Himanshu Singh Sabharwal vs State Of Madhya Pradesh & Ors
By Chinmayee Behera
Case No: Transfer Petition (Crl.) 175 of 2007
Petitioner: Himanshu Singh Sabharwal
Respondent: State Of Madhya & Ors
Bench: J. Dr. Arijit Pasayat and J. P.Sathasivam
Judgment: Judgement Transfer Petition (Crl.) No. 175/2007 with Writ Petition (Crl.)No. 173 of 2006
BACKGROUND OF THE CASE:
Transfer Petition (Crl.) No. 175 of 2007 was filed by petitioner Himanshu Singh Sabharwal who is the son of late Prof H.S. Sabharwal. The writ petition (Crl.) No. 173 of 2006 was also the petition of the petitioner.
The case discussed the principle of fair trial and right from the inception of the judicial system. The respondents and the court was alleged that there was impartiality by the investigating officer, the trial court, even the eye-witnesses resiled from there statements. The Session Judge Court, Ujjain order the transfer of petition to another state i.e, Session Judge Court, Nagpur.
FACTS OF THE CASE:
Late Prof. Sabharwal was a professor in a Government College in Ujjain, Madhya Pradesh. Prof. Sabharwal took a rigid stand in the college union election for which he was brutally beaten up by some people. The assault was made in the presence of police officials, media and public but the attempt was made to project as if his death was the result of an accident. Initially, FIR was lodged and after investigation charge sheet was filed and charges were framed against persons. The trial began in the Court of Session Judge of Ujjain. During the examination of witnesses, who were an eye witness to the incident, those witnesses reverberate from the statement made during the investigation. Even those three police witnesses reverberated from their earlier statement made during the investigation.
The witnesses who were in favor of the petitioner later they coerced, threatened and ultimately justice is a casualty. The investigating officer role in the investigation gave ample scope to doubt impartiality reflected clearly on investigation results. Similar was in case of a public prosecutor.
It was also highlighted that there was no serious effort from Trial Court to seek justice. The public prosecutor even didn’t cross-examine the witnesses who resiled from there statements made during the investigation.
Mr. Soli J.Sorabjee, senior counsel appeared for the State of M.P stated in for of justice and transparency, the state has no objection in order to transfer the case to any other state. According to Mr. Soli, transfer of case should not be constructed to be acceptance of the allegations made by the petitioner about the impartiality of the investigating agency or of the public prosecutor or of the trial. Mr. Soli states if a person is guilty he has to be punished and has no intention to protect anyone guilty. Mr. U.R Lalit senior counsel appearing for the accused respondents, to show honesty of the police officials he stated to recall them for cross-examination even without any application of section 311of the Code Of Criminal Procedure, 1973.
The Court appreciated the fair stand of the state presented by counsel Mr.Soli and Mr. Lalit counsel of the accused-respondents. The Court without examination of the correctness of the allegation made directed that the case in Session Case No.291 of 2006 pending in the Session Judge Court, Ujjain be transferred to the Session Judges Court Nagpur, Maharashtra. It shall be in the discretion of the Session Judge to either deal with the case itself or to allow the case to any court it feels appropriate. The case shall begin from the stage where the order of stay was passed by this court(Sessions Judge Court, Ujjain). The petitioner who got deceased in the peculiar facts of the case, his son was permitted to suggest two names who would function as a public prosecutor and similar permission was also given to the accused respondents and state. It shall be the choice of the Session Judge, Nagpur to select the prosecutor from the names suggested. The fees and expenses of the public prosecutor appointed were to be fetched by the State of M.P. the court kept it open to the public prosecutor to seek a recall of any witness who was already examined in term of Section 311 of the Criminal Code.
The court accordingly disposed of the transfer petition. In the view of the orders passed in T.P(Crl.), 175 of 2007, no further order id necessary to be passed in W.P.(Crl.) 173 of 2006 and same is accordingly disposed of.
PRINCIPLE OF FAIR TRIAL
Right since the establishment of the judicial system it has been accepted that the establishment of truth is the main purpose underlying for the existence of the Court of Justice. In 1846, Lord Chancellor Selborne in a judgment stated ‘one of the ablest judgments of one of the ablest judges who ever sat in this court’. Vice-Chancellor Bruce stated the discovery and establishment of truth are the main purposes of the existence of the Court of Justice.
The principle of fair trial now informs and give vitality in various areas of the law. And, even this principle has reflected in numerous rules and practice. This principle is a constant, ongoing development process which continuously adapts to new and changing circumstances. The principle of a fair trial includes laws of evidence and however an overriding and a unifying principle.
J William Dean said ‘requirement of fairness is desirable to be separately identified since it transcends content of legal rules and practices which common law requires to observe in the administration of its substantive criminal law.
According to Benthem ‘witnesses’ are eyes and ears of justice. If witnesses himself gets debilitated from acting as eyes and ear of justice, that makes a trial paralyzed and putrefied. The State has a crucial role in protecting the witnesses so that the trial wouldn’t get averted getting tainted and derailed and the truth becomes a casualty. Section 311 of the criminal code and section 165 of the evidence act confers vast and wide powers on the Presiding Officers Of Court for playing an active role in evidence collecting process and monitoring the proceeding in the aid of justice.
Failure to accord fair hearing either to the accused or the prosecution violates the standard of process set in law. The fair trial for a criminal offence contents technical observation of law, recognition and application of principles in substance, to find best of the truth from facts and prevent injustice. According, to section 406 of criminal code the Supreme Court has power to transfer cases and appeal. The power of court under section 165 of the evidence Act is in a way complementary to power of courts under section 311 of the Criminal Code. It is important and even necessary to maintain a procedure in accordance to the laws.
 power to summon a material witness or examine person present