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2019 DIGILAW 1974 (ALL)

Jalveer v. State of U. P.

2019-08-19

RAM KRISHNA GAUTAM

body2019
ORDER : Ram Krishna Gautam, J. 1. This Transfer Application, under Section 407 of Criminal Procedure Code (Hereinafter, in short, referred to as 'Cr.P.C.'), has been filed by the accused-applicants, Jalveer and five others, against State of U.P. and Opposite party no. 2, Geetam Singh, with a prayer for transferring Sessions Trial No. 643 of 2014 (State Vs. Jalveer and others), arising out of Case Crime No. 286/2014, under Sections 147, 148, 149, 302 and 506 of Indian Penal Code, Police Station-Fatehpur Sikri, District Agra, from the court of Additional Sessions Judge, Court no. 9, Agra, with a contention that this first Criminal Miscellaneous Transfer Application is being filed before this Court and prior to it the same was filed before the court of Sessions Judge, Agra, which was rejected by the Sessions Judge, Agra. 2. A first information report was lodged at Police Station-Fatehpur Sikri on 30.5.2014, against these accused persons with an allegation of murder of Bhupendra by the accused-applicants, whereas in autopsy examination report, there was only injury at the chest, within blackening and tattooing, around it. Investigation resulted in submission of chargesheet against Jalveer and Sahab Singh, alongwith Ghamandi, as a proclaimed offender. After committal of the case, charges were framed against Jalveer and Sahab Singh, then after, an application, under Section 319 of Cr.P.C., dated 26.10.2015, with a prayer for summoning Dhirendra, Ravindra and Satendra, was moved. Sahab Singh, on 18.9.2014 and Jalveer, on 23.9.2014, were released on bail. Dhirendra, Ravindra and Satendra were also released on bail by this Court. Ghamandi is in Jail since 5.9.2015. Trial proceeded before the Additional Sessions Judge, Court No. 9, Agra. It was scheduled on 4.5.2019, when date 30.5.2019 was fixed and signature of accused were taken over blank papers. An oral statement for judgment, to be delivered on 30.5.2019, was narrated, whereas on 30.5.2019, only one hour was given for arguments in the case. The date was manipulated and written to be 15.5.2019, which was not in the knowledge of the accused persons, then 30.5.2019 was fixed, but warrant was issued against accused-applicants. Recall application was moved and date 4.7.2019 was fixed. Hence, neither opportunity for argument was given nor it was heard, rather complainant-Opposite party no. 2 was seen coming out of the chamber of the Presiding Judge. Recall application was moved and date 4.7.2019 was fixed. Hence, neither opportunity for argument was given nor it was heard, rather complainant-Opposite party no. 2 was seen coming out of the chamber of the Presiding Judge. Transfer Application No. 586 of 2019 was filed before the court of Sessions Judge, Agra, for transferring above case on which comment of the concerned presiding Judge was called for, who, in his comments expressed no objection over it, even then said Transfer Application was rejected, vide order dated 26.7.2019. Thus, this Transfer Application, with above prayer. 3. Learned counsel for the applicants argued that he has no objection in case file of Sessions Trial is being transferred to some other court, having competent jurisdiction, with grant of single date for argument over trial. Hence, a request for allowing this Transfer Application has been made. 4. Learned AGA, appearing for the State of U.P., has vehemently opposed this Transfer Application. 5. Sri M.L. Jain, learned counsel appearing for the victim, Smt. Nemwati, wife of the deceased, has argued that it is a case of murder, committed by the accused persons, in which there is a direction for time bound disposal of the trial, given in Crl. Misc. Bail Application No. 23065 of 2017, in the order dated 9.4.2018, but the accused persons are not permitting for disposal of this trial and with an ulterior motive, this Transfer Application, on baseless ground, has been moved. 6. Heard learned counsel for the parties and perused materials on record. 7. Perusal of the order, passed by the learned Sessions Judge, Agra, reveals that allegations levelled against the Presiding Judge, concerned, was that a manipulation in date was made, warrant was issued, complainant was seen coming out from the chamber of the Presiding Judge and there is a narration of complainant in evidence that he will get accused persons convicted. 8. Comment of the Presiding Judge, filed before the learned Sessions Judge, Agra, reveals that there had been a direction for time bound disposal of above Sessions Trial, in which Ghamandi is under trial and it was a date of argument, which was a part heard argument case. When none of the accused persons appeared, it resulted in issuance of bailable warrant against them and this was subsequently acted upon by enlarging them on bail on Personal Bond. When none of the accused persons appeared, it resulted in issuance of bailable warrant against them and this was subsequently acted upon by enlarging them on bail on Personal Bond. Learned counsel for accused persons did not argue on the date fixed in the court, rather a new Vakalatnama of Haridutt Sharma, Advocate, was filed, with an assurance for getting the case argued on the next date. On this assurance, learned Trial Judge adjourned the case for argument to 30.5.2019, but no argument was advanced on that date too. Neither accused persons' counsel nor accused persons appeared, which compelled learned Trial judge to issue bailable warrant. So far as allegation of coming out of Opposite party no. 2 from the chamber of the Presiding Judge is concerned, the same has been vehemently opposed by the Presiding Judge. 9. Learned Sessions Judge, found Transfer Application with no substance, hence rejected the same. 10. Alleged manipulation in the order sheet is not being substantiated by the counsel. It is undisputed that there was a direction for time bound disposal of the Sessions Trial of under trial accused and the court was endeavouring for getting same complied with and the Transfer Application was moved before the court of Sessions Judge, Agra, even in defiance of assurance given by learned counsel for defence, who was subsequently engaged on 4.5.2019, that he would argue the case on the next date fixed. 11. Apex Court in the case of State of Bihar vs. Hemlal Sah, reported in 2014, Crl. L.J., 1767, while referring a judgment of Apex Court, rendered in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak, reported in AIR 1982, SC, 1249, at page 1251, has propounded that matters of judicial records are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena "Judgments cannot be treated as mere counters in the game of litigation." (Per Lord Atinkson in Somasundaram Chetty Vs. Subramanian Chetty, AIR 1926, PC 136), has propounded "We are bound to accept the statement of the Judges recorded in their judgments, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit or other evidences. If the Judges say in their judgment that something was done, said or admitted before them, that has to be last word on the subject. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit or other evidences. If the Judges say in their judgment that something was done, said or admitted before them, that has to be last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts, so stated, and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in the court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have record corrected. If no such step is taken, the matter must necessarily end there". 12. In present case, in the order sheet, it has been specifically mentioned by the Trial Judge that Sri Hari Dutt Sharma, newly engaged Senior Counsel for defence, has sought an adjournment of the case and given an assurance that he will argue the case on the only date requested by him. This date was given to him. On that particular date, none of the accused appeared nor the counsel appeared, which compelled the court for issuing warrants against the accused persons and this was made a ground for Transfer Application, moved before the court of Sessions Judge, Agra, but nowhere it was mentioned in the said Transfer Application that there had been a direction by this Court for expeditious disposal of above Sessions Trial, that too, in a time bound frame. This has neither been mentioned before the court of Sessions Judge, Agra, nor before this Court, in this Transfer Application, which itself goes to show modus and intention of the accused-applicants, who have filed this Transfer Application, to get the trial delayed, by getting it transferred from the court where it is likely to be decided in near future. 13. Under all above facts and circumstances, there is no ground for transferring this Sessions Trial from the court of Additional Sessions Judge, Court No. 9, Agra. 13. Under all above facts and circumstances, there is no ground for transferring this Sessions Trial from the court of Additional Sessions Judge, Court No. 9, Agra. Hence, this Transfer Application is being rejected, with a direction and advise to learned counsel, who has filed this Transfer Application, to come to the Court with clean hands and to remain careful in future, while presenting any Transfer Application, with mentioning correct facts and circumstances before the Court. 14. In view of what has been discussed above, this Transfer Application, being devoid of merits, stands rejected.