Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 183 (ALL)

VISHWANATH AGARWAL v. STATE OF U. P.

2017-01-13

KARUNA NAND BAJPAYEE

body2017
JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—This transfer application has been moved on behalf of applicant seeking the quashing of order dated 7.1.2017 passed by Session Judge, Mathura in Transfer Application No. 3/2017 (Vishwanath Agarwal v. Ajay Saxena) whereby the transfer application moved on behalf of applicant has been rejected and also seeking the transfer of Criminal Case No. 2935/2015 (State v. Ajay Saxena) from the Court of Additional Chief Judicial Magistrate, Court No. 4, Mathura o any other competent Court. 2. Shri Rahul Chaturvedi, Advocate filed his power today, on behalf of opposite party No. 2, which is taken on record. 3. Heard learned counsel for the applicant, learned counsel for the opposite party No. 2 and learned A.G.A. 4. Contention raised by the counsel for the applicant is that P.W.-1 was suffering with a serious ailment like Chikungunya and so he could not examine himself in the Court on a few dates and adjournment was sought and also granted by the Court. But later on at some stage the adjournment was refused and evidence of P.W.-1 was closed in the mid way. This closure of his evidence is likely to cause serious prejudice to the interest of the prosecution. Another submission is that the statement of P.W.-2 also appears to have been misplaced and in place of it some carbon copy is said to have been kept on the record and that also speaks about the high irregularity which has crept into the proceedings and in that regard the statement of P.W.-2 needs to be recorded again but the Presiding Officer, seized with the matter, is not acting in accordance with law, therefore, the proceedings should be transferred to any other Court. 5. While rebutting the submissions placed by applicant’s counsel, it was pointed out by Shri Rahul Chaturvedi, learned counsel for the opposite party No. 2 that the matter has already reached at its terminating stage and the transfer application has been moved only with the object to scuttle and stall the proceedings. 5. While rebutting the submissions placed by applicant’s counsel, it was pointed out by Shri Rahul Chaturvedi, learned counsel for the opposite party No. 2 that the matter has already reached at its terminating stage and the transfer application has been moved only with the object to scuttle and stall the proceedings. Moreover if the applicant felt aggrieved by any of the orders passed by the Court below, they should have been challenged before the superior Court which has not been done so far and instead of challenging the judicial orders passed by the Court below in a superior Court, the applicant has jumped the gun and chose to move the transfer application which does not appear to be a justifiable course. It was also pointed out that the accused are in jail and any unnecessary prolongation of proceedings will seriously prejudice the rights of the accused. 6. I have considered the submissions made at the Bar and perused the record in the light of same. 7. All the contentions which have been placed by the applicant’s counsel appear to be in the nature of criticism of the orders passed in judicial capacity by the trial Judge. If any order makes the applicant aggrieved, he should have challenged the same in the superior Court adopting proper legal recourse but the same does not appear to have been done. A judicial officer may pass a correct order and may also pass an incorrect order. That is how and that is why superior Courts come into play to look into the correctness of the subordinate Court’s order and then pass appropriate order with regard to the same. Different Courts like the Courts of Revision, the Courts to entertain Applications under Section 482 Cr.P.C., the Courts to exercise powers to issue writs etc., with separate jurisdictions have been carved out to exercise such respective jurisdictions in the High Court. But passing of the incorrect orders, even if it is presumed that the same has been done, does not constitute a legitimate ground to transfer the trial. While exercising the jurisdiction of transferring a trial from one Court to another this Court does not deem it fit or even proper to adjudicate upon the legality or otherwise of the orders passed by the Court below. While exercising the jurisdiction of transferring a trial from one Court to another this Court does not deem it fit or even proper to adjudicate upon the legality or otherwise of the orders passed by the Court below. There is hardly any material available on the record which may indicate that the presiding officer is or was acting unfairly or dishonestly or was acting with prejudice or was influenced by some extraneous considerations, and therefore, this Court feels disinclined to interfere or to proceed to transfer the trial. The alleged incorrect or the illegal approach of the trial Court must reflect that the same owes its genesis to some extraneous extra judicial factors which may be said to have tainted the judicious approach of the Judge. Unless such a possibility appears plausible, this Court ordinarily does not feel persuaded to exercise powers under Section 407 of Cr.P.C. only on the ground of the trial Judge having passed some incorrect order. 8. It goes without saying that if there is any order passed by the Court below, which makes the first informant or the applicant aggrieved, he can always adopt proper legal course and challenge the same in superior Court, which alone shall be competent to look into the legality, correctness or the propriety of the same. 9. With the aforesaid observations, the application stands disposed off.