Case Note & Summary
The petitioner-complainant filed a complaint on 18.3.2010 alleging illicit relationship and intimidation against the accused, leading to filing of charge sheet and trial in S.C.No.86/2014 before the III Additional District and Sessions Court, Ramanagara. During trial, the complainant's evidence was recorded on 8.8.2018 and 16.8.2018 with the assistance of a translator, Mr. Basavaraju. Subsequently, it was discovered that the translator was a witness in the charge sheet material. The accused filed an application to cancel his appointment; the trial court dismissed it on 16.7.2018. Aggrieved, the accused filed Criminal Petition No.6243/2018 before the High Court of Karnataka. By order dated 16.1.2019, the High Court set aside the appointment of the translator, holding that evidence recorded through an interpreter who is a witness cannot be sustained, and directed the trial court to inquire into the languages known to CW.1 and, if necessary, appoint a neutral translator unconnected with the case, and record evidence afresh. The complainant's SLP against this order was dismissed. In compliance, the trial court recorded fresh evidence on 18.9.2019. The complainant then filed the present petition under Section 407 read with Section 482 Cr.P.C., seeking to set aside the evidence recorded on 18.9.2019, to direct continuation from the earlier evidence of 8.8.2018 and 16.8.2018, and to transfer the trial to Bengaluru, alleging bias. The grounds included that the trial court ignored the earlier evidence, issued non-bailable warrant and demanded medical certificate despite the complainant's health issues, showed leniency towards the accused in securing their presence, and failed to expedite the trial despite directions from the Supreme Court and High Court. The accused-respondents contended that the fresh recording was in accordance with the High Court's order and was legal; that the delay was caused by the complainant's own applications and refusal to depose; that the application for transfer did not comply with Section 407(3) (not moved through Advocate General nor supported by affidavit); and that mere apprehension is insufficient for transfer. The court considered the submissions and the history, noting that the earlier evidence recorded with a translator who was a witness was not legal evidence and stood nullified by the High Court's previous order. The court observed that the subsequent recording on 18.9.2019 was in compliance with that direction and could not be said to create bias. The matter was heard and reserved for orders on 31.01.2020. The judgment text provided is incomplete, and the final order is not available.
Headnote
A) Criminal Procedure - Transfer of Criminal Case - Section 407, Code of Criminal Procedure, 1973 - The court noted that an application for transfer must be moved through the Advocate General and supported by an affidavit as required under Section 407(3). It was argued that mere apprehension of bias is insufficient; there must be reasonable apprehension. Reliance placed on Captain Amarinder Singh v. Parkash Singh Badal (2009)6 SCC 260 and Nahar Singh Yadav v. Union of India (2011)1 SCC 307. (Paras 5-6)
B) Evidence - Recording of Evidence - Evidence recorded through an interpreter who was a witness in the same case is not legal evidence. The earlier evidence recorded on 8.8.2018 and 16.8.2018 was nullified by the High Court's order in Crl.P.No.6243/2018, directing fresh recording with a neutral interpreter. The subsequent recording on 18.9.2019 was in compliance with that order. (Paras 9-10)
Issue of Consideration
1) Whether the evidence recorded on 18.9.2019 should be set aside as it ignored earlier evidence recorded on 8.8.2018 and 16.8.2018; 2) Whether the trial in S.C.No.86/2014 should be transferred from III Additional District and Sessions Court, Ramanagara to Sessions Court in Bengaluru due to apprehension of bias; 3) Whether the petitioner-complainant is entitled to relief under Section 407 read with Section 482 Cr.P.C.
Law Points
- Transfer of criminal case under Section 407 Cr.P.C. requires reasonable apprehension of bias
- not mere allegation
- application must be supported by affidavit and moved through Advocate General
- evidence recorded with a translator who is a witness in the case is not legal evidence and is liable to be set aside.
Case Details
2020 LawText (KAR) (02) 14
CRIMINAL PETITION NO.8236/2019
Sri Ashwin Vaish (for petitioner), Sri V.S. Hegde (SPP-II for R1), Sri Ravi B. Naik (Senior Counsel for R3 & R5), Sri C.V. Nagesh (Senior Counsel for R4), Sri A.S. Ponnanna (Senior Counsel for R6)
Sri K. Lenin @ Nithya Dharmananda
1. State of Karnataka by Superintendent of Police, Special Enquiries, CID; 2. Swamy Nithyananda @ Rajashekaran; 3. Shiva Vallabhaneni @ Nithya Sachidananda; 4. Dhanashekaran @ Nithya Sadananda; 5. Ragini @ Ma Nithya Sachidananda; 6. Jamuna Rani @ Ma Nithya Sadananda
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Nature of Litigation
Criminal petition under Section 407 read with Section 482 of the Code of Criminal Procedure, 1973, seeking to set aside evidence and transfer trial.
Remedy Sought
Petitioner-complainant sought to set aside the de novo evidence recorded on 18.9.2019, to direct the trial court to continue recording evidence from the point of evidence recorded on 8.8.2018 and 16.8.2018, and to transfer the trial proceedings in S.C.No.86/2014 from the Court of III Additional District and Sessions Court, Ramanagara to the Sessions Court in Bengaluru.
Filing Reason
The petitioner alleged that the trial judge acted with bias by ignoring earlier evidence, issuing non-bailable warrant, demanding medical certificate despite health issues, treating accused leniently, and failing to expedite trial despite directions from superior courts.
Previous Decisions
Earlier, the High Court in Criminal Petition No.6243/2018, by order dated 16.1.2019, set aside the appointment of translator Mr. Basavaraju and directed fresh recording of evidence with a neutral translator. The complainant's Special Leave Petition against this order was dismissed.
Issues
Whether the evidence recorded on 18.9.2019 should be set aside as it ignored earlier evidence recorded on 8.8.2018 and 16.8.2018?
Whether the trial in S.C.No.86/2014 should be transferred from III Additional District and Sessions Court, Ramanagara to Sessions Court in Bengaluru due to apprehension of bias?
Whether the petitioner-complainant is entitled to relief under Section 407 read with Section 482 of Cr.P.C.?
Submissions/Arguments
Petitioner's counsel argued that de novo evidence recorded on 18.9.2019 was unsustainable as earlier evidence of PW.1 was already recorded on 8.8.2018 and 16.8.2018, and ignoring it created bias; issuance of NBW and demand for medical certificate indicated bias; trial court showed leniency towards accused No.1; despite directions from Supreme Court and High Court, trial not expedited.
Respondent No.4's counsel argued that earlier evidence was nullified because translator was a witness, as held by High Court in Crl.P.6243/2018; fresh evidence on 18.9.2019 was legal; delay caused by complainant's own inaction and applications; mere apprehension insufficient for transfer; relied on Captain Amarinder Singh v. Parkash Singh Badal and Nahar Singh Yadav v. Union of India.
Respondent Nos.3&5 argued that application under Section 407(3) Cr.P.C. must be made through Advocate General and supported by affidavit, which was not done.
Respondent No.6 argued that case was dragged at instance of complainant, and under Section 407(7) Cr.P.C., if application is frivolous or vexatious, compensation may be awarded to accused.
Judgment Excerpts
the evidence recorded on 8.8.2018 and 16.8.2018 with the help of such translator is going to prejudice the case of the accused. Hence, the translator cannot be considered to be legally appointed translator and such evidence is not the legal evidence.
the evidence recorded earlier with the help of the translator who was a witness in the same case is going to prejudice.
Procedural History
Complaint filed on 18.3.2010 alleging illicit relationship and intimidation. After investigation, charge sheet filed. Case committed as S.C.No.86/2014 to III Additional District and Sessions Court, Ramanagara. Examination-in-chief of complainant (PW.1) recorded on 8.8.2018 and 16.8.2018 with assistance of translator Mr. Basavaraju. It was discovered that translator was a witness in the charge sheet. Accused filed application to cancel his appointment; trial court dismissed on 16.7.2018. Accused challenged this in Criminal Petition No.6243/2018 before High Court. High Court by order dated 16.1.2019 set aside the appointment, holding evidence recorded with such translator not legal, and directed fresh recording with neutral translator. Complainant filed SLP, which was dismissed. Trial court recorded fresh evidence on 18.9.2019. Complainant then filed present Criminal Petition No.8236/2019 in 2019, heard and reserved on 31.01.2020, pronounced on 17.02.2020.
Acts & Sections
- Code of Criminal Procedure, 1973: 482, 407(3), 407(7)
