Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2203 (ALL)

Surendra Kumar Mishra v. State of U. P.

2019-09-19

RAM KRISHNA GAUTAM

body2019
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. This Transfer Application has been filed by Surendra Kumar Mishra, with a prayer for transferring Criminal Revision No. 192 of 2017, arising out of Complaint Case Nos. 6477 of 2016 and 111679 of 2017, Surendra Kumar Mishra vs. Ram Kumar Bajpayee and Others, under sections 147, 342, 377, 323, 392, 504 and 120-B of Indian Penal Code, of Police Station Collectorganj, District Kanpur Nagar, pending in the Court of Additional Sessions Judge, Court No. 13, Kanpur Nagar, to any other Court in Kanpur Nagar. 2. Learned Counsel for the applicant argued that the Transfer Application was moved before the Court of Sessions Judge, Kanpur Nagar, where applicant and his Counsel was compelled to not press Transfer Application, owing to it, Transfer Application was not pressed and as a result of which Transfer Application was rejected as not pressed by the learned Sessions Judge, Kanpur Nagar. Applicant was compelled to not press his Transfer Application because of refection of another Transfer Application, moved by Sunil Sahgal, for the same Criminal Revision from the same Court to some other Court, before the Court of Sessions Judge, Kanpur Nagar, which was rejected by above Court and applicant was directed for not pressing above Transfer Application. Hence, under above circumstances, Transfer Application No. 1726 of 2019, Surendra Kumar Mishra vs. State of U.P. and Another, was not pressed and was rejected on 26.8.2019. 3. For deciding this Transfer Application, perusal of section 407 of the Code of Criminal Procedure, 1973, would be necessary. 4. Proviso to section 407 of the Code of Criminal Procedure says that “Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.” 5. Hence, condition precedent for entertaining an Application, under section 407 of Cr.P.C. by the High Court, with a prayer for transferring a criminal case from one Criminal Court to another Criminal Court, in the same Sessions Division, is that Transfer Application, must be firstly moved before the Court of Sessions Judge and the same must be rejected by that Court. 6. Rejection of such Transfer Application means rejection on merits by assigning reasons and not rejection as not pressed. 6. Rejection of such Transfer Application means rejection on merits by assigning reasons and not rejection as not pressed. In the present case, Transfer Application has been rejected on the ground of not pressing the same, i.e. Transfer Application has not been rejected on merits. Hence, this Transfer Application, presented before the High Court, with a prayer for transfer of a Criminal Case from one Criminal Court to another Criminal Court, in the same Sessions Division, is not maintainable, at this stage, in view of proviso to section 407 of Cr.P.C. 7. However, it will not be out of place to mention that no Sessions Judge is expected to pressurise any applicant or his Counsel for not pressing a Transfer Application, moved before it, or any criminal or civil proceeding, pending before it Applicant may move Transfer Application before the Sessions Judge, Kanpur Nagar where it shall be heard and decided on merit only then after, applicant may be at liberty to approach this Court, under section 407 of Cr.P.C. 8. With aforesaid observations, this Transfer Application stands disposed of.