- (1.) Transfer Petition (Crl.) No.175 of 2007 has been filed by one Himanshu Singh Sabharwal who is the son of late Prof. H.S. Sabharwal. The background facts as projected by the petitioner who is also the petitioner in Writ Petition (Crl.) No.173 of 2006 are as follows: Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P. He was brutally beaten up by certain persons, for taking a rigid stand in the college union elections. Though the assaults were made in the presence of several police officials, media persons and members of public, attempt has been made to project as if his death was as a result of an accident. Initially, First Information Report was lodged and after investigation charge sheet was filed and charges have been framed against several persons who are respondents 2 to 7 in the Transfer Petition. The trial commenced in the Court of Sessions Judge, Ujjain being Sessions Case No.291 of 2006. During examination of several witnesses who were stated to be eye-witnesses, such witnesses resiled from the statements made during investigation. There were even three police witnesses who also resiled from their earlier statements. They are Dhara Singh (PW-32), Sukhnandan (PW-33) and Dilip Tripathi (PW-34). Grievance of the petitioner is that the witnesses have been coerced, threatened and ultimately justice is a casualty. Role of the investigating officer gives ample scope to doubt, impartiality and the sincerity of the investigating agency. Similar is the position of the public prosecutor. It is also highlighted that the trial Court also did not make a serious effort to see that justice is done. In this connection it is pointed out that public prosecutor did not cross-examine the persons who had resiled from their statements made during investigation. This according to the petitioner also shows that the trial Court did not act as is required under law. By order dated 11.7.2007 the proceedings in the sessions case were stayed. In pursuance of the notice the respondent- State and accused respondents have appeared.
(2.) Mr. Soli J. Sorabjee, learned senior counsel appearing for the State of M.P. stated that in the larger interest of justice and transparency, the State has no objection in case the Sessions case is transferred to some other State. But according to him this should not be construed to be acceptance of the allegations made by the petitioner about the impartiality of the investigating agency or the public prosecutor or the manner of trial. According to him, if any person is guilty he has to be punished and State never had or has any intention to protect any guilty person. Similar stand was also adopted by Mr. U.R. Lalit, learned senior counsel appearing for the accused respondents. To show their bona fides, it was stated that even the police officials PWs 32, 33 and 34 may be recalled for cross examination even without any application in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short the 'Code') being filed.
(3.) Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.;