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2018 DIGILAW 1813 (ALL)

Shusheel Kumar v. State of U. P.

2018-08-18

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : Arvind Kumar Mishra-I, J. 1. Heard learned Counsel for the applicants and learned A.G.A. for the State. 2. Contention has been raised before this Court to the ambit that in this case forged/ manipulated medical certificate was produced by the injured-Santosh Kumari-who is by profession an advocate practising at Judgeship, Meerut and the Court below-Special Judge (E.C. Act), Meerut is working under her influence, as such applicants have no hope of getting justice from the Presiding Officer of the Trial Court. He further urged that applicants moved an application under section 340, IPC to take action against complainant on account of forged medical certificate, but the Court below has not taken any action on that application. Lastly, submission is that applicants are innocent persons and now unnecessarily they are being harassed, therefore, this Court should come to the rescue of the applicants and set aside the impugned order dated 30.7.2018 passed by the Sessions Judge, Meerut in Transfer Application No. 782 of 2018 in S.T. No. 1418 of 2014, under sections 307, 323, 504 and 506 IPC, P.S. Medical Collage, District Meerut and transfer the aforesaid S.T. No. 1418 of 2014 to any other Court of competent jurisdiction of judgeship Meerut or to any adjoining district from the Court of Additional Sessions Judge (E.C. Act), Meerut. 3. In support of his contention the learned Counsel has placed reliance on the case of Sarasasmma @ Saraswathiyamma vs. State, Rep. by Deputy Superintendent of Police. 2018 (2) JIC 713 (SC). 4. Also heard the learned A.G.A. He has supported the order dated 30.7.2018 passed by the learned Sessions Judge, Meerut, whereby, he discovered no merit in the transfer application moved before it and rejected the transfer application by observing that the grounds urged in support of transfer are mere apprehensions, which cannot be sustained under the eyes of law and the accused-applicants are free to contest the case on merit at their best. They cannot allege denial of fair play in the trial and the denial of fair trial because they themselves have prolonged the proceeding of the trial after their statement under section 313 Cr.P.C. was recorded. They were asked by the Trial Court to put their defence but the applicants instead of adducing testimony tried to avoid the proceedings on some unsustainable pretext. 5. They were asked by the Trial Court to put their defence but the applicants instead of adducing testimony tried to avoid the proceedings on some unsustainable pretext. 5. I have considered the contents brought before this Court by way of various annexures appended to this transfer application as well as the respective submission made by both the sides. 6. Bare perusal of the copy of transfer application (Annexure No-II) moved before the Sessions Judge, Meerut, obviously reflects that the mere apprehension has been imagined as the base of transfer of the Sessions Trial No. 1418 of 2014. Apprehension alone is no ground to sustain claim made for transfer of this criminal trial. Merit of this case cannot be touched at this stage about production of forged injury report/medical certificate before the Trial Court. Applicants have already exhausted their remedy of cross-examination by cross examining all the prosecution witnesses. It was incumbent upon the applicants to have utilized the opportunity given by the Trial Court to have produced the evidence on 26.7.2018 in defence. However, they designed adjournment and they did not specify as to on what definite date they will produce their testimony and in the meanwhile they somehow moved the transfer application (before the Sessions Judge) in order to prolong the proceedings of the aforesaid trial (1418 of 2014). Allegation of influence being exercised by the prosecutrix on the Presiding Officer is a personal blame, which does not carry any supporting material, therefore, such allegation on the face of it is mischievous as well as frivolous. Unless there is supporting material in respect of the claim made, the same cannot be accepted to be correct one. 7. In so far as, the aforesaid citation of the Hon'ble Apex Court is concerned, the fact of that case are quite distinguishable for the reason that the influence being exercised by one of the parties was found to be sufficiently established, which is not the case in this case at hand. 8. However, the Court below will proceed further with the case and one last opportunity to produce all the evidence in defence, which the Trial Court deems fit and proper and not vexatious, may be recorded by fixing three consecutive dates say 29.8.2018, 30.8.2018 and 31.8.2018. 8. However, the Court below will proceed further with the case and one last opportunity to produce all the evidence in defence, which the Trial Court deems fit and proper and not vexatious, may be recorded by fixing three consecutive dates say 29.8.2018, 30.8.2018 and 31.8.2018. It is observed that no adjournment shall be sought by the defence and it shall produce all its testimony as they wish to produce and in the event of non-production of evidence in defence, if adjournment is sought for prolonging proceeding of the Trial Court, for a period from beyond the aforesaid three dates, then the Trial Court shall be free to proceed further with the trial in accordance with law. The transfer application lacks merit and the case is not fit one for transfer at this juncture, but looking to the interest of justice, last opportunity, as aforesaid, is given to the applicants. If they do not utilise this opportunity, then they themselves are to be blamed for not utilising the opportunity to lead evidence in defence. 9. This transfer application is disposed of in terms of observations made herein above. However, nothing has been expressed on the merit of the case and the Trial Court shall be free to proceed further in accordance with law. 10. A copy of this order be faxed to the Sessions Judge, Meerut for information and necessary compliance.