Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 453 (ALL)

AJAI SINGH @ SANT SINGH v. STATE OF Uttar Pradesh

2018-02-20

RAVINDRA NATH KAKKAR

body2018
JUDGMENT Hon’ble Ravindra Nath Kakkar, J.—Heard learned counsel for applicant as well as leaned counsel for the opposite party No. 2 and learned A.G.A. for the State. 2. This transfer application has been moved under Section 407 Cr.P.C. to transfer the S. T. No. 35 of 2017 arising out of Case Crime No. 6 of 2017, under Sections 302/34 I.P.C. and 7 Criminal Law Amendment Act and 30 Arms Act, State v. Kunwar Vivesh and others, pending in the Court of Session Judge, Chandauli, District-Chandauli to any other District of Uttar Pradesh except the Districts Varanasi and Chandauli. 3. Submission raised by the counsel for the applicant is that F.I.R. dated 13.1.2017 was lodged against the applicant and his two sons by the respondent No. 2 vide Case Crime No. 6 of 2017, under Section 302/34 I.P.C. and 7 Criminal Law Amendment Act, P.S. Sayyed Raja, District-Chandauli. It is further submitted that after completion of the investigation, charge-sheet under Section 302/34 I.P.C., 7 Criminal Law Amendment Act and 30 Arms Act was submitted. Next submission is that Bar Association, Chandauli held meeting on 18.5.2017 for passing order against Sri Yogendra Singh, Advocate, Civil Court Chandauli. As the deceased are Advocates no one has given consent to file Vakalatnama on behalf of applicant. On 19.5.2017 Joint Bar Association, Chandauli passed a proposal no any counsel of Bar Association, Chandauli will appear for accused/applicant in Case Crime No. 06 of 2017 registered at PS-Saiyadraja, District-Chandauli. On 20.5.2017 Joint Bar Association Chandauli passed a Prastav about Sri Yogendra Singh who has filed Parcha in Bail Application on behalf of applicant. Thereafter, Sri Yogendra Singh withdrew his Vakalatnama. It is next contended that due to non-availability of the local member of the Bar the bail application pending before the concerned Court was argued in person by the accused-applicant. Further, the charge was framed without giving an opportunity of hearing to the accused persons. It is next contended that at the time of framing of charge against the accused legal assistance could not be obtained due to the joint resolution of the Bar Association, Chandauli. In order to substantiate the above arguments, a copy of the resolution of the Bar Association, Chandauli has been annexed as annexure-6 alongwith the application. 4. It is next contended that at the time of framing of charge against the accused legal assistance could not be obtained due to the joint resolution of the Bar Association, Chandauli. In order to substantiate the above arguments, a copy of the resolution of the Bar Association, Chandauli has been annexed as annexure-6 alongwith the application. 4. It is contended on behalf of opposite party No. 2 that District Bar Association has not ever passed any proposal or any resolution with regard to not contesting the case on behalf of accused. It is further submitted that there is no record filed by the applicant/accused in above Transfer Application to prove his averments, It is next contended that there is no proof that Advocate Yogendra Singh has refused to argue the bail application of accused/applicant. It is next contended that no record has been filed by the applicant in this application in regard to that Sri Yogendra Singh has withdrawn his Vakalatnama from the case of the applicant. It is lastly contended that accused himself given a consent for appointment of an amicus curaie before the learned District Court, Chandauli. It is admitted that bail application was argued in person by the accused and this fact has also been admitted that charge was framed against the accused/applicants without hearing any legal representative of accused/applicant. 5. The point for determination is whether the applicant has reasonable apprehension that he would not get fair and impartial trial and whether the transfer of the case is expedient for the ends of justice. 6. Having heard the learned counsel for the both the parties and on a careful perusal of the relevant record and documents, it is relevant to mention that for disposal of an application under Section 407 Cr.P.C. the paramount consideration is a fair and impartial inquiry or trial in any Criminal Court. 7. 6. Having heard the learned counsel for the both the parties and on a careful perusal of the relevant record and documents, it is relevant to mention that for disposal of an application under Section 407 Cr.P.C. the paramount consideration is a fair and impartial inquiry or trial in any Criminal Court. 7. The facts and circumstances which transpires in this case is that this transfer application has been moved on behalf of applicant-accused on the ground that there is difficulty in engaging lawyer as local lawyers are not willing to accept the case of the applicants-accused as the deceased of the aforesaid case was a member of the local Bar Association and the local Bar Association after meeting passed a resolution that none of the Advocate of the member of the local Bar Association will assist the accused in pending Session Trial and further one who was engaged at the stage of disposal of the hearing of the bail application has withdrawn his vakalatnama from that case and in that compelling circumstances, the bail application was argued himself by the accused. It would be pertinent to mention that a report from the concerned Court through District Judge concerned has been obtained and the said report dated 2.2.2018 goes to show that none of the Advocate has put in appearance on behalf of accused and accused-applicant himself doing pairvi of the said case in person and further the accused person had denied consent to appoint Amicus Curaie to defend their case. It further reveals that charge was framed on 6.1.2018 and till now no prosecution witness has been examined. Learned counsel for the opposite party No. 2 drawn attention of the Court towards the V. Muraleedharan Nair v. N.J. Antony, LAWS (KER) 12 15 (High Court of Kerala) and Chander Sharma @ Kaku and another v. State of Himachal Pradesh and another, LAWS (SC) 2017, 4 44, Supreme Court of India. 8. The facts and circumstances of the above cited case are different from the present matter which is pending before this Court as in the present matter the bail application has been argued by the accused himself. It is the fact that this is a case of murder of local member of the Bar and his son and a joint resolution was passed by the local Bar Association that no Advocate will appear on behalf of accused. It is the fact that this is a case of murder of local member of the Bar and his son and a joint resolution was passed by the local Bar Association that no Advocate will appear on behalf of accused. Sri Yogender Singh, Advocate who has filed Vakalatnama on behalf of accused has withdrawn his Vakalatnama at the stage of hearing of bail application on account of resolution passed by local Bar Association. Learned counsel for the applicant has drawn attention of the Court towards the law laid-down in Remal Das (Applicant) v. Daya Shanke (Opposite party), AIR 1967 Allahabad 246, in which it held that : “No rigid principle governing applications for transfer of cases can be enunciated. Each case must be judged on its own merits. If the Court is satisfied after considering all the circumstances that it will be in the interests of justice or for the general convenience of parties or witnesses to transfer the case, it would make the transfer. But the onus of showing that the trial should not take place at the place where the law enjoins that it normally should, is on the party seeking the transfer.” 9. In the light of aforesaid legal proposition and the facts and circumstances as observed above, I am of the opinion that Session Case should be transferred from the District-Chandauli to District-Ghazipur because applicant has entertained a reasonable apprehension that he would not get a fair and impartial trial at District-Chandauli and that apprehension in the circumstances of the case cannot be said to be ill founded. So, I find there is substance in his plea that they are not getting proper legal assistance at District-Chandauli. The atmosphere at District-Chandauli is not conducive to fair trial. It is trite that the trial of a case should be in an atmosphere which does not create even a suspicion that there has been or is likely to be an improper interference with the course of justice. Further, it is not merely or some importance but of fundamental importance that justice should not only be done but should manifestly be seen to be done. 10. In view of the aforesaid, I am of the considered view that apprehension of not getting fair and impartial justice during trial is found to be reasonable and bona fide. 11. Further, it is not merely or some importance but of fundamental importance that justice should not only be done but should manifestly be seen to be done. 10. In view of the aforesaid, I am of the considered view that apprehension of not getting fair and impartial justice during trial is found to be reasonable and bona fide. 11. Resultantly the application is allowed and the S. T. No. 35 of 2017 arising out of Case Crime No. 6 of 2017, under Sections 302/34 I.P.C. and 7 Criminal Law Amendment Act and 30 Arms Act, State v. Kunwar Vivesh and others, pending in the Court of Session Judge, Chandauli, District-Chandauli is hereby transferred to the Court of Session Judge, Ghazipur, District-Ghazipur for expeditious disposal according to law.