defence and thereby people knew that Shri Ovalekar would be appearing for the defence. The petitioner in the earlier transfer petition had set out the events that took place at Kolhapur from the day he was arrested on 24th September, 1988 till he was released on bail by this Court on 20th October, 1988. He had also annexed cutting of the newspapers in which the news of those events appeared, to his petition. A copy of that petition and the newspaper cuttings thereof are at Ex. 'A' at page 17 of the paper-book. It is not necessary in this petition to go through all those events. At the same time what was done by the Citizens Action Committee formed for getting the petitioner duly punished for the act alleged to have been committed by him and to dissuade the members of the Bar from accepting the brief of the petitioner will have to be considered. On perusal of the news items from the extracts annexed to the petition it can be gathered that the Citizens Action Committee had taken a morcha to the house of Shri Bardeskar, Advocate, who was engaged for moving the bail application of the petitioner. All sort of slogans were shouted and he was asked to withdraw his power for the petitioner. Some of the members from the procession even wanted to enter into the house of Shri Bardeskar and see his wife. When Shri Bardeskar did not allow them to enter into his house and see his wife, they shouted slogans and behaved indecently. In this connection, the photo of the morcha appeared in the 8th October, 1986 issue of "Dainik Pudhari", which is at page 64 of the paper-book. Similarly, a morcha was taken by the Citizens Action Committee to the District Bar Association, Kolhapur, and there also slogans were shouted against Shri Bardeskar and the advocates were urged not to accept the brief of the petitioner. It is true that the Bar Association resolved not to be pressurized by morchas and it declared that it was the duty of the advocates to defend the accused. This was certainly to the credit of the Bar Association. At the same time the advocates also have the instinct of self-preservation like all other beings and the very fact that a large number of persons from the city had been to the Bar Association and also had been to their offices and houses would certainly weigh on their mind and they would not be able to defend the petitioner as efficiently as they would have done had the normal conditions prevailed. The petitioner was at that time in police custody and yet the Citizens Action Committee had taken a morcha consisting of a large number of persons to his house and there was stone throwing and two persons were injured. The situation at Kolhapur was so explosive and volatile that when this Court on 24th October, 1986 ordered the release of the petitioner on bail, the learned Public Prosecutor submitted before the Court that there was an excitement prevailing in Kolhapur and there was likelihood of breach of peace and he desired that the petitioner should not remain either in Kolhapur or at Shiroli where he had his factory, and thereupon this Court directed the petitioner to remain out of Kolhapur for a period of 25 days. When the threats received by Shri Ovalekar are considered against the above background, it cannot be said that Shri Ovalekar was not right in refusing to go to Kolhapur to defend the petitioner.
11. The next point for consideration is whether the petitioner-accused can insist on the services of Shri Ovalekar to defend him in the Sessions case pending against him. The learned Counsel for the petitioner contends that the State did not depend on the learned Public Prosecutor at Kolhapur for conducting the prosecution against the petitioner, and the State appointed a senior and leading criminal lawyer, Shri Shamrao G. Samant from Bombay, to conduct the prosecution against the petitioner. Therefore, there was nothing wrong for the petitioner to engage an eminent criminal lawyer, Shri Ovalekar from Bombay, to defend him. He submits that it is the fundamental right of the petitioner to have a lawyer of his choice to defend himself. The learned Special Public Prosecutor, on the other hand, contends that there are senior advocates at Kolhapur and the petitioner had actually engaged Shri Bardeskar and Shri Chougule and, therefore, if for any reason Shri Ovalekar cannot go to Kolhapur to defend him, he has no right to ask for the transfer of the case from Kolhapur to any other place. In support of his contention he relied on the decision of the Supreme Court in Mrs. Maneka Sanjay Gandhi v. Miss. Rani Jethmalani, . In that case the respondent had filed a criminal
complaint in the Court of the Metropolitan Magistrate at Bombay for defamation against the petitioner No. 1, the editor of a monthly and daughter-in-law of the former Prime Minister. During the course of the prosecution a petition was made for a transfer of the case from Bombay to Delhi on grounds such as substantial prejudice, non-availability of competent legal service and absence of congenital atmosphere for a fair and impartial trial. Their Lordships of the Supreme Court rejected the petition for transfer, as they did not find any substance in the grounds urged by the petitioner No. 1. Their Lordships of the Supreme Court have laid down the law on the point at pages 469 and 470 (of AIR) : (at p. 460 of Cri LJ) of the report thus :-
"Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's (that is, Mrs. Maneka Sanjay Gandhi's) grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.
"One of the common circumstance, alleged in applications for transfer is the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors especially when an alternative venue will not seriously handicap the complainant and will mitigate the serious difficulties of the accused. In the present case the petitioner (that is, Mrs. Maneka Sanjay Gandhi) claims that both the parties reside in Delhi and some formal witnesses belong to Delhi; but the meat of the matter, in a case of defamation, is something different. The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom. They belong to Bombay in this case and the suggestion of the petitioner's counsel (that is, the learned Counsel for Mrs. Maneka Sanjay Gandhi) that Delhi readers may be substitute witnesses and the complainant may content herself with examining such persons is too presumptuous for serious consideration.
"Now to the next ground. The sophisticated processes of a criminal trial certainly require competent legal service to present a party's case. If an accused person, for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain court the whole Bar, for reasons of hostility or otherwise, refuses to defend an accused person - an extraordinary situation difficult to imagine, having regard to the ethics of the profession - it may well be put forward as a ground which merits this Court's attention. Popular frenzy or official wrath shall not deter a member of the Bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. Counsel has narrated some equivocal episodes which seem to suggest that the services of an efficient advocate may not be easy to procure to defend Mrs. Maneka Gandhi (that is, the petitioner No. 1). Such glib allegations which involve a reflection on the members of the Bar in Bombay may not be easily accepted without incontestible testimony in that behalf, apart from the ipse dixit of the party. That is absent here. It is difficult to believe that a person of the position of the petitioner (No. 1) who is the daughter-in-law of the former Prime Minister, wife of a consequential person and, in her own right, an editor of a popular magazine, is unable to engage a lawyer to defend her, while, as a fact, she is apparently represented in many legal proceedings quite competently".
(Bracketed portions supplied.)
The facts of the present case are quite different. In the present case there were morchas and shouting of slogans against Shri Bardeskar, Advocate, who was engaged for moving the bail application for the petitioner. When the prosecution engaged an eminent criminal lawyer from Bombay to conduct the prosecution against the accused, the petitioner also engaged an eminent lawyer, Shri R. D. Ovakekar from Bombay, to conduct his defence. Shri Ovalekar received threats from the persons from Kolhapur and on inquiry by him he found that it was not safe for him to go there to conduct the defence and, therefore, he refused to conduct the defence. If the learned Counsel for the petitioner contends that if a criminal lawyer of the stature of Shri Ovalekar is not willing to go to Kolhapur to defend the petitioner as his personal safety is in danger, no other leading criminal lawyer would agree to go to Kolhapur to defend the petitioner and the petitioner, though he approached so many eminent lawyers, could not persuade them to come down to Kolhapur to defend him. Thus the decision relied on by the learned Special Public Prosecutor is distinguishable on facts. Though the law on the point is well settled, it has to be applied to the facts of each case.
12. The learned Counsel for the petitioner-accused in support of his contention that in case due to local conditions the petitioner is not able to engage a Counsel of his choice to defend himself, he is entitled to claim transfer of the case from that place to some other place, relied on the decisions in In re S. R. Narasimlu, 1972 Cri LJ 434, and M. S. Prakasa Rao v. State of Andhra Pradesh, 1987 Cri LJ 24. In the first case the petitioner could not secure the services of any advocate at Karimnagar to defend him and he entertained a reasonable apprehension as regards the fair treatment of his case at the hands of the learned Munsif Magistrate. While considering those grounds His Lordship Lakshmaiah, J., of the Andhra Pradesh High Court at page 436 of the report observed thus :
"The petitioner categorically states that the could not secure the services of any advocate at Karimnagar to defend him and that he entertains a reasonable apprehension as regards the fair treatment of his case from the hands of the learned Munsif Magistrate. I am not convinced with the latter ground but, so far as the former ground is concerned, this is a fit case where I find that having regard to the object of criminal jurisprudence unless the accused is satisfied that he is defended properly the proceeding should not be allowed to proceed and in this case the accused swears to an affidavit to the effect that he found exceedingly difficult to get an advocate to defend his case and that he approached several advocates but nobody was taking up his case in order to defend him. In view of that the very object and purpose of criminal jurisprudence will be defeated or frustrated if the accused is compelled to proceed in the absence of proper defence."
The petitioner's request for transfer of the case was granted and the case was transferred from Karimnagar District to the Chief City Magistrate, Hyderabad.
13. The next case relied upon by the learned Counsel for the petitioner-accused is M. S. Prakasa Rao v. State of Andhra Pradesh, 1987 Cri LJ 24 (supra). In that case the petitioner was Circle Inspector of Police. He was entrusted with the detailed inquiry into the missing of a girl aged about 6 years. In the course of the inquiry the compounder of one Dr. Gupta gave a complaint on 8th June, 1985 that some identified persons took away Dr. Gupta by force in an Ambassador car. The case was registered on the basis of the said complaint. After the compliant was filed there was tension in the town and a meeting was organised by the members of the local Vysya community and the case was entrusted to C.B., C.I.D. There were rumours that Dr. Gupta was killed and the police had a hand in it. The disappearance of Dr. Gupta, the reputed doctor, in the wake of kidnapping a minor girl from her family generated emotional reactions in the public. This was followed by charge-sheeting the Circle Inspector of Police as the first accused and the police constable as the other accused. Before the charge-sheet was filed several statements appeared in newspapers for judicial inquiry and it was also published in newspapers that the Home Minister was coming personally to inquire into the incident which had brought disgrace to the Police Department. It was stated that by that time thousands of people had gathered at court premises and atmosphere became hostile and antagonistic to the accused. It was further stated that the advocates appearing for the accused were working with great stress and strain due to the hostile atmosphere prevailing in the court. While he was going to the Court on 31st January, 1986 one person, who claimed to be a relation of the deceased, accosted him outside the Court premises and demanded him to withdraw from the case, threatening that dire consequences would follow if he did not heed him and that he would see his end and he further received an unsigned threatening letter on 8th February, 1986 from Vizianagaram and in that letter it was stated that the Sessions Judge was their man and the result would be in their favour and he was also called upon to withdraw from the case failing which he would not return alive. The mother of one of the accused engaged Shri K. V. Krishnarao, Advocate, Vizianagaram. That advocate also received a threatening letter and he expressed great anxiety and reluctance to continue in the case. There were processions and meetings organised by the residents and demand for judicial inquiry was made. Questions were asked in the Assembly and heated exchange took place there. The allegations against the police personnel for participating in perpetuation of crime gave rise to a tremendous uproar among the people and it could not be gainsaid that it received wide publicity in newspapers expected to reflect the public opinion. On those facts Rama Rao. J., of the Andhra Pradesh High Court allowed the petition for transfer of the case and the case was transferred from the Sessions Court, Vizianagaram, to the Sessions Court, Srikakulam. While discussing the law on the point his Lordship at pages 28 and 29 of the report observed thus :-
"It is appropriate to conjure up two cardinal maxims in criminal jurisprudence that no person should be condemned and punished unless the person is heard and guilt is proved beyond reasonable doubt. Another relevant maxim is that justice should not only be done but appear to have been done. The suspicion even if it is strong and bordering on cogent evidence does not displace the necessity of proof beyond shadow of doubt. The justice is rooted in confidence and any apprehension in the minds of participants dims the vision of justice and limps the administration of justice. The allegation of police personnel involving in the murder of a reputed medical practitioner in the town necessarily provokes a righteous indignation and emotional outbursts. The tense feeling laced by suspicious and emotional upsurge should not be permitted to cloud the impartial atmosphere and equanimity in the court and should not give rise to apprehensions in the minds of the accused that they are likely to be denied full-fledged enquiry and trial. The tense atmosphere in the town and court, threatening letters to the advocates, gesticulations and shouting at the advocates in the court premises and the impelling necessity of the Circle Inspector of Police engaging an advocate from Bhimavaram, a distant place from Vizianagaram, and the fear of parents of the Circle Inspector of Police to attend the court abundantly disclose that the accused are labouring under apprehension regarding the trial with trappings of equanimity and cool atmosphere. The apprehension or even the possibility of apprehension is sufficient to tarnish the image and vision of justice."
Regarding the publicity in the press by displaying photos, Rama Rao, J., observed at page 29 of the report thus :-
"The role of the press in mirroring and shaping public opinion, structuring political consciousness, nurturing legal awareness and disseminating and stepping up social and cultural values is highly commendable. It may be during investigation and trial in judicial matters the wide publicity at times may result in embarrassment to the judges, advocates and witnesses in certain sensitive matters but this cannot be considered as a base to discourage or contain publicity. However, it is desirable that dose of publicity in certain sensitive issues at the stage of investigation and trial should be mild and tempered and minimised."
I am in respectful agreement with the observations of Rama Rao, J., of the Andhra Pradesh High Court reproduced above.
14. The learned Special Public Prosecutor contends that the Bar Association at Kolhapur had passed a resolution disapproving the activities of the members of the Citizens Action Committee who were bringing pressure on the members of the Bar not to accept the brief of the petitioner-accused and who were bringing great pressure on Shri Bardeskar, Advocate, to give up the brief of the accused and, therefore, the petitioner cannot complain that he cannot get an advocate of his choice from the members of the Bar at Kolhapur. He submits that Shri Bardeskar at the earlier stage and later on Shri Chougule were engaged by the accused. According to him, they were the advocates of his choice and, therefore, now the petitioner cannot be heard that Shri R. D. Ovalekar, whom he engaged, was a Counsel of his choice and as he is unable to come to Kolhapur on account of the threats he had received on telephone, the petitioner cannot claim transfer of the case from Kolhapur to any other district place or Greater Bombay. The learned Special Public Prosecutor contends that the only requirement of law is that an accused should have the assistance of an advocate, that he cannot claim that he should have the assistance of a particular advocate from a different place and in case that advocate is not able to conduct the case on account of the alleged threats to his personal safety it is not in the interest of justice to transfer the case. He submits that a criminal case should normally be conducted at a court within the jurisdiction of which the offence took place and it is only in rare circumstances when free and fair trial is not possible at that court that the transfer of the case could be granted. The learned Special Public Prosecutor referred to Constitutional Law of India by H. M. Seervai, Third Edition, Volume 1, page 872, wherein the learned author observed thus :
"It is submitted that Art. 22(1) furnishes a surer foundation for the proposition laid down by Bhagwati J. For, that Article provides that an arrested person shall not be denied 'the right to consult, and be defended by, a legal practitioner of his choice'. The italicised words that is, the underlined words were presumably inserted to prevent the accused being denied the choice of Counsel as happens in Communist countries. But the right to consult and be defended by Counsel is conferred as a fundamental right by Art. 22(1) and that, coupled with the reasonable procedure required by Art. 21, would put the State under an obligation to make legal assistance available to a needy accused person detained in custody."
The learned Special Public Prosecutor contends that the above passage indicates that only the assistance of a legal practioner is necessary for defending the person arrested on a criminal charge, but it is not necessary that such legal practitioner should be of his choice. He submits that under S. 303, Cr.P.C. the accused has been given the right to be defended by a pleader of his choice, but for the indigent accused the provisions are contained in S. 304, Cr.P.C. and the advocates who are appointed for indigent persons are from the panel prepared by the court and they do not get fees equal to the fees the legal practitioners engaged by the accused get and, therefore, there cannot be any equality between the advocate engaged by an accused and the advocate engaged by the court under the rules framed under S. 304, Cr.P.C. to defend an indigent accused. The learned Special Public Prosecutor submits that the principle of due process of law laid down in Ozie Powell v. State of Alabama, (1932) 287 US 45, 53 S Ct 55, 84 AIR 527, 77 Law Ed 158, is not applicable in India. In support of his contention he relied on the decision of the Allahabad High Court in Hansraj v. State, . In that case the conviction of the applicants-accused was set aside, as they were not given the assistance of legal practitioners. The relevant observations of the learned single Judge of the Lucknow Bench of that High Court appear at page 1269 (of Cri LJ) : (at p. 643 of AIR). They read thus :-
"In the present case it is not disputed that no information had been given to the accused persons about the date of the trial nor were they told that under Art. 22 of the Constitution and S. 340 of the Code of Criminal Procedure (1898) they had a right to consult a legal practitioner and to be defended by him. Nor were they told that if they made any statement which was damaging to their interest the same statement may be used against them.
"Having regard to these provisions and to what has been held in similar circumstances in the decisions cited above, I am of opinion that the fundamental right given to the applicants (accused) under Art. 22 of the Constitution and the right further conferred upon them, though similar in nature, under S. 340 of the Code of Criminal Procedure, had in a sense been denied to them when the prosecution adopted such a hot-haste in having the trial held of two batches of these persons on the 30th of March, 1955 (that is, the day following the date of incident), and of another two batches on the following day within the jail precincts. The trial was therefore vitiated."
In that case no assistance at all of legal practitioners was given to the accused and, therefore, it was held that their trial was vitiated. As there was no assistance of a legal practitioner at all, there was no question of assistance of a legal practitioner of the choice of the accused in that case.
15. The American doctrine of due process of law propounded in Ozie Powell v. State of Alabama (supra) was considered by the Supreme Court in Ranjan Dwivedi v. Union of India, . Their Lordships of the of the Supreme Court at pages 626 and 627 of the (of AIR) : (at Pp. 1055-56 of Cri LJ) report propounded the law thus :-
"The traditional view expressed by this Court on the interpretation of Art. 22(1) of the Constitution in Janardhan Reddy v. State of Hyderabad, that 'the right to be defended by a
legal practitioner of his choice' could only mean a right of the accused to have the opportunity to engage a lawyer and does not guarantee an absolute right to be supplied with a lawyer by the State has now undergone a change by the introduction of the Directive Principle of State Policy embodied in Art. 39A by the Constitution (Forty-Second) Amendment Act, 1976, and the enactment of sub-section (1) of S. 304 of the Code of Criminal Procedure, (1973). It was in this case that the court observed that the American rule enunciated in the case of Powell v. Alabama, (1932) 77 Law Ed 158 (supra), founded on the doctrine of 'due process' was not applicable to India and that under Art. 22(1) there was no absolute right to an accused to be supplied with a lawyer by the State. There has been a definite shift in the stance adopted by the Court by its decisions in Maneka Gandhi v. Union of India, , E.
P. Royappa v. State of Tamil Nadu, and R. D.
Shetty v. International Airport Authority of India,
. In Maneka Gandhi's case, supra, the Court
observed that the requirement of compliance with natural justice was implicit in Art. 21 and that if any penal law did not lay down the requirement of hearing before affecting him, that requirement would be implied by the Court so that the procedure prescribed by law would be reasonable and not arbitrary procedure. The procedure which was 'arbitrary, oppressive or fanciful' was no 'procedure' at all. A procedure which was unreasonable could not be said to be in conformity with Art. 14 because the concept of reasonableness permeated that Article and arbitrariness is the antithesis of equality guaranteed under Art. 14. It is difficult to hold in view of these decisions that the substance of the American doctrine of 'due process' has not still been infused into the conservative text of Art. 21.
"Although in the earlier decisions the Court paid scant regard to the Directive on the ground that the Courts had little to do with them since they were not justiciable or enforceable, like the Fundamental Rights, the duty of the Court in relation to the Directives came to be emphasized in the later decisions which reached its culmination in Kesavananda Bharati v. Union of India, laying down certain broad propositions. One of
these is that there is no disharmony between the Directives and the fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble. The Courts therefore have a responsibility in so interpreting the Constitution as to ensure implementation of the Directives and to harmonize the social objective underlying the Directives with the individual rights. Primarily, the mandate in Art. 39A is addressed to the Legislature and the Executive but insofar as the Courts of Justice can indulge in some judicial law-making within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by this mandate.
"Read with Art. 21, the Directive Principle in Art. 39A has been taken cognizance of by the Court in M. H. Hoskot v. State of Maharashtra, , State of Haryana v. Darshana Devi,
and Hussainara Khatoon v. Home Secretary, State of
Bihar, to lead to certain guidelines in the
administration of justice. One of these is that when the accused is unable to engage a counsel owing to poverty or similar circumstances, the trial would be vitiated, unless the State offers free legal aid for his defence to engage a lawyer to whose engagement the accused does not object. This more or less echoes the moving words of Sutherland, J., in Powell's case, supra. 'The right to the aid of counsel,' wrote Sutherland, J., 'is of a fundamental character.' In this country (i.e. United States of America) 'historically and in practice', a hearing has always included 'the right to the aid of counsel when desired and provided by the party asserting the right'."
Their Lordships further observed at page 628 (of AIR) : (at Pp. 1056-57 of Cri LJ) of the report as follows :
"In recent years, it has increasingly been realized that there cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge laid and unless he has competent professional assistance. The Law Commission in its Fourteenth Report Volume I on the subject 'Reform of Judicial Administration' made certain recommendations for State aid. One of those was that 'representation by a lawyer should be made available at Government expense to accused persons without means in all cases tried by a Court of Session'. This recommendation has now been codified in sub-section (1) of Section 304 of the Code of Criminal Procedure, (1973)".
Their Lordships also observed at page 629 (of AIR) : (at p. 1057 of Cri LJ) of the report that in case the fee to be paid to the advocate engaged by the Court for the indigent accused is not adequate, the High Court has ample power to fix a reasonable amount as fee payable to the Counsel appearing for the accused in the facts and circumstances of the case.
16. Articles 21 and 22 of the Constitution confer a fundamental right and give a fundamental guarantee. It is, therefore, the duty of the Courts to see that the right is kept fundamental and that the fullest scope is given to the guarantee, Clauses (1) and (2) of Article 22 of the Constitution lay down the procedure that has to be followed when a man is arrested. They ensure four things; (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by a legal practitioner of his choice, (c) right to be produced before a Magistrate within 24 hours, and (d) freedom from detention beyond the said period except by order of the Magistrate. Articles 20, 21, and 22 of the Constitution enshrine the valuable rights of the accused. It is a cardinal principle of administration of justice that an accused must be presumed to be innocent till his guilt is proved and he is convicted by the Court of competent jurisdiction. The Courts have to see that a person accused of any crime gets full opportunity to defend himself. Clause (1) of Article 22 of the Constitution reads thus :
"22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice."
The language used in Article 22(1) of the Constitution is so plain and clear that it does not admit of any other interpretation than what it means of plain reading. It has been stated in clear terms that the accused is entitled to be defended by a legal practitioner of his choice. Therefore, it can never be contended that an accused cannot choose a legal practitioner to defend himself. The right of an accused person to defend himself by a Counsel of his choice does not come to an end when he engages a Counsel. It is open to him to reconsider his decision and to engage another Counsel of his choice. If he indicates his desire to change the Counsel, the Court trying his case is under an obligation to provide him a fresh opportunity for this purpose. Any other view taken could render the right as wholly illusory.
17. In view of the law indicated above, the contention of the learned Special Public Prosecutor that as Shri Bardeskar and Shri Chougule from Kolhapur Bar Association were engaged by the petitioner-accused, he could not again engage Shri R. D. Ovalekar and as Shri R. D. Ovalekar was not able to come down to Kolhapur for some threats received by him, the petitioner cannot claim transfer of his case from Kolhapur to some other Court. Shri Bardeskar was engaged by the accused at the initial stage for moving a bail application for him. After his application for transfer was rejected, the petitioner engaged Shri P. K. Chougule to assist Shri R. D. Ovalekar at the trial of the accused. In this connection, a reference may be had to the letters by Shri Bardeskar and Shri P. K. Chougule to Shri P. R. Vakil, Advocate for the petitioner. The letter addressed by Shri Bardeskar to Shri P. R. Vakil is dated 12th April, 1987. Mr. P. R. Vakil states that this letter was with him while the earlier transfer application of the petitioner was argued by him in this Court. The learned Special Public Prosecutor, however, repudiates the above submission of Mr. P. R. Vakil. The letter reads thus :
"My Dear Shri Vakil,
I am very much thankful to you for filing a transfer application for transfer of the case of Rajendra Gandhi outside the Kolhapur District. Going through the case papers and relevant newspapers you will find for the proper justice, it is necessary that in any circumstances, the case must be transferred outside the Kolhapur District. Due to the Morchas and press reports, deputations, not only accused was harassed but his family members were also disturbed. Though I was representing the case of Rajendra Gandhi (that is, the petitioner-accused herein) in the Court they were not satisfied in meeting me only but they created disturbance to my residence also. If the case will be heard at Kolhapur I feel that due to the Morchas, deputations and tense situations no advocate will be able to represent him in peaceful mood and it will affect on imparting proper justice also. So I feel, prayer for the transfer to the place like Bombay which is far away from Kolhapur will be proper and if the case is transferred proper and fair justice will be done to the case."
(Bracketed portion supplied.)
The letter dated 26th September, 1988 addressed by Shri P. K. Chougule, Advocate, from Kolhapur, to Mr. P. R. Vakil, Advocate, reads as follows :
"My client Shri Rajendra Gandhi (that is, the petitioner-accused herein) approached me few days before the date on which the charge was framed. He told me that he has engaged one Senior Advocate Shri Ovalekar from Bombay to conduct his case. He further told me that advocate Ovalekar desired that he should be assisted by some local advocate. He requested me to appear in this matter to assist Advocate Ovalekar, to which I agreed.
The date on which the charge was framed, Advocate Ovalekar did not attend the Court. I had failed my Vakalatnama on that day. The date of hearing was fixed on September, 12th which, I was told, suited advocate Ovalekar.
Some time before September, 12th my client told me that advocate Ovalekar won't come on 12th September, as threats were given to him on phone. He further told me that he was submitting an application for transfer to the Hon. High Court on this count. Immediately I submitted an application to the Addl. Sessions Judge bringing these facts on record. However, the Hon. Judge passed an order that necessary order would be passed on September 12th. On September 12th I applied for an adjournment. In the said application I had submitted that advocate Ovalekar has written a letter to the client informing him his inability to appear in the matter as the threats were given to him on phone when he was at Sangli. I had also submitted that an application for transfer is filed in the Hon. High Court.
The Hon. Addl. Sessions Judge observed that he had not received any stay order from the High Court. He further observed that advocate Ovalekar has not at all appeared in the matter and it was desirable that I should proceed with the matter. I submitted to the Court that the client had not given me necessary instructions in the matter and therefore adjournment should be granted for three weeks. Within this period I submitted that either stay order would be brought from the Hon. High Court or my client would make necessary alternative arrangement or I would personally conduct the matter. Then the Addl. Sessions Judge granted one week's time and the matter was fixed on September 19th.
In the meantime it was reported that the Hon. High Court has granted interim stay. Now the next date is fixed on October 1st. Please do the needful in the matter."
(Bracketed portion supplied.)
In the same connection the order passed by the learned Additional Sessions Judge on 12th September, 1988 needs to be reproduced. It reads as follows :
"Similar type of application at Ex. 7 was presented by the accused on 5-9-1988 before this Court. It is clear from the record of the case that Shri Ovalekar has not filed his Vakalatnama on behalf of the accused till this date. The Senior Counsel Shri P. K. Chougule has filed his Vakalatnama on behalf of the accused. That Vakalatnama is at Ex. 6. Shri P. K. Chougule is undoubtedly senior advocate practising in Courts at Kolhapur. He is engaged by the accused as the advocate of his choice. Shri P. K. Chougule has also submitted before me that since the accused wanted to engage Shri Ovalekar to defend his case, he did not take necessary instructions from the accused for conducting this case. He has further submitted that in order to take the necessary instructions from the accused for preparing the defence, some time will be required by him. He has assured this Court in clearest terms that on the adjourned date he will conduct the case on behalf of the accused if the case is not stayed by the High Court on the ground stated in the application. The learned Special Public Prosecutor Shri Samant has submitted that he has no objection to grant the adjournment till 19th September, 1988. However, he has urged that the hearing of the case may please be conducted from the adjourned date. Considering the personal difficulty of Shri P. K. Chougule, the learned defence counsel, I am of the view that the hearing of the case be adjourned till 19th September, 1988.
Hence the case is adjourned till 19th September, 1988."
18. The learned Special Public Prosecutor contends that as Shri P. K. Chougule had given an undertaking before the learned Additional Sessions Judge on 12th September, 1988 that he would conduct the case on the next date and as he was the advocate of the choice of the petitioner-accused, the petitioner cannot now turn round and contend that he would like to be defended by Shri R. D. Ovalekar whom he has engaged for conducting his defence. I am unable to agree with the learned Special Public Prosecutor. As is evident from the letter of Shri P. K. Chougule and also the order of the learned Additional Sessions Judge dated 12th September, 1988, Shri P. K. Chougule was engaged by the petitioner only to assist Shri R. D. Ovalekar. The petitioner cannot be forced to have himself defended at the trial by Shri P. K. Chougule alone, only on the ground that Shri P. K. Chougule had stated before the learned Additional Sessions Judge that he would conduct the case in case stay was not granted by this Court on the application of the petitioner. On the application of the petitioner, stay was granted by this Court and, therefore, it cannot be said that Shri P. K. Chougule is bound by the statement made by him before the learned Additional Sessions Judge and he should conduct the defence on behalf of the petitioner.
19. The learned Special Public Prosecutor contends that at the hearing of the earlier transfer application filed by the petitioner-accused the learned Advocate-General appearing for the respondent-State had inter alia submitted that a year had elapsed since the date of the incident and there was no indication of any subsisting agitation. He had also submitted that the circumstances of 1986 were not still alive so as to affect the trial, and those submissions were accepted by my learned brother Puranik, J., and, therefore, the petitioner's case that when his case was posted for hearing, some interested persons gave threats on telephone to his advocate. Shri R. D. Ovalekar while he was at Sangli and later on also at his residence in Bombay and thus those persons dissuaded Shri R. D. Ovalekar from defending him in Kolhapur Court, cannot be accepted. He points out that after the charge-sheet against the petitioner was submitted on 24th October, 1986, there was no agitation against the petitioner at Kolhapur. The learned Special Public Prosecutor submits that he had appeared in the Court of the learned Additional Sessions Judge at Kolhapur on 14th September, 1987 when charge was framed and the news of framing of the charge appeared in the newspaper 'Sakal' dated 14th July, 1987 and in the news item it was mentioned that Mr. Shamrao Samant would be appearing for the prosecution and Mr. R. D. Ovalekar, Advocate, would be appearing for the defence. He also submits that Mr. P. R. Vakil, Advocate, appeared and argued for the petitioner in the earlier transfer petition and he had been to Kolhapur on 6th April, 1988 at the invitation of the Rotary Club to deliver address on the subject relating to woman and law. He submits that no threats were given to Mr. P. R. Vakil and no demonstration was staged against him when he visited Kolhapur on 6th April, 1988. According to the learned Special Public Prosecutor, this clearly indicated that the agitation against the petitioner had completely died down and the case of the petitioner that in the first week of August, 1987 threats were given to his Advocate Shri R. D. Ovalekar could not be relied upon. Mr. P. R. Vakil, learned Counsel for the petitioner, submits that there was no reason for the people at Kolhapur to stage demonstration against him when he had gone to Kolhapur at the invitation of the Rotary Club to address that club on the subject relating to women and law. The learned Counsel submits that the Citizens' Action Committee was very much active and they had stage demonstration and dharna before the Bar Council and office and house of Advocate Shri Bardeskar and had also gone in a morcha to the Civil Hospital and had force a Civil Surgeon Dr. Hoshing to have the second medical examination of the minor girl after five days of the incident. According to him, those members of the Citizens' Action Committee had also staged demonstrations when the petitioner was produced for remand and when his bail application was being argued before the learned Additional Sessions Judge, He submits that normally such agitations do not in any way influence the judicial equilibrium of the Judges and Magistrates, but there are exceptions to this rule, and he referred to the order dated 2nd October, 1986 passed by the learned Additional Sessions Judge Shri Rairikar while rejecting the petitioner's application for bail. It reads thus :
"In the instant case the medical evidence of the first doctor who examined shows that the hymen was not ruptured but when again the examination was carried out, it was found that there was a tear and hymen was ruptured. This circumstance is enough to indicate the possibility of tampering (sic) the witnesses as it is said that money makes Mayor (sic) go. We have to consider whether the Mayor (sic) should be allowed to go. In this case the possibility of investigation being tampered and the judicial process being impeded and subverted also cannot be ruled out. The circumstances of the case indicate in what heinous manner the offence has been committed. If the persons are immediately released on bail in such offences, the general impression created in the society is likely to bring down the lower estimation the law and order situation of the State also."
It is not necessary to comment on what the learned Additional Sessions Judge has stated while rejecting the bail application of the accused. The reading of the order itself speaks a lot. It is true that there was no agitation after the charge-sheet was filed against the accused. It may be mentioned that when the accused was released on bail by this Court, at the instance of the Public Prosecutor, to avoid law and order situation at Kolhapur, this Court had directed the petitioner to remain away from Kolhapur and his factory at Shiroli, 13 kilometers away from Kolhapur. The learned Counsel for the petitioner contends that the petitioner had submitted his transfer application in this Court on 2nd February, 1987 and the hearing of that application in this Court commenced on 28th April, 1987 and it continued up to 29th April, 1987 and again it was resumed, after the Summer Vacation, on 17th June, 1987 and on that day the hearing was concluded and the judgment was delivered on 30th November, 1987. The petitioner had moved the Supreme Court on 11th December, 1987 and his special leave petition was dismissed on 11th April, 1988. According to the learned Counsel, as the proceedings before this Court and the Supreme Court were pending during the aforesaid period, there was lull at Kolhapur, but on that account it cannot be said that the agitation against the petitioner had completely died down and there was no chance of its revival. He submits that as soon as it was announced in newspapers that charge against the accused was framed and Shri R. D. Ovalekar was to appear for defending him, the members of the Citizen's Action Committee became active. According to him, some of those persons must have given the threats to Shri Ovalekar referred to by him in his letter to dissuade him from appearing for defending the accused. He submits that taking into consideration the conduct of the members of the Citizens' Action Committee from the date of the incident, it is clear that they wanted that no legal practitioner should accept the brief of the accused and for that purpose they had staged demonstrations and morchas at the office of the Bar Association at the District Court, Kolhapur, and also at the office and house of Shri Bardeskar, Advocate. He was given threats and called names by the mob, but Shri Bardeskar stood fast and did not give up the brief. As stated earlier, he was engaged for moving an application for bail. The Citizens' Action Committee was formed for agitating against the accused and the agitation, as has been observed by my learned brother Puranik, J., at paragraph 12 of his judgment dated 30th November, 1987 in Criminal Application No. 210 of 1987, was to see that the accused was detained, that he was not released immediately on bail and that if the investigation was completed uninfluenced by rich persons like the accused, he should be tried and punished. It is further observed, "It is apparent that the members" representations stopped appearing after the accused was charge-sheeted. Anxiety in the mind of the public was absolutely set at rest when the charge-sheet against the accused was put up." My learned brother Purnaik, J., at paragraph 17 of his judgment observed, "Now that a year has elapsed since the date of the incident and there is no indication of any subsisting agitation I do not think that the circumstances of September, 1986 are still alive so as to affect the trial. Whatever apprehension the petitioner may have had is certainly not a reasonable apprehension which would entail the transfer of the case."
20. After the petitioner-accused's application for transfer was rejected by this Court and the appeal filed by the petitioner was dismissed by the Supreme Court, the petitioner engaged himself for arranging for his defence and for his defence he engaged an eminent criminal lawyer from Bombay, Shri R. D. Ovalekar, to match the learned Special Public Prosecutor Shri Shamrao Samant, a leading criminal lawyer from Bombay. It appears that after the news of Shri Ovalekar coming to Kolhapur to defend the accused was published on 14th July, 1988, the members of the Citizens' Action Committee became active. Since the beginning they wanted that no advocate should accept the brief of the accused and for that purpose they had staged demonstrations as indicated above and, therefore, it could be reasonably inferred that those very persons must have extended threats on telephone to Shri Ovalekar. It is not expected that there would be agitation by holding demonstrations or public speeches every day till the petitioner is convicted. The agitation will be only when there is some immediate object before the public to agitate. From the fact that there were no agitations against the petitioner from the time charge-sheet was filed till charge was framed against him, it cannot be necessarily inferred that the agitation against the petitioner had completely died down and there was no chance of its revival. The very fact that Shri Ovalekar, an eminent criminal lawyer, who had accepted the brief of the petitioner, on receiving the threats on telephone and on making inquiry with some advocates and his well-wishers at Kolhapur, found that his going there for defending the case was fraught with danger to his personal safety, clearly indicate that the agitation against the petitioner has not died down and it may revive any time as soon as the trial commences at Kolhapur.
21. It is the fundamental right of an accused to be defended by a Counsel of his choice. In the present case the petitioner-accused has engaged Shri R. D. Ovalekar, Advocate, from Bombay. The state did not allow the prosecution to be conducted by the Public Prosecutor attached to the Session Court, Kolhapur, but they have appointed a Special Public Prosecutor from Bombay. It shows that the State attaches great importance to the case against the petitioner. Under such circumstances, it cannot be said that the petitioner is not right in insisting on being defended by an equally eminent criminal lawyer Shri R. D. Ovalekar. It is of fundamental importance that not only justice is done but it must also appear that justice is being done. In the circumstances of the present case, there is every reason for the petitioner to apprehend that he may not get justice unless he is allowed to be defended by an advocate of his choice. The relevant provisions of Section 407, Cr.P.C. read as follows :
"407. (1) Whenever it is made to appear to the High Court -
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice."
It is the fundamental right of the petitioner under Article 22(1) of the Constitution of India to be defended by a Counsel of his choice. He has engaged Shri R. D. Ovalekar for his defence and Shri Ovalekar was to conduct his defence in the Sessions Court at Kolhapur, but, as stated earlier, he has received serious threats to his personal safety in case he appears for the petitioner in the Court at Kolhapur. Therefore, he expressed his inability to defend the petitioner in the Sessions Court at Kolhapur. His apprehension appears to be reasonable when considered against the background set out above. After giving anxious consideration to all those facts and circumstances of this case, I find that it is expedient for the ends of justice to transfer this case from the Sessions Court at Kolhapur to the Sessions Court at Greater Bombay.
22. It was contended before me by the learned Special Public Prosecutor that there were as many as 33 witnesses in this case, which included the minor girl and her parents, and those witnesses are likely to be inconvenienced in case the case is transferred from Kolhapur to Bombay. Some inconvenience is always bound to be there when there is a transfer of a case from one Court to another, but when the ends of justice do demand, cases are transferred from one Court to another. There is a mighty State power at the back of the prosecution. The State can afford all facilities to the minor girl and to her parents for residence at Bombay. Arrangements for other witnesses can also be made. I hope that the State shall make arrangements for the minor girl and her parents at some State guest-house at Bombay during the period they are required to be present at Bombay for giving evidence before the Court of Session.
23. In the result, the petition is allowed. Sessions Case No. 6 of 1987 pending before the learned Additional Sessions Judge, Kolhapur, is transferred from that Court to the Sessions Court, Greater Bombay. The learned Sessions Judge, Greater Bombay, may himself try the case or may allot it to one of the Additional Sessions Judges working in that Court. The learned Sessions Judge or the Additional Sessions Judge to whom the case is allotted shall see that the case is posted for hearing and recording of evidence commences within two months of the receipt of the writ. The rule is thus made absolute.
24. The learned Special Public Prosecutor at this stage applies for staying the enforcement of this order for a period of eight weeks to enable him to approach the Supreme Court. The application is granted and the operation of this order is stayed for eight weeks.
25. The learned Special Public Prosecutor submits that as the case involves a question of great legal importance, leave to appeal to the Supreme Court be granted. I do not think that a question of great legal importance, not already considered by the Supreme Court, is involved in this case. Hence the prayer for leave to appeal to the Supreme Court is rejected.
26. Order accordingly.