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2020 DIGILAW 932 (ALL)

Tarun Raj Singh v. State of U. P.

2020-06-08

SANJAY KUMAR SINGH

body2020
JUDGMENT : 1. Heard Shri Ram Bahadur Singh learned counsel for the applicant, Shri N.D. Rai learned Additional Government Advocate-1st assisted by Shri Virendra Kumar Maurya learned A.G.A. for the state of U.P./opposite party no.1 and perused the record. 2. This transfer application u/s 407 Cr.P.C. has been moved by applicant with the prayer to transfer the bail application No. 693 of 2019 (State Vs. Chandra Kumar Mishra), under Sections 323, 307, 504, 506 IPC and 3(2)5 SC/ST Act, Police Station Cantt., District Bareilly from the court of Special Judge SC/ST Bareilly to any other competent court of District court Bareilly. 3. Relevant facts of the case in brief as mentioned by the applicant in the present application are that the applicant is complainant, who has filed complaint dated 20.05.2016 against opposite party no.2 (Chandra Kumar Mishra) for the alleged offence under Sections 323, 325, 307, 357 IPC and 3(2)5 SC/ST Act, on which opposite party no.2 was summoned vide order dated 19.04.2018 by Special Judge, SC/ST Act, Bareilly to face trial. On 05.10.2019, opposite party no.2 filed his bail application praying therein to release him on bail. Thereafter applicant filed transfer application dated 11.10.2019 before District and Sessions Judge, Bareilly alleging that accused persons told the applicant that they are Brahmin by caste and the concerned Presiding Officer, who is their distant relative is also Brahmin by caste, therefore, they will get the relief from that court. It is also alleged that the opposite party no.2 has been spotted on several occasions by the applicant while coming out of the Court of the concerned judge and prayed therein to transfer bail application of opposite party no.2 from the court of Special Judge SC/ST Bareilly to any other competent court. On the aforesaid transfer application of the applicant, comment was called from the concerned presiding officer by the District Judge, Bareilly, who in turn submitted his report mentioning that apprehension expressed by the applicant is baseless, imaginary and fabricated. Neither he has any concern with the accused or complainant nor has any relation with them. On behalf of opposite party no.2 oral objection was raised before the District Judge, Bareilly, who after giving opportunity of hearing to the parties concerned rejected the transfer application (3 ka) of the applicant vide order dated 20.02.2020. Neither he has any concern with the accused or complainant nor has any relation with them. On behalf of opposite party no.2 oral objection was raised before the District Judge, Bareilly, who after giving opportunity of hearing to the parties concerned rejected the transfer application (3 ka) of the applicant vide order dated 20.02.2020. Grounds of transfer of case as mentioned in transfer application are reproduced herein-below:- ^^1- vfHk;qDrx.k lEcfU/kr ekeys ds ÁkFkhZ ls dgrs gS fd ge tkfr ls czkg~e.k gS vkSj tks tt lkgc ,lŒlhŒ@,lŒVhŒ dksVZ esa gS] oks Hkh czkg~e.k gS] ftuls gekjh nwj dh fj'rsnkjh gS] ftl dkj.k gesa bl U;k;ky; ls cgqr jkgr feysxhA 2- lEcfU/kr ekeys ds ÁkFkhZ us mDr vfHk;qDrx.kksa dks ,lŒlhŒ@,lŒVhŒ U;k;ky; ds tt lkgc ds pSEcj ls fudyrs dbZ ckj ns[kk gSA 3- ÁkFkhZ dks ,lŒlhŒ@,lŒVhŒ U;k;ky; ds tt lkgc ls fu"i{k U;k; dh dksbZ mEehn ugha gS] D;ksafd lEcfU/kr ekeys ds vfHk;qDrx.k dh tt lkgc ls dkQh utnhdh gSA** 4. Learned counsel for the applicant reiterating the aforesaid allegations submits that on the said facts, applicant apprehends that he will not get justice from the court where the bail application of the opposite party no.2 is pending. No other submission has been raised on behalf of the applicant. Lastly, it is submitted that transfer application of the applicant is liable to be allowed. 5. Learned Additional Government Advocate countered the aforesaid submissions of learned counsel for the applicant by contending that the District Judge, Bareilly has rightly rejected the transfer application (3 ka) of the applicant vide order dated 20.02.2020. Except the oral allegation levelled by the applicant there is no material on record in support of allegation levelled by the applicant. It is also submitted that no detail has been given by the applicant on how the opposite party no.2 is related with the concerned presiding officer. The transfer application has been moved by the applicant for ulterior motive on flimsy grounds, therefore same is liable to be dismissed. 6. It is also submitted that no detail has been given by the applicant on how the opposite party no.2 is related with the concerned presiding officer. The transfer application has been moved by the applicant for ulterior motive on flimsy grounds, therefore same is liable to be dismissed. 6. Here it is apposite to mention that in view of sub-section (1) of Section 407 Cr.P.C. a case can be transferred, whenever it is made to appear to High Court- (a) that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order under this section is required by any provision of the code of criminal procedure, or will tend to the general convenience of the parties or witness, or is expedient for the ends of justice. 7. The Apex court has on several occasions considered the issue of transfer of cases in different circumstances and after elaborate and wholesome treatment laid down guidelines in this regard, which would be useful to quote here. (i) In Gurcharan Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418 , the Apex Court held:- “13. …..A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.” (ii) In Maneka Sanjay Gandhi Vs. Rani Jethmalani (1979) 4 SCC 167 , the Apex Court has observed as under:- “2. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.” (ii) In Maneka Sanjay Gandhi Vs. Rani Jethmalani (1979) 4 SCC 167 , the Apex Court has observed as under:- “2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (iii) In K.P. Tiwari Vs. State of M.P. 1994 SCC (Cri) 712 Apex court has held :- “4....It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks-more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive.” (iv) In Abdul Nazar Madani Vs. State of Tamil Nadu (2000) 6 SCC 204 , the Apex Court observed as follows:- “7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any Court on even at any place, the appropriate Court may transfer the case to another Court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the Court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.” (v) In K. Anbazhagan Vs. Superintendent of Police (2004) 3 SCC 767 the Apex Court had held as follows:- “30. Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner.” (vi) In Zahira Habibulla H. Sheikh Vs. State of Gujarat (2004) 4 SCC 158 Apex court propounded that fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. (vii) In the case of Captain Amarinder Singh Vs. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. (vii) In the case of Captain Amarinder Singh Vs. Parkash Singh Badal and others (2009) 6 SCC 260 , the Apex Court while dealing with two transfer applications preferred under section 406 of the Code, on the ground that with the change in State Government, the trial was suffering setback due to the influence of the new Chief Minister as also the lack of interest by the Public Prosecutor, has observed in paras 18, 19 and 20 as follows:- “18. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether apprehension alleged is a reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. 19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. 20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one.” (viii) In the case of Nahar Singh Yadav and another Vs. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one.” (viii) In the case of Nahar Singh Yadav and another Vs. Union of India and others JT 2010 (12) 641, the Apex Court has observed as follows:- “Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:- (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and nonofficial witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.” (ix) In Lalu Prasad Vs. State of Jharkhand (2013) 8 SCC 593 , Apex court has observed as under. :- “20. State of Jharkhand (2013) 8 SCC 593 , Apex court has observed as under. :- “20. Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent.” (x) This Court in case of Amit Agarwal Vs. Atul Gupta 2014 (11) ADJ 414 (All.) considering the scope of transfer in such a matter has held that:- "24. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448 ; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26) 25. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer. 26. vs. Jamia Masque and Anr., AIR 2003 AP 448 ; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26) 25. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer. 26. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice." (xi) The Apex Court in case of Usmangani Adambhai Vahora Vs. State of Gujarat and another (2016) 3 SCC 370 considering the previous judgments of the Supreme Court has held:- “Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice.” 8. In view of dictum and guidelines laid down by the Apex court, as mentioned above, this court is also of the view that the power of transfer of a case must be exercised meticulously with precision under compelling circumstances, where on the basis of material on record it appears to the court that there is strong reason for doing so and by not transferring the case there would be miscarriage of justice. No universal or hard and fast rules can be applied for deciding a transfer application which has always to be decided on the basis of facts of each case. No universal or hard and fast rules can be applied for deciding a transfer application which has always to be decided on the basis of facts of each case. It is also well settled that the apprehension concerned, has to be one which would establish that justice will not be done. The apprehension of not getting a fair and impartial justice is required to be reasonable based on strong material and not hypothetical. Merely making vague allegation that there is an apprehension in the mind of applicant that justice will not be done in a given case alone does not suffice. 9. Considering the facts and circumstances of the case and submissions of learned counsel for the parties in the light of guidelines laid down by the Apex court, I find that allegations leveled by the applicant as mentioned above are wholly vague and general in nature, which are not supported by any material on record. Now a days such kind of frivolous allegations and triviality are being used unflinchingly by one party of a case as a tool to pressurize the presiding officer to settle its personal score. Entertaining such kind of frivolous allegations without any strong material on record will indirectly cast stigma upon the concerned Presiding Officer for no fault of his. Any such attempt made by any person must be discarded in order to maintain judicial discipline, otherwise on each and every step of proceeding either party will try to hamper the judicial proceeding adopting different modus operandi in justice delivery system and it will very difficult for them to discharge their judicial function with free mind. In the opinion of this court apprehension expressed by the applicant is not reasonable. There is no basis for the apprehension of the applicant that he will not get proper justice. There is nothing on record to indicate that the presiding officer has done any act calculated to create such an apprehension in the mind of the applicant. Illegitimate apprehension without any basis/material on record cannot constitute a legitimate ground to transfer a case from one court to another court. The grounds set out by the applicant do not justify the transfer of case as prayed by the applicant. I do not find any good ground to interfere in the matter. There is no error or illegality in the order dated 20.02.2020 passed by District Judge, Bareilly. 10. The grounds set out by the applicant do not justify the transfer of case as prayed by the applicant. I do not find any good ground to interfere in the matter. There is no error or illegality in the order dated 20.02.2020 passed by District Judge, Bareilly. 10. Consequently transfer application being sans merit stands dismissed. 11. Office is directed to communicate this order to the concerned court below within two weeks.