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2007 DIGILAW 2964 (ALL)

YOGENDRA v. STATE OF U P

2007-12-11

SHIV SHANKER

body2007
SHIV SHANKER, J. This is the Transfer Application moved under section 407 Cr. P. C. praying to transfer session trial No. 11 of 2007, State v. Satendra and others, under sections 394, 302, 147, 148 and 149 I. P. C. , P. S. Phugana, District Muzaffar Nagar pending in the Court of Additional District Sessions Judge, Court No. 2 Muzaffar Nagar to any other adjoining District. 2. Heard Sri V. P. Srivastava, Senior Advocate assisted by Sri Mohd. Naushad Siddiqui, learned Counsel for the applicant, Sri Satish Trivedi, Senior Advocate assisted by Sri Anubhav Trivedi, learned Counsel for opposite party No. 2 and learned A. G. A. and perused the record. 3. Learned Counsel appearing on behalf of the applicant has contended that Sri Anil Jindal, Advocate, who is the President of District Civil and Sessions Bar Association, Muzaffar Nagar is appearing on behalf of opposite party No. 2. This fact is not disputed on behalf of opposite party. Therefore, Sri Jindal, President of Bar Association is a very influential person and he is exercising his undue influence in an illegal manner upon the Presiding Officer as well as Sessions Judge, Muzaffar Nagar. This averment is quite evident by the perusal of the order-sheet itself that within 9 months since the commencement of trial, the session trial has been transferred from Sessions Judge, Muzaffar Nagar to Additional Sessions Judge, Court No. 5 Muzaffar Nagar and later on to the Court of Additional Sessions Judge Court No. 2 Muzaffar Nagar. 4. It is further contended that opposite party No. 2 lodged non-cognizable report against the applicant and other accused persons just in order to harass them, so that bail already granted to him, be cancelled. After investigation non-cognizable report lodged against the applicant and other accused persons were found false and it was lodged in consultation of his Advocate. Therefore, opposite party No. 2 and his Counsel is creating pressure on the applicant and other accused persons. Counsel for opposite party No. 2 is also applying pressure upon the Presiding Officer as well as Sessions Judge. Therefore, applicant has no hope that he will get justice from the sessions Court, Muzaffar Nagar. 5. It is further contended that the Counsel of O. P. No, 2 being President of Bar Association is exercising his influence in an illegal and undue manner upon the Presiding Officer. Therefore, applicant has no hope that he will get justice from the sessions Court, Muzaffar Nagar. 5. It is further contended that the Counsel of O. P. No, 2 being President of Bar Association is exercising his influence in an illegal and undue manner upon the Presiding Officer. Therefore, applicant and other co-accused persons are not taking proper interest as due to fact that the Counsel of O. P. No. 2 is the President of above bar so the applicant and other accused persons are unable to do proper pairvi of their case. 6. It is further contended that applicant and other accused persons have also serious apprehension that they will be implicated in any other false case. There is also danger to their lives at Muzaffar Na-gar. Therefore, it will be just and necessary in the interest of justice that the above session trial be transferred to any other adjoining district from district Muzaffar Nagar otherwise they will suffer irreparable loss and injury. 7. On the other hand learned Counsel for opposite parties submitted that applicant was summoned for the trial by Additional Sessions Judge, Court No. 5 by invoking the power under section 319 Cr. P. C. However, his bail was granted by concerned Sessions Judge on the same day after taking his surrender while bail application of other co-accused has already been rejected by this Court. Thereafter, transfer application was moved on behalf of O. P. No. 2 before Sessions Judge and complaint was also made against the Presiding Officer to the High Court Allahabad. Thereafter, case was transferred to Court of Additional Sessions Judge, Court No. 2 Muzaffar Nagar by Sessions Judge. Sri Beer Singh Rana is the Presiding Officer of Court No. 2. He is enjoying very good reputation in the judiciary and accused persons are unable to influence him or unable him to approach or pressurize him and it is only one reason that accused persons have preferred the transfer application so that the trial may not be concluded. 8. It is further contented that applicant and other co-accused persons are very influential person and they wanted to decide their case upon his choice and same choice is not going to be fulfilled before present Presiding Officer. 9. It is further contended that they are adopting delay tactics in not deciding the case at the earliest. 8. It is further contented that applicant and other co-accused persons are very influential person and they wanted to decide their case upon his choice and same choice is not going to be fulfilled before present Presiding Officer. 9. It is further contended that they are adopting delay tactics in not deciding the case at the earliest. Applicant has obtained ball on the same day of his surrender from Additional Sessions Judge Court No. 5 due to their influence. It is further contended that learned Counsel for the accused had sought several adjournments on each date in order to ill intent that the trial should not be concluded i. e. order dated 12. 7. 2007, 26. 7. 2007, 2. 8. 2007, 17. 8. 2007, 6. 9. 2007 and 19. 9. 2007. Therefore, grounds taken in the transfer application has no force and liable to be rejected. 10. FIR was lodged by Mahavir Singh, informant against accused persons Yogendra (present applicant), Sarvendra, Babu, Chandveer and Bobo (Pramod) for the offence under sections 302, 394, 147, 148 and 149 I. P. C. wherein allegation has been made against them that, they committed murder of Jaiveer on 5. 5. 2006 by causing firearm injuries and after that licensee D. B. B. L gun No. 11230 of Har Mohan was snatched and taken by accused. Charge-sheet was filed against all the four accused persons except one applicant Yogendra. Thereafter, applicant Yogendra has been summoned for the trial by concerned Judge by invoking power under section 319 Cr. P. C. 11. There is no dispute that Babu, Chandveer and Sarvendra are in judicial custody since before but the bail application of the present applicant Yogendra was allowed by Additional Sessions Judge, Court No. 5 on the same day after taking his surrender. Complaint was made on behalf of O. Ps. to Sessions Judge as well as High Court against the above Presiding Officer, thereafter, the case was recalled by Sessions Judge and transferred to the Court of Additional Sessions Judge Court No. 2 where Sri Beer Singh Rana is the Presiding Officer as submitted by O. F. No. 2. 12. It is worthwhile to mention here that bail of the present applicant was allowed on the same day. However, opportunity to oppose the bail, was to be given by concerned judge as per section 439 Cr. 12. It is worthwhile to mention here that bail of the present applicant was allowed on the same day. However, opportunity to oppose the bail, was to be given by concerned judge as per section 439 Cr. P. C. This shows that the applicant and co-accused persons may be influential persons. The bail on the same day could not have been granted by Presiding Officer if the learned Counsel for opposite party No. 2 would be influential person in the judge-ship as a president of Bar Association. 13. After perusal of the transfer application as well as contention made by learned Counsel for the applicant it does not transpire that any allegation of corruption has been made against the Presiding Officer where the trial is pending. This shows that applicant is not in a position to say anything against the Presiding Officer that he is the corrupt officer and he is under influence of learned Counsel for opposite party No. 2, who is the President of Bar Association. President of Bar Association cannot get decide the matter in his favour against the provision of law if the reputation of the Presiding Officer is up to the mark. 14. It is also worthwhile to mention here that there is also no allegation against the Presiding Officer that O. P. No. 2 has made approach to the Presiding Officer for deciding the case in his favour against the provision of law. All the above circumstances only infer that Presiding Officer is not approachable by any of the party. It is generally seen that accused, who are influential persons will not get decide the case from upright officer and he will try to get transfer the case from any other Court where he could hope that judgment should be delivered in his favour. In the present case several adjournments on behalf of the applicant had been taken before the present Presiding Officer. However, the Officer has not rejected any adjournment application of the applicant and others. This also shows that Presiding Officer is conducting the trial by observing all the fairness in deciding the case. 15. It is worthwhile to mention here that this transfer application was moved on 8. 10. 2007. Now Sessions Judge Sri R. D. Nimesh has already retried on 31. 10. 2007. This also shows that Presiding Officer is conducting the trial by observing all the fairness in deciding the case. 15. It is worthwhile to mention here that this transfer application was moved on 8. 10. 2007. Now Sessions Judge Sri R. D. Nimesh has already retried on 31. 10. 2007. However, no any subordinate officer of the Sessions Division will pass any order or judgment in any case at the direction of Sessions Judge against the provision of law. Each Court has itself independent jurisdiction. Sessions Judge cannot make interference in judicial proceeding of any Court. Case was transferred by the then Sessions Judge from the Court No. 5 to Additional Sessions Judge Court No. 2 on the reasonable grounds and also on the request of Presiding Officer. In such circumstances, this contention has also no force that the then Sessions Judge was under the influence of learned Counsel for Opposite party No. 2. 16. So far as the danger of life is concerned, nothing is available on record on behalf, of the applicant and other co-accused persons. However, the legal course can be adopted in this regard. On this ground above case is not liable to be transferred to other district. Both parties are the residents of same district. Therefore, there is no force in the argument advanced on behalf of learned Counsel for the applicant. This transfer application is liable to be rejected as no force. 17. Consequently, transfer application of the present applicant is hereby rejected. 18. As the three accused are in judicial custody from the very beginning, in such circumstances, trial should be concluded expeditiously as far as possible within six months from the date of receiving the order of this Court. .