JUDGMENT Rajesh Singh Chauhan, J. Heard Sri Jyotindra Mishra, learned Senior Advocate assisted by Sri Ashish Kumar Singh, learned counsel for the petitioner, learned Additional Government Advocate for the State and Sri Naved Ali, learned counsel for the opposite party No.2. 2. A detailed order has been passed today i.e. 20.01.2023 in the connected application bearing TRANSFER APPLICATION (Criminal) No.124 of 2022 filed under Section 407 Cr.P.C., which reads as under:- "Heard Sri Jyotindra Mishra, learned Senior Advocate assisted by Sri Ashish Kumar Singh, learned counsel for the applicant, learned Additional Government Advocate for the State and Sri Naved Ali, learned counsel, who has filed Vakalatnama on behalf of the opposite party No.2, the same is taken on record. By means of this application filed under Section 407 Cr.P.C., the applicant has prayed to transfer the Session Trial No.357 of 2011 (State v. Shambhu Nath Singh and others) arising out of Case Crime No.555 of 2010, under Sections 147, 149, 307, 504 & 506 I.P.C. and Section 27 Arms Act relating to Police Station-Maharajganj, District-Faizabad from the learned Court of Additional Sessions Judge, Court-III, M.P./ M.L.A., Faizabad to the Sessions Court of any district designated for M.P./M.L.A. cases in the interest of justice. The applicant has further prayed that till disposal of this application, the aforesaid may be stayed. It appears that after hearing at substantial length, this Court has passed a detailed order on 21.12.2022, which reads as under:- "1. Heard Sri Jyotindra Nath Mishra, learned Senior Counsel, assisted by the counsels appearing for the learned counsel for the applicants and Sri Rao Narendra Singh, learned additional government advocate. 2. Notice on behalf of the State has been accepted by Shri Rao Narendra Singh, learned additional government advocate. 3. Issue notice to opposite Party number 2. 4. Steps by tomorrow for service of notice. 5. The present application under section 407 CrPC has been filed for transferring the proceedings of Session Trial No. 357 of 2011, State v. Shambhu Nath Singh and others, arising out of case Crime number 555 of 2010, under sections 147, 149, 307, 504, 506 IPC and section 27 of the Arms Act, P.S. Maharajganj District Faizabad, pending before the Additional Sessions Judge-IIIrd/MPMLA Court, Faizabad to any other special court of MPMLA in any other district. 6. 6. The ground taken for transferring the said proceedings to any other Court is keenness of the learned Presiding Judge to proceed with the case despite interim order passed by this court in an application under section 482 CrPC bearing No. 8264 of 2022. The order dated 17th November 2022 passed in the said application would read as under: "1. Notice on behalf of the State has been accepted by learned A.G.A. whereas notice on behalf of opposite party No.2 has been accepted by Mr.Naved Ali, Advocate. 2. Learned A.G.A. and Mr.Naved Ali, Advocate seek and are granted four weeks' time to file counter affidavit. 3. The petitioner is facing trial in S.T. No.357 of 2011 Case Crime No.555 of 2010 under Sections 147, 149, 307, 504, 506 IPC, 27 of the Arms Act, Police Station Maharajganj, District Ayodhya. After prosecution witness got examined, statement of the accused was recorded under Section 313 Cr.P.C. on 3.11.2022. The petitioner moved an application under Section 233(3) Cr.P.C. to examine defence witnesses. As many as 11 defence witnesses have been cited in the application. 4. Learned trial court has rejected the said application vide impugned order dated 11.11.2022 on the ground that all the witnesses who have been cited to be examined as defence witness in relation to the evidence given by P.W.-2, and the application has been filed only with a view to delay the trial. 5. Mr.Naved Ali, learned counsel appearing for opposite party No.2 submits that the case has now fixed for final hearing after rejecting the said application vide impugned order. 6. Learned counsel for the petitioner submits that learned trial court could have disallowed some of the defence witnesses but it has disallowed all the witnesses cited in the application. Defence has also right to examine witness(es) to support its defence, and trial court should not reject the application as a whole. 7. In view thereof, as an interim measure, it is provided that till the next date of listing of the case, further proceedings of Sessions Trial No.357 of 2021 shall be kept in abeyance. 8. Counsel for the petitioner may apprise this Court about genuine defence witness(es) whom they would like to examine in their favour. 9. List immediately after expiry of the four weeks. (Dinesh Kumar Singh, J.) " 7. 8. Counsel for the petitioner may apprise this Court about genuine defence witness(es) whom they would like to examine in their favour. 9. List immediately after expiry of the four weeks. (Dinesh Kumar Singh, J.) " 7. The said petition was listed before this court on 16 December 2022, however, due to paucity of time the court could not take up the case on the said date and no counter affidavit either on behalf of the State or on behalf of the complainant has been filed in this application. The learned presiding officer showed extreme promptness and eagerness to decide the said case despite pendency of the said application and fixed the case for final hearing on 19th December 2022. 8. Learned counsel for the applicant filed an application for extension of the interim order, as this court could not take up the case on 16 December 2022 and this court vide order dated 19th December 2022 extended the interim order till the next date of listing of the said application. 9. This Court has been informed that despite the order dated 19 December 2022 passed by this court in the said application extending the interim order till the next date of listing of the application and the said order having been communicated to the presiding officer, he has fixed the case today for hearing. It has been said that the aforesaid fact itself would disclose that the learned Presiding Judge has pre-determined the issue and very keen and eager to decide the case for the reasons best known to him. 10. It has been further said that the Presiding Officer is very close to very dear friend of the complainant. Some photographs have also been annexed with this application, which would show extreme closeness of Mr. Shitla Pathak with Indra Pratap Tiwari, who is opponent of the co-accused and ex-legislator who has been convicted and sentenced by the learned trial court. Mr. Shitala Pathak is a close associate of the complainant. It is also submitted that sister of Mr. Shitla Pathak is married to the younger brother of the Presiding Judge, and this is the reason for showing extreme urgency in the matter, despite the interim order passed by this court. Mr. Shitala Pathak is a close associate of the complainant. It is also submitted that sister of Mr. Shitla Pathak is married to the younger brother of the Presiding Judge, and this is the reason for showing extreme urgency in the matter, despite the interim order passed by this court. There are other allegations made against the Presiding Judge and submitted that the accused in the case would not get fair trial and justice in the hands of the Presiding Officer as he enjoys close proximity with the complainant side. 11. Considering the aforesaid facts and circumstances of the case, I am of the view that this matter requires consideration and, therefore, testing the case on the principle that "justice should not only be done, but it should also be seen to be done" the further proceedings of Session Trial No. 357 of 2011, State v. Shambhu Nath Singh and others, arising Out Of Case Crime number 555 of 2010, under sections 147, 149, 307, 504, 506 IPC and section 27 of the Arms Act, P.S. Maharajganj District Faizabad, are hereby stayed until further orders. 12. Connect and list this application alongwith the application under section 482 bearing No. 8264 of 2022. 13. Let the District Judge, Faizabad submit a report on this application. 14. A copy of this petition be forwarded to the District Judge concerned for his report. 15. The comments must reach before this court before the next date of listing. 16. List this case on 16th January 2023. 17. Parties may get an authenticated and computerized copy of this order. (Dinesh Kumar Singh, J.)" I have perused the aforesaid order dated 21.12.2022 and what I find is that this Court has considered the relevant facts and circumstances of the issue in question and findings it proper that before passing any order the report from the District Judge, Faizabad should be called, therefore, such report has been called by the aforesaid order. The District Judge, Faizabad has filed his report dated 05.01.2023, which is on record. The learned District Judge was of the view that in compliance of the order of this Court a specific and categoric report should be called from the court concerned, therefore, the report from the Judge concerned was called and the concerning court has filed its report dated 05.01.2023 which is also on the record with the report of the District Judge. Learned Senior Advocate for the applicant has submitted that since this Court has already considered all the relevant facts and circumstances of the issue in question vide order dated 21.12.2022 wherein the order of this Court dated 17.11.2022 passed in the connected case filed under Section 482 Cr.P.C.has been indicated, therefore, considering the report of the District Judge any appropriate order may be passed in the interest of justice. Learned Additional Government Advocate has not disputed this submission of learned Senior Advocate for the applicant. However, Sri Naved Ali, learned counsel for the opposite party No.2 has stated that the trial in question is pending considering since 2011, therefore, after considering the report of the District Judge if this Hon'ble Court passes any order, atleast the interest of the complainant/ informant, may be protected and the direction may be issued to expedite the trial. Sri Naved Ali, learned counsel for the opposite party No.2 has drawn attention of this Court towards another petition bearing Criminal Misc. Case No.8264 (U/S 482 Cr.P.C.) of 2022, which is connected with this application wherein this Court has passed an order dated 17.11.2022 which has been referred in the order dated 21.12.2022 (supra), has submitted that for one reason or the other the trial of the case is being lingered on, therefore, the direction to expedite the trial may be issued in the interest of justice. Be that as it may, the perusal of the order passed by this Court which is a detailed order dated 21.12.2022 wherein the order dated 17.11.2022 passed in connected petition has been referred and the report of the District Judge, Faizabad, which is virtually a report of the court concerned, prima-facie reveals that such report is not properly explaining the queries of the court put forth vide order dated 21.12.2022, rather, by means of the explanation given by the court concerned, the observation given by this Court has been attempted to dispute. Therefore, without making any comments upon the court concerned, I find it appropriate in the ends of justice of parties that the present application filed under Section 407 Cr.P.C. be allowed. Accordingly, the present application is allowed. On being asked from learned counsel for the parties as to what are the nearby district to the district Faizabad, it has been informed that it might be the Districts Ambedkar Nagar, Barabanki or Lucknow. Accordingly, the present application is allowed. On being asked from learned counsel for the parties as to what are the nearby district to the district Faizabad, it has been informed that it might be the Districts Ambedkar Nagar, Barabanki or Lucknow. Since the District-Ambedkar Nagar is adjacent district of the District-Faizabad, therefore, if the trial in question is transferred to the District-Ambedkar Nagar it would not cause any inconvenience or prejudice either of the parties as initially the District-Ambedkar Nagar was the part of the District-Faizabad. Therefore, the Session Trial No.357 of 2011 (State v. Shambhu Nath Singh and others) arising out of Case Crime No.555 of 2010, under Sections 147, 149, 307, 504 & 506 I.P.C. and Section 27 Arms Act relating to Police Station-Maharajganj, District-Faizabad is hereby transferred to the Court of Sessions Judge/ Additional Sessions Judge, District-Ambedkar Nagar designated for M.P./M.L.A. cases. The District and Sessions Judge, Faizabad shall do the needful exercise transferring the complete paper-book of session trial in question from Faizabad to District-Ambedkar Nagar forthwith, say within a week and thereafter the District & Sessions Judge, Ambedkar Nagar shall handover the complete paper-book of the session trial in question to the designate court dealing with M.P.M.L.A cases forthwith, say within three days. It is also directed that the trial here at Ambedkar Nagar, shall proceed from the stage where it was being proceeded at M.P.M.L.A. Court Faizabad. In the order dated 21.12.2022, the reference of order dated 17.11.2022 passed in the aforesaid connected petition bearing Criminal Misc. Case No.8264 (U/S 482 Cr.P.C.) of 2022 has been given, therefore, it is directed the the designated court shall expedite the trial as no unnecessary adjournment shall be given to any of the parties. It is expected that the trial in question shall be conducted and concluded strictly in accordance with law with a maximum period of six months from the date of its transfer to the concerning court in terms of this order. No order as to the costs." 3. In the present case, learned counsel for the petitioner has assailed the order dated 11.11.2022 whereby the application of the petitioner dated 10.11.2022 for examining the defence witnesses, whose details have been indicated in that application, has been rejected vide order dated 11.11.2022 (Annexure No.17). 4. No order as to the costs." 3. In the present case, learned counsel for the petitioner has assailed the order dated 11.11.2022 whereby the application of the petitioner dated 10.11.2022 for examining the defence witnesses, whose details have been indicated in that application, has been rejected vide order dated 11.11.2022 (Annexure No.17). 4. Sri Jyotindra Mishra, learned counsel for the petitioner has stated that while rejecting the aforesaid application of the petitioner, the learned trial court has presumed the questions which might have been asked from the side of the petitioner for examining those witnesses, which is not permissible under the law. This is a right of the accused to request the court for examining the defence witnesses which are necessary for the learned trial court to arrive on proper conclusion. 5. On being confronted learned counsel for the petitioner as to what are the grounds indicated in the application dated 10.11.2022 on the basis of which the petitioner is willing to examine those defence witnesses as no reasons or grounds have been indicated in that application, on that learned counsel for the petitioner has stated that it is true that no grounds have been indicated in such application but if such application was not properly filed or the same was misconceived for any reason that application could have been rejected by the order simplicitor saying that such application bereft the reasons and grounds which may delay the trial which is going on since 2011 but while observing the grounds for rejection of the application the learned trial court has presumed the prospective questions and reasons which might have been asked from the side of the petitioner is also not permissible under law. 6. Having heard learned counsel for the parties and having perused the material available on record, after perusal of the application dated 10.11.2022 (Annexure No.17), I am unable to comprehend as to what was the actual purpose, reason or ground to examine those defence witnesses but if the examination of those defence witnesses are necessary then a reasoned application should have been filed keeping in view the fact that the trial in question is going on since 2011. No doubt, this is a right of the accused to call upon any witness whose examination is necessary in the ends of justice but if such application has been filed at appropriate stage, such application may not be rejected. No doubt, this is a right of the accused to call upon any witness whose examination is necessary in the ends of justice but if such application has been filed at appropriate stage, such application may not be rejected. However, at the same time, it is also incumbent upon the court concerned not to give any finding on the basis of presumptions presuming the reasons of such application. The learned trial court may not presume about the questions which might have been asked from the side of the accused/ defence and such application may not be rejected without considering properly the utility and worth of those witnesses for which the application has been filed. 7. In view of the above, I am of the considered opinion that the impugned order dated 11.11.2022 suffers from perversity and the illegality. 8. Accordingly, the order date 11.11.2022 passed by the learned Special Court, MP/MLA, Faizabad in Session Trial No.357 of 2011 (State v. Shambhu Nath Singh and others), arising out of Case Crime No.555 of 2010, under Sections 147, 149, 307, 504 & 506 I.P.C. and Section 27 Arms Act, Police StationMaharajganj, District-Faizabad is hereby set aside. 9. Since vide order dated 20.01.2023 passed in Transfer Application (Criminal) No.124 Of 2022 the trial in question has been transferred to the nearby district i.e. District-Ambedkar Nagar, therefore, if there is any valid purpose, ground or reason with the accused persons to examine any defence witness, such application may be filed with promptness, preferably, within a period of one week from the date when the Court concerned at District-Ambedkar Nagar starts trial of the case. If such application is filed, the same shall be disposed of within a week thereafter by affornding an opportunity of hearing to the parties concerned, strictly in accordance with law. 10. It is clarified that the court concerned at District-Ambedkar Nagar where the trial has been transferred shall conduct and conclude the trial, strictly in accordance with law, with expedition without giving any unnecessary adjournment to any of the parties and without there being influenced from any of the findings or observations given in this order as well as in the order of the transfer application. 11. In view of the aforesaid observations and directions, the instant petition is allowed. 12. No order as to the costs.