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Allahabad High Court · body

2009 DIGILAW 2201 (ALL)

KESHAV PRASAD GUPTA v. STATE OF U. P.

2009-05-11

SAROJ BALA

body2009
JUDGMENT Mrs. SAROJ BALA, J.-This is an application under section 407 of the Code of Criminal Procedure for the transfer of S.T. . No. 88 of 2005 under sections 498-A and 304-B, IPC and section 3/4 of Dowry Prohibition Act, Police Station Saraimeer, District Azamgarh, from the Court of Additional Sessions Judge/Fast Tract Court No.3, Azamgarh to any other Court in the same Sessions Division. 2. Heard Sri Rajiv Lochan Shukla, learned Counsel for the applicant, the learned AG.A for State, Sri Dinesh Kumar Yadav, learned Counsel for the opposite parties No. 2 to 5 and have gone through the material on record. 3. The back ground facts are that the applicant is the first informant of the case. Seven prosecution witnesses and two defence witnesses were examined before the Court of Additional Sessions Judge F.T.C. No.3, Azamgarh. Thereafter the dying declaration of victim was summoned on the request of the defence. The Tehsildar by whom the dying declaration recorded was summoned on the application of the defence. On 29.8.2008 the defence witness Subhash Chandra Pandey, Tehsildar posted in District Basti appeared for evidence. An application was moved by the Counsel for the complainant for adjournment on the ground that application for transfer of the case to another Court was to be moved before the Sessions Judge. The witness having appeared after long correspondence the Trial Court was reluctant to adjourn the case. The defence Counsel requested the Court to adjourn the case as the complainant was in the look out to get the case transferred by making false allegations. The case was adjourned to 13.9.2008. On 22.9.2008 the complainant's Counsel informed the Court about the rejection of the transfer application. The witness Subhash Chandra Pandey was summoned for evidence. On 20.10.2008 the witness appeared and his statement was recorded. 4. The contention of the applicant is that on 9.8.2008, the Presiding Officer along with Sanjai accused was seen going in a bus towards Allahabad and the reader was present at the bus stand. It is alleged that the Presiding Officer is conducting the entire proceedings under the pressure of Sri Swami Nath Yadav, the defence Counsel. It is alleged that the statement of doctor was recorded in the absence of the Counsel for the applicant. It is alleged that the Presiding Officer is conducting the entire proceedings under the pressure of Sri Swami Nath Yadav, the defence Counsel. It is alleged that the statement of doctor was recorded in the absence of the Counsel for the applicant. According to the applicant, on 29.8.2008 the application for adjournment was moved on the ground that he wanted to get the case transferred to another Court. The Presiding Officer was infuriated on going through the contents of the application and returning the application asked the applicant to get out of the Court. The application was taken back and case was adjourned by the Presiding Officer at the instructions of Sri Swami Nath Yadav, Advocate. The co-accused Sanjai had offered Rs. four lacs for compromise which the applicant refused. Co-accused Sanjai threatened him that he would win the case on the strength of said money. The applicant states that these instances have given rise to genuine apprehension that he will not get justice from the Trial Court. 5. The comments of the Presiding Officer were called by this Court. The Presiding Officer has stated that he did not go to Allahabad on 9.8.2008. On 9.8.2008 it being second Saturday, the presence of reader residing at a distance of 15-16 Kms. from the head-quarter, at the bus stop is unbelievable. The statement of doctor was recorded on 4.8.2008 in the presence of the Presiding Officer, the Additional Government Advocate (Cri.), the complainant and defence Counsel and the witness was cross-examined the same day by the Additional Government Advocate (Cri.). On 29.8.2008 Sri Shiv Dhani Singh, Counsel for the complainant threatening to get the case transferred insisted for not recording the statement of witness Subhash Chandra Pandey. Since the attendance of witness was procured after long correspondence he was unwilling to adjourn the case. The defense Counsel intervened and offered to bear the expenses of the witness, the case was adjourned. This transfer application making frivolous allegations has been moved by the applicant in consultation with his Counsel Sri Shiv Dhani Singh. 6. Since the attendance of witness was procured after long correspondence he was unwilling to adjourn the case. The defense Counsel intervened and offered to bear the expenses of the witness, the case was adjourned. This transfer application making frivolous allegations has been moved by the applicant in consultation with his Counsel Sri Shiv Dhani Singh. 6. The learned Counsel for the applicant submitted that the applicant having seen the Presiding Officer going in the bus with one of the accused and the subsequent conduct of the Presiding Officer on 29.8.2008 in returning the adjournment application and taking it back and adjourning the case at the insistence of defence Counsel has given rise to the apprehension that the applicant will not get justice. 7. The learned Counsel for the opposite parties argued that the allegations made against the Presiding Officer are baseless. The order-sheet of the case reveals that the attendance of witness Subhash Chandra Pandey having been procured after long correspondence, the Trial Court insisted for his examination on the date he appeared. 8. The prosecution and defence evidence having concluded, the case is at the concluding stage. The entire evidence of the prosecution and defence witnesses having been recorded in the presence of the Presiding Officer of the Court of Additional Session Judge/F.T. Court No.3 he had the occasion and opportunity to watch the demeanaur of the witnesses. The defence witness Subhash Chandra Pandey having appeared from District Basti on 29.8.2008, the Trial Judge's anxiety to record his state!I1ent the same day and refusal to grant adjournment was not motivated. Ultimately, the case was adjourned by him on 29:8.2008 and the statement of witness was recorded on 20.10.2008 after the rejection of the transfer application. The State of D.P. is prosecuting the case. The Counsel appearing on behalf of the first informant/ complainant have no independent say in the cases prosecuted by the State. It is well settled law that the Counsel engaged by the first informant is to assist the Government Advocate. He can argue the case with the permission of the Government Advocate. On 29.8.2008 the adjournment was not sought by the Additional Government Advocate by 'whom the sessions trial was being conducted on behalf of the State. The statement of the doctor produced by the defence was recorded in the presence of the Additional Government Advocate (Cri.) and the witness was cross-examined by him. On 29.8.2008 the adjournment was not sought by the Additional Government Advocate by 'whom the sessions trial was being conducted on behalf of the State. The statement of the doctor produced by the defence was recorded in the presence of the Additional Government Advocate (Cri.) and the witness was cross-examined by him. There is no allegation that the State machinery is not conducting the case properly. It appears that the prosecution was not relying on the dying declaration of the victim. The dying declaration was summoned and proved by the witnesses of defence. The order-sheet of the sessions trial reveals that equal opportunity of examining and cross-examining the witnesses was granted to the parties by the Trial Court. In case the opposite parties were ready to spent a sum of Rs. four lacs they would have arranged a taxi for the Presiding Officer for going to Allahabad. The Presiding Officer being a prudent man he would not have travelled with the accused in a public - conveyance. The apprehensions of not getting a fair and impartial trial are based on surmises and conjectures. The allegations made against the Presiding Officer are false, frivolous and motivated. 9. In view of the above discussion, the applicant having failed to make out the case, the transfer application is rejected. Application Rejected.