Gauri Shanker Srivastava v. State of U. P. — 1974 DIGILAW 490 (ALL)

JUDGMENT T.S. Misra, J. This application arises in the following circumstances. Sri Gauri Shanker Srivastava the applicant avers that he is a Government Servant and is employed as SubPost Master posted at Varanasi Sanskrit Vishwavidyalaya SubPost Office, Varanasi but has now been placed under suspension. There was certain complaint against him alleging that he, as SubPost Master, committed certain embazzlement of money. A first information report to that effect was lodged on August 12, 1972 at the police station, Chetganj, Varanasi by Amardeo Yadav, Inspector of Post Offices, SubDivision, Shivpur. Another first information report was lodged by Senior Superintendent Post Offices, Varanasi on September 4, 1972 against the applicant for embazzlement of money. These two cases were investigated by the police of Chetganj, Varanasi and chargesheets were submitted in the court at Varanasi under Section 409 I.P.C. The applicant further avers that the Criminal Branch Investigation, U.P. Police at Lucknow started the case for investigation on June, 26, 1973 in respect of an alleged misappropriation of a sum of Us. 24851deposited by Nand Lal Dubey Cashier of Sanskrit Vishwavidalaya, Varanasi. After investigation, the Criminal Branch Investigation, U.P. Police, Lucknow submitted a chargesheet in the Court of Special Judge Anti Corruptions (East), Lucknow under Section 5 of Prevention of Corruption Act and 409 I.P.C. against the applicant. The list of witnesses in the chargesheet submitted before the Special Judge discloses that nine witnesses are of Varanasi. The applicant also resides at Varanasi. His contention is that he shall be put to great hardship if he is to face trials at two different places simultaneously namely at Varanasi and Lucknow and that he is a poor man and it will not be possible for him to defend his case at two different places. It would, therefore, be in the interest of justice that the Criminal case No. 2 of 1974 State v. &auri Shanker Srivastuva pending in the Court of Special Judge, Anti Corruption (East), Lucknow may be transferred to the Court at Varanasi. He has contended that the Sessions Judge, Varanasi is also Special Judge appointed under the Criminal Law Amendment Act, 1952 and is competent to try the case, on its transfer from the court of the Special Judge, Lucknow. In support of his application the applicant filed his affidavit. He has contended that the Sessions Judge, Varanasi is also Special Judge appointed under the Criminal Law Amendment Act, 1952 and is competent to try the case, on its transfer from the court of the Special Judge, Lucknow. In support of his application the applicant filed his affidavit. A counteraffidavit has been filed by Ram Naresh Singh the Investigating Officer of the case which is pending in the court of the Special Judge, Anti Corruption (East), Lucknow. In paragraph 7 of the counteraffidavit the defendant gave the names of the witnesses whose names are mentioned in the chargesheet submitted by the Criminal Branch Investigation, U.P. Police at Lucknow on January 1, 1974 a perusal whereof discloses that out of 14 witnesses 11 witnesses hail from Varanasi. Sri D.D. Goel witness mentioned at serial No. 10 is shown as a resident of Calcutta and Sri R. B. Rastogi mentioned at Serial No. 13 is shown as a resident of Bareilly. Sri Ram Naresh Singh, the Investigating Officer is residing at Lucknow. In paragraph 10 of the affidavit it is stated that the applicant had not given any list of the defence witnesses and at present only accused applicant's convenience cannot be considered as a factor for the transfer of the case. Further, it is stated that the applicant had been delaying the proceedings and ultimately the proceedings were taken against him under Sections 87 and 88 of the Code of Criminal Procedure for his arrest and production before the Court. On these grounds the application is opposed. In the rejoinder affidavit the applicant reiterated that unless the case is transferred from Lucknow to Varanasi, he would not be able to defend the case properly and that he has to examine about 18 witnesses who reside in Varanasi and it would be impossible for him to take all these 18 witnesses for evidence, to Lucknow. He further alleged that it would require huge amount of money in bringing the witnesses to Lucknow. He contended that he is a poor man and has no means of spending huge amounts for defending himself by bringing the witnesses from Varanasi to Lucknow. He gave a list of defence witnesses in paragraph 8 of the rejoinder affidavit and stated that all of them reside at Varanasi. He contended that he is a poor man and has no means of spending huge amounts for defending himself by bringing the witnesses from Varanasi to Lucknow. He gave a list of defence witnesses in paragraph 8 of the rejoinder affidavit and stated that all of them reside at Varanasi. At the outset the application was opposed on the ground that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a Special Judge cannot be transferred at all because under the terms of that Act such a case must be tried by a Special Judge designated only. It was contended that the chargesheet in the case pending before the Special Judge Anti Corruption (East) Lucknow was submitted by the Special Police Establishment of the Government and in view of the Notification No. 4683 (4)/VI31573 dated January 3, 1974 such a case is triable only by the Special Judge (East) at Lucknow and cannot, therefore, be transferred to any other Special Judge. This contention does not survive in view of the decision of the Supreme Court in Gurcharan Das Chaddha v. State of Rajasthan, A.I.R. 1966 S.C. 1418. This Court in exercise of its jurisdiction and power under Section 407 of the Code of Criminal Procedure can transfer a case from one Special Judge to another Special Judge of equal or superior jurisdiction, subordinate to this Court. The learned counsel for the applicant referred me to a Notification No. 1953/VI852 dated September 18, 1952, were by the District and Sessions Judge, Banaras has been appointed ExOfficio Special Judge for Eanaras District for the purposes of Criminal Law Amendment Act, 1952. This Notification was not shown to have been superseded. The learned counsel for the applicant also referred me to another Notification No. 2121JVI73972 dated July 24, 1972 which is in continuation of the aforesaid Government Notification of September 18, 1952 and by which the First Additional District and Sessions Judge Varanasi has been appointed ExOfficio Special Judge for Varanasi Nagar Mahapalika Area for trying offences specified in subsection (1) of Section 6 of the Criminal Law Amendment Act, 1952 committed within that area. It was not shown to me that this notification has been superseded. It was not shown to me that this notification has been superseded. Thus it is quite manifest that for the trial of the cases in regard to offences specified in subsection (1) of Section 6 of the said Act arising in the Nagar Mahapalika Area in the District of Varanasi, the District and Sessions Judge Varanasi and the First Additional District Judge Varanasi have been appointed ExOfficio Special Judge. At the same time the Special Judge (East) at Lucknow has also been appointed for trying the cases in regard to the offences specified in subsection (1) of Section 6 of the said Act arising in Varanasi in which chargesheet has been submitted by the Special Police Establishment. Normally the case in which the chargesheet has been submitted by the Special Police Establishment is to be tried by the Special Judge (East) Lucknow in regard to offences specified in subsection (1) of Section 6 of the said Act for the areas mentioned in the notification dated January 3, 1974. But there is no bar in transferring a case from one Special Judge to another Special Judge if the circumstances warranting such transfer are made out. Each case has to be judged on its own merits. If on consideration of all the circumstances the court is satisfied that it will be in the interest of justice or it will tend to the general convenience of the parties or witnesses to transfer the case, it shall make an order of transfer. It is for the party speaking for transfer of a case to show why the case should not be tried at the place where it normally should be tried. It is for the party speaking for transfer of a case to show why the case should not be tried at the place where it normally should be tried. In the instant case the applicant has sought transfer of the case pending in the Court of Special Judge (East) Lucknow, on the grounds that (1) the two cases arising out of the same occurrence under Section 409, I.P.C. are pending against him in the court at Varanasi, (ii) it would be convenient to the accusedapplicant and the witnesses if the said case is tried at Varanasi inasmuch as the applicant as well as all the witness for the prosecution and the defence, with the exception of a few live in Varanasi and (iii) the applicant is a poor man and has no means to spend huge amount for his defence at Lucknow and that it would be impossible for him to take all his 18 witnesses from Varanasi to Lucknow for evidence as that would require huge expenditure. There is no merit in ground No. 1. The allegations are, as stated, that the first case pending at Varanasi relates to embazzlement of money with regard to which a first information report was lodged on August 12, 1972. The second case pending against him at Varanasi also relates to embezzlement with regard to which another first information report was lodged on September 4, 1972. The case pending in the court of the Special Judge (East) Lucknow pertains to another embezzlement said to have been committed on August 31, 1971. These three cases relate to different periods and it would not in my view be a sufficient ground for transferring the case pending in the court of Special Judge (East), Lucknow to another court. With regard to the second ground it may be stated that a case may be transferred if the court is satisfied that it will tend to the general convenience of the parties or witnesses or that it will be expedient for the ends of justice. It is not only the general convenience of the accused which is to be taken into consideration but the general convenience of the prosecution will also be taken into account. The general convenience of the witnesses may also be a factor for transferring a case from one court to the other. It is not only the general convenience of the accused which is to be taken into consideration but the general convenience of the prosecution will also be taken into account. The general convenience of the witnesses may also be a factor for transferring a case from one court to the other. In that instant case the applicant has stated that his 18 witnesses are residents of Varanasi. The applicant is also a resident of Varanasi. Moreover, out of 14 witnesses for the prosecution 11 are residents of Varanasi. The offence is also said to have been committed at Varanasi. The witnesses for the prosecution and the defence would, therefore; be greatly convenienced if the case is tried at Varanasi. With regard to ground number 3 the contention is that the applicant is a poor man and has no means to incur huge expenditure in taking his witnesses from Varanasi to Lucknow. The opposite party did not dispute this fact in the counteraffidavit. There is no allegation in the counteraffidavit that the applicant is not a poor man or that he has sufficient means to spend the money in taking his witnesses from Varanasi to Lucknow and in defending himself at Lucknow. It was, however, urged on behalf of the opposite party that the applicant has not yet filed a list of his witnesses before the Special Judge (East), Lucknow, and therefore, he cannot urge at this stage that he will have to incur huge expenditure in his defence. Further, it was urged that the applicant can get the summons issued from the court of the Special Judge (East), Lucknow and in that even the expenses would not have to be borne by him. I find no force in the contention of the opposite party. The fact, that the assertion of the applicant that he is a poor man and has no means to defend himself at Lucknow and to take his witnesses from Varanasi to Lucknow for his defence, has not been rebutted. That being so, it would hamper the defence if the case in question is tried by the Special Judge (East), Lucknow. The summoning of witnesses is within the discretion of a Court and if it feels that the production of witnesses is likely to cause delay, it may decline to issue summons. That being so, it would hamper the defence if the case in question is tried by the Special Judge (East), Lucknow. The summoning of witnesses is within the discretion of a Court and if it feels that the production of witnesses is likely to cause delay, it may decline to issue summons. Section 407 of the Code of Criminal Procedure provides for a transfer of a case on the ground, inter alia, of the general convenience of the parties or witnesses which means that the court has to consider the convenience not only of the parties but of the witnesses as well. In the present case, since 11 out of 14 witnesses for the prosecution reside in Varanasi and 18 witnesses for the defence also reside in Varanasi, it would obviously tend to the convenience of the witnesses if the case is tried at Varanasi. The fact that the applicant has not yet submitted his list of witnesses to the court of Special Judge (East), L,ucknow is not of much significance. That stage has not yet been reached inasmuch as no charge has yet been framed against him. He has however, mentioned the names and address of his 18 witnesses in his rejoinder affidavit. All these witnesses are residents of Varanasi. Taking all these circumstances into consideration, I am of the view that the order of transfer will serve the ends of justice. I, therefore, direct that the Criminal Case No. 2 of 1974, State v. Gauri Shanker Srivastava pending in the Court of Special Judge (East), Lucknow shall be transferred to the court of District and Sessions Judge, Varanasi who is an ExOfficio Special Judge at Varanasi.