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2004 DIGILAW 1743 (ALL)

VIJAI KUMAR CHIB v. STATE OF U P

2004-09-01

AMAR SARAN

body2004
AMAR SARAN, J. A FIR was lodged by the applicant at Police Station Hariparwat district Agra for registering the case under Sections 294/341 IPC against the respondent No. 2 Ajay Nigam. The allegations in this FIR were that on 30-5-1997 at about 10. 30 a. m. when the applicant, Vijay Kumar Chib was taking his daughter Sweta Chib, who was a student of B. Com. to her coaching classes on the pillion of his scooter, the respondent No. 2 stopped his motor-cycle in front of the applicants scooter and asked the applicant where was he taking his beloved and why was he not sending her to college. On the applicants cries, the witnesses Dr. Umesh Kumar Tripathi arrived at the spot. Even in his presence the respondent No. 2 made some indecent remarks. Thereupon the applicant and Dr. Umesh apprehended Ajay Nigam and took him to the police station Hariparwat and lodged the report at case Crime No. 226 of 1997 under Sections 294/341 IPC. In pursuance of the report a charge-sheet was submitted on 11-11-1997 in the Court of 1st A. C. J. M. , Agra where the case was pending trial. 2. The aggrieved father of the girl had moved this application for transfer of the case out side district Agra to some other nearby district on the ground that the respondent No. 2 had misused his position as an advocate and had on a regular basis filed different applications in an effort to implicate the applicant so that he would withdraw his criminal case against the respondent No. 2 and had even gone to the length of removing the original FIR from the record of the case, and substituting another. 3. In this connection learned Counsel for the applicant pointed out that when the applicant inspected the Courts record he found that the original and written FIR was removed and at places forgeries and fabrications in the written FIR which were not in the hand writing of the real scribe Umesh Kumar Tripathi, had been made. This FIR which was purported to have been lodged by the applicant mentions a line "jisse meri beti Sweta Chib garbhawati hai. " According to the applicant this line was not there in the original FIR, but appeared to have been interpolated later. This FIR which was purported to have been lodged by the applicant mentions a line "jisse meri beti Sweta Chib garbhawati hai. " According to the applicant this line was not there in the original FIR, but appeared to have been interpolated later. Enquiry at the behest of the District Judge by the Special Chief Judicial Magistrate, Agra dated 16-6-1998 and the 1st A. C. J. M. , Agra dated 8-2-1999 led to a conclusion that the original FIR had been removed and another FIR had been substituted in its place. The scribe of the FIR, Dr. Umesh Kumar Tripathi has stated that he had not lodged the FIR, which was present on the record. 4. Learned Counsel for the respondent No. 2 states that he was not heard before the enquiry report indicted him for having removed or changed the papers present on the record and thus there has been a violation of the principles of natural justice. In my view undue importance should not be given to the respondent No. 2 not having participated in the internal enquiry conducted by the A. C. J. M. and the special C. J. M. , as there is no invariable right of a full-dressed hearing to the accused in every internal enquiry. Also looking to the obdurate and determined attitude of the respondent No. 2 in trying to scuttle criminal proceedings against him, and his readiness to apply all means fair or foul for the purpose, I do not think that he would have allowed the enquiries to have been smoothly conducted if he would have been called upon to participate in the same. In this case I may mention that the facts speak for themselves and are res ipsa loquitur. No father who has lodged an FIR accusing someone for misbehaving and making indecent remarks against the daughter would add such a line that his daughter was pregnant from that very accused. In my opinion this alone is a clinching circumstance for demonstrating that only the respondent No. 2 would have benefited by changing the FIR and certain other documents which were on the record, and hence he alone was involved in tampering with the record. In my opinion this alone is a clinching circumstance for demonstrating that only the respondent No. 2 would have benefited by changing the FIR and certain other documents which were on the record, and hence he alone was involved in tampering with the record. In this view of the matter the conclusions of the aforesaid enquiry report that the respondent No. 2 was involved in tampering with the FIRs and records cannot be vitiated on a hyper-technical plea of violation of the principles of natural justice. 5. I also find that a number of applications have been moved by the respondent No. 2 and it appears tome that a consistent attempt has been made to brow-beat the applicant to compel him to withdraw the criminal case against the respondent No. 2. In this regard there was an application under Section 156 (3) Cr. P. C. which had been moved by the respondent No. 2 against the applicant and Dr. Umesh Kumar Tripathi. In response to this application the concerned Court got a preliminary enquiry made by S. I. Sri B. S. Pathak who recorded the statements of neighbours the applicant, Sri Raj Kumar, Bitthal Das and Sri Devendra Kalra. These persons stated that the respondent No. 2 is a man of bad character who was misbehaving with the women of the locality. After this preliminary enquiry, the Court dismissed the application under Section 156 (3) Cr. P. C. 6. There is a legal notice dated 12-4-1998 which was served upon the applicant where similar allegations against the applicant have been made mentioning a threat to the applicant that he would prosecute the applicant under Section 313 Cr. P. C. for getting his daughter Sweta illegally aborted. Certain other applications under Section 471 Cr. P. C. etc. were file against the applicant by the respondent No. 2 but they were similarly dismissed by the Court concerned after enquiry and that orders having been annexed as Annexure-9 and Annexure-10 to the transfer application. 7. The respondent No. 2 in his counter-affidavit himself mentioned that he had also filed an application for restitution of conjugal rights which was rejected as the Court concerned found that there was no proof of the respondent No. 2s marriage with Shweta. 7. The respondent No. 2 in his counter-affidavit himself mentioned that he had also filed an application for restitution of conjugal rights which was rejected as the Court concerned found that there was no proof of the respondent No. 2s marriage with Shweta. This application itself shows the extent of the mala fide conduct of the respondent No. 2, and the lengths that he could go to persecute the applicant and make an attempt to pressurise the applicant to withdraw his criminal prosecution against the respondent No. 2. 8. In this view of the matter, I think there is substance in the allegation of the applicant that the respondent No. 2 has misused his position as a lawyer and there is a bona fide apprehension of the applicant that he would not get justice and a fair trial owing to the consistent mischief conduct of the respondent No. 2 if this trial is held at Agra. 9. Further more as admittedly both the parties are residents of Agra, the fact that the complainant even though he is not in the legal profession, and lacks some of the advantages that the respondent No. 2 possesses for fighting a case in any district, being a member of the legal fraternity, yet he has still expressed a desire to have his case transferred to some other district shows the extent of his frustration and how impossible he was finding contesting the case in Agra owing to the repeated mischievous tactics resorted to by the respondent No. 2. Learned Counsel for the respondent No. 2 submits that there is no material to indicate that no Counsel was prepared to take up the applicants brief at Agra. In this regard I may point out that this was not a ground argued by the applicants Counsel before me for seeking the transfer of the case to some distinct outside Agra. His basic ground for transfer was that the applicant was misusing his position as an advocate of the Agra Courts by tampering with the FIR and other materials on record, by moving frivolous applications by way of counter-blast and was making the conduct of the trial in Agra almost impossible. 10. In the light of the aforesaid observations, criminal miscellaneous transfer application is allowed. 10. In the light of the aforesaid observations, criminal miscellaneous transfer application is allowed. I direct that case No. 1381 of 1998, State v. Ajai Kumar, pending in the Court of A. C. J. M. , Agra under Sections 294/341 IPC shall be transferred to the Court of Ist A. C. J. M. , Aligarh. The incident in this case is seven years old and the trial has been held up for the last four years after the proceedings were stayed in the Court. I, therefore, direct the learned trial Court to make all efforts to conclude the trial within six months, if possible. Transfer application is allowed. Let a copy of this order be transmitted to the trial Court within a week for necessary compliance. Application allowed. .