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HC refuses plea seeking transfer of murder trial to another judge

The petition alleged a ‘biased’ and ‘hurried’ recording of evidence of witnesses and the judge not complying with the HC directions to conduct an expeditious trial in a “fair and proper manner.”

Written by Omkar Gokhale | Mumbai |
March 2, 2021 12:16:36 am
Bombay high court newsThe Bombay High Court on Thursday set partially aside the July 13, 2020, government resolution (GR) empowering the chief executive officers of zilla parishad to appoint administrators to over 1,40,000 due to the pandemic (File Photo)

The Bombay High Court on Monday refused a plea seeking transfer of an ongoing trial in the Thane sessions court against the accused in the 2013 murder of developer and businessman Sunil Lahoriya to a different court, reasoning that the current bench had completed a substantial portion of trial and the petitioner, the son of the deceased businessman had failed to show glaring exceptional circumstances to effect the transfer.

A division bench of Justice S S Shinde and Justice Manish Pitale on March 1 passed a ruling on a plea by Sandeep Lahoriya, son of deceased developer seeking transfer of case pending before Judge R R Vaishnav of the Thane sessions court to any other court.

The petition alleged a ‘biased’ and ‘hurried’ recording of evidence of witnesses and the judge not complying with the HC directions to conduct an expeditious trial in a “fair and proper manner.”

Advocate Himanshu Kode, appearing for the son of the petitioner, who was murdered in front of his office in gunfire on February 16, 2013, said due to hurried proceedings to wrap up the trial, procedural and substantive errors were being committed and the same is prejudicial to the prosecution. The accused Navi Mumbai builder Suresh Bijlani and others were charged under the Maharashtra Control of Organised Crime Act (MCOCA).

Kode also sighted ‘sepcific instances’ and claimed the concerned judge has not been conducting the trial properly, resulting in ‘frequent skirmishes’ between the Special Public Prosecutor (SPP representing police) and the judge and the same is detrimental to the trial.

The petitioner also claimed vital applications filed by the SPP have been kept pending and instead, evidence is being hurriedly recorded. The plea said the complaints made by the witnesses related to threat and pressure from the accused are being routinely ignored by the judge and vital CCTV footage required to be shown to the witness is not being shown despite availability of facility in the court. It was further claimed that bail applications of two accused persons were hurriedly considered and allowed by the concerned judge.

The petitioner submitted although the order granting bail is subject to challenge before the HC, a perusal of the same would show that ‘glaring factual errors’ have been committed by the judge indicating his ‘predetermined mind’.

Senior Counsel Rajiv Chavan, representing Mahesh Bijlani, one of the accused objected to the contentions raised by the petitioner and said the present petition has been moved only with a view to further delay the proceedings before the trial court so that the accused persons continue to languish in jail. The accused persons were arrested soon after their pre-arrest bail pleas were rejected and they have continued to remain in custody till date, except a few, who were recently granted bail. Lawyers for 13 other accused concurred with Chavan’s submissions and sought dismissal of the petition.

After hearing submissions, the bench observed, “There can be no doubt about the fact that an order transferring trial from a judge to another is not an exercise routinely undertaken. Therefore, it becomes necessary that when a prayer for transfer of trial is made on behalf of any party, the entire set of circumstances concerning the trial is taken into consideration.”

The bench noted that in the present case, it is significant that the trial already stood transferred to the court of Judge R R Vaishnav, not by an order of sessions court, but by an HC order of August 9, 2019 in its extraordinary jurisdiction. The court further observed that though the contentions raised by petitioner required to be addressed, the same did not require transfer of case to another judge since the same could be dealt through proper pleas at the end of the trial, wherein 52 of the 71 witnesses have been examined.

The bench observed, “It has to be kept in mind that barring a few accused persons, all other accused have been in jail for about seven years by now and this factor needs to be taken into account while ensuring that trial is completed at the earliest. The Principal District and Sessions Judge to ensure that workload in the court of Judge, R.R. Vaishnav is reduced, so that day-to-day trial of the present case is facilitated.” The bench directed that day-to-day hearings of the trial be held from March 4 and disposed of the plea.

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