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2024 DIGILAW 1006 (ALL)

Ram Hari Sharma v. State of U. P.

2024-04-08

SANJAY KUMAR SINGH

body2024
JUDGMENT Sanjay Kumar Singh, J. Heard Mr. Pankaj Shukla, learned counsel for the applicant, Mr. Kapil Deo Yadav, learned Additional Government Advocate assisted by Ms. Pratiksha Rai, learned Brief Holder for the State of U.P./opposite party no.1 as well as Mr. Swetashwa Agarwal, learned counsel appearing on behalf of opposite party Nos. 2 to 17 and perused the record. 2. This transfer application Under Section 407 Cr.P.C. has been moved by the applicant with a prayer to transfer the Session Trial No. 311 of 2017 (State v. Devendra Agarwal and others), arising out of Case Crime No. 18 of 2017, under Sections 147, 148, 149, 307, 302, 427, 325 IPC., Police Station Sahpau, District Hathras, pending before the Special Court (MP/MLA), Hathras, from District Hathras to any other district. 3. Brief facts of the case which are required to be stated are that the applicant Ram Hari Sharma lodged a first information report on 08.02.2017 with regard to an incident which took place on the same day i.e. on 08.02.2017 for the alleged offence under Sections 147, 148, 149, 307 302 and 427 I.P.C. against Devendra Agarwal (MLA Samajwadi Party), Atul Agarwal, Chandan Agarwal, Rakesh Agarwal, Vinit Gupta and 25 to 30 unknown persons. After culmination of investigation, charge-sheet was submitted against 16 accused persons, who have been arrayed as opposite party Nos. 2 to 17 in the present Transfer Application and their trial is going on before Special Court (MP/MLA), Hathras, in which all the 16 prosecution witnesses have been examined up to 20.07.2023. 3.1 At that stage on 04.07.2023 the applicant (complainant) has preferred Transfer Application No. 441 of 2023 before this Court with a prayer to transfer the Session Trial No. 311 of 2017 from the Court of A.D.J./F.T.C. Ist, Hathras to the competent court of District Agra or any other place, mainly on the ground that the trial of this case is wrongly going on before the court of A.D.J./F.T.C. Ist, Hathras while the matter relates to the Court of MP/MLA. In the said Transfer Application a report was called for from the District Judge concerned vide order dated 20.07.2023. Pursuant to the said order, District Judge, Hathras submitted report dated 02.08.2023 along with administrative order dated 03.06.2021 issued by Joint Registrar (J) (Services) High Court. In the said Transfer Application a report was called for from the District Judge concerned vide order dated 20.07.2023. Pursuant to the said order, District Judge, Hathras submitted report dated 02.08.2023 along with administrative order dated 03.06.2021 issued by Joint Registrar (J) (Services) High Court. According to which, Smt. Parul Verma was empowered/authorised for exercising the power to try the criminal cases pending against elected MPs/MLAs in District Hathras. Thereafter, at the request of counsel for the applicant Ram Hari Sharma, the said Transfer Application No. 441 of 2023 was dismissed as withdrawn vide order of Coordinate Bench of this Court dated 22.08.2023. 3.2 Thereafter on 20.09.2023 the applicant has preferred the instant Second Transfer Application under Section 407 Cr.P.C. making allegation against Smt. Parul Verma, Presiding Officer of this cases. At the first hearing of this case opposite parties were directed to file counter affidavit and trial proceeding was not stayed, but from the side of the applicant repeated adjournments were being taken before the trial court on the ground of pendency of this Transfer Application before this Court. 3.3 On 01.02.2024 trial court has passed a detail order mentioning inter alia that:- "..........complainant by hook or by crook, when the entire evidence has been recorded before the undersigned, is playing tricks to delay the disposal of this case which ripened in July 23 for arguments and this Court is waiting for appropriate orders from Hon'ble High Court for 30 dates and the wait on part of complainants delay seems never ending. In various rulings it has been cited by Hon'ble Court that mere pendency of a case before Hon'ble Court does not amount to stay order. Therefore this Court, deems it proper to proceed with hearing of arguments and deliver the Judgment as the case cannot be let pending for long without any reason. Hence, this Court hereby directs the prosecution and the defence to put forth their arguments from the next date fixed. No adjournment from any side shall be entertained on the date fixed. Non compliance shall be dealt with adversely. Any effective order from Hon'ble High Court shall be welcomed and complied accordingly. Put up on 06/02/2024 at 12:15 p.m. for argument". No adjournment from any side shall be entertained on the date fixed. Non compliance shall be dealt with adversely. Any effective order from Hon'ble High Court shall be welcomed and complied accordingly. Put up on 06/02/2024 at 12:15 p.m. for argument". 3.4 Against the said order dated 01.02.2024 of the trial court, the applicant Ram Hari Sharma preferred a Special Leave Petition (Crl.) No. 1798 of 2024, which was disposed of by the Hon'ble Supreme Court vide order dated 09.02.2024, which is being quoted herein below: "We have heard learned senior counsels appearing for the parties. Though we are not inclined to grant relief sought for, suffice it to request the High Curt for Allahabad to dispose of the Transfer Application (Criminal)No. 623/2023 at the earliest, preferably within a period of four weeks from today. In the meanwhile, the trial Court proceedings shall go on. However, the trial court shall not pronounce any judgment till the orders of the High Court are passed. The Special Leave Petition is disposed of accordingly. Pending application, if any, shall stand disposed of." 3.5 On putting query with regard to present status of trial of S.T. No. 311 of 2017, learned counsel for the parties apprised this Court that after completion of prosecution and defence evidence and hearing the arguments of both the parties, the judgement was reserved by the trial Court on 12.03.2024, but pursuant to the direction given by the Hon'ble Apex Court in the order dated 09.02.2024, the judgment has not been delivered by the trial Court. 4. Main substratum of argument of learned counsel for the applicant is that Mr. Vinod Upadhyay, who is real uncle of one of the eyewitnesses, namely, Chiragveer Upadhyay, resides in Vinayak Sahkari Awas Samiti, Ghaziabad and he was Secretary of the said society from the year 2002 to 2011. Several relatives, namely, Prem Singh, Umendra Pal Singh, Divya, Ajay Kumar Singh and Jugal Kishor have also got the flats allotted in the Vinayak Sehkari Awas Samiti without payment of any allotment money. Several relatives, namely, Prem Singh, Umendra Pal Singh, Divya, Ajay Kumar Singh and Jugal Kishor have also got the flats allotted in the Vinayak Sehkari Awas Samiti without payment of any allotment money. The Presiding Officer, Smt. Parul Verma and Sandeep Chaudhary, Chief Judicial Magistrate, Ghaziabad were mounting pressure upon Vinod Upadhyay for not pressing the cancellation of allotment of their flats, but on not giving support by Vinod Upadhyay, they, in collusion with each other, got the F.I.R. lodged against Vinod Upadhyay, through an application under Section 156(3) Cr.P.C. and made him accused, in which Hon'ble Supreme Court has passed protective order in favour of Vinod Upadhyay. It is also submitted that Vinod Upadhyay has also made a complaint dated 20.07.2022 against Smt. Parul Verma on administrative side to the Registrar (Vigilance), High Court, Allahabad, on which the Administrative Judge vide order dated 12.10.2022 directed the office concerned to inform Vinod Upadhyay to submit his affidavit. Accordingly, a letter dated 15.11.2022 was issued to him by Registrar (J.) (Confidential) and in response Vinod Upadhyay submitted his affidavit dated 26.07.2022. Therefore, the applicant is under apprehension that he will not get justice from the Court of Smt. Parul Verma. Hence the trial of the accused/opposite party nos.2 to 17 is liable to be transferred from District Hathras to any other district. No other submission has been made. 5. Learned Additional Government Advocate as well as learned counsel appearing on behalf of opposite party Nos. 2 to 17 opposed the aforesaid submissions of learned counsel for the applicant by contending that applicant is habitual in making complaint against the Courts. In support of this submission, learned counsel for the accused-opposite parties has produced bail order dated 25.10.2017 of Devendra Agarwal/opposite party No. 2 passed by Coordinate Bench of this Court in Criminal Misc. Bail Application No. 22972 of 2017, wherein the Coordinate Bench of this Court has observed inter alia that "Learned counsel for the complainant also submitted an affidavit and imputed allegations on the Court itself." He has also produced a bail order dated 06.12.2017 of Atul Agarwal/opposite party no. 3 wherein on internal page no. 4, the trial court has made an observation that Ram Hari Sharma has also made a false complaint against him before Hon'ble the Chief Justice. 3 wherein on internal page no. 4, the trial court has made an observation that Ram Hari Sharma has also made a false complaint against him before Hon'ble the Chief Justice. Much emphasis has been given by contending that in the first Transfer Application No. 441 of 2023, no allegation had been levelled against the Presiding Officer Smt. Parul Verma before whom trial proceeded up to June, 2023 and at by that time, statement of all the prosecution witnesses were recorded before the trial court. It is also argued that against the order dated 01.02.2024 of the trial court, the applicant Ram Hari Sharma preferred a Special Leave Petition (Crl.) No. 1798 of 2024 but the Hon'ble Supreme Court did not interfere in the said order. So far as status of Mr. Vinod Upahdyay is concerned, it is argued that he is neither accused nor complainant nor witness in the present case (Session Trial No. 311 of 2017) therefore, he has no concern with the present case arising out of Case Crime No. 18 of 2017. It is also submitted that so far as the F.I.R. lodged against Vinod Upadhyay pursuant to application under Section 156(3) Cr.P.C. by the Jitendra Singh Thakur, father of Rinku Thakuropposite party no. 7 is concerned, the same is not related with the incident dated 08.02.2017 of this case, hence the same has no bearing upon this case and cannot said to be a cross case of this case. Applicant-Ram Hari, who is informant/complainant of this case did not file any complaint against the presiding officer and similarly Vinod Upadhyay, who had moved complaint dated 20.07.2022 against Smt. Parul Verma on administrative side to the Registrar (Vigilance), High Court, Allahabad is not the applicant in this Second Transfer Application. Lastly, it is submitted that applicant cannot be permitted to file successive Transfer Application, which is abuse of the process of law. It is also submitted that the speedy trial is fundamental right of the accused-opposite party no. 2 to 17. The trial was proceeding in the light of general direction of the Hon'ble Supreme Court for expeditious disposal of cases relating to MPs/MLA. This second Transfer Application has been moved by the applicant on the false facts with ulterior motive on flimsy grounds, therefore same is liable to be dismissed. 6. 2 to 17. The trial was proceeding in the light of general direction of the Hon'ble Supreme Court for expeditious disposal of cases relating to MPs/MLA. This second Transfer Application has been moved by the applicant on the false facts with 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. 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 well settled that in order to exercise the power of transfer under section 407 Cr.P.C., the apprehension has to be one which would establish that justice will not be done. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Merely making an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. 8. Considering the facts and circumstances of the case and submissions of learned counsel for the parties in the light of aforesaid principle, I find that in first Transfer Application no. 441 of 2023 filed by the applicant, no allegation was levelled by the applicant against the Presiding Officer Smt. Parul Verma. As per the complaint dated 20.7.2022, one of the allegations against the Presiding Officer Smt. Parul Verma is that she resides in the house of one Raj Kumar Agarwal, who is relative and business partner of Devendra Agarwal, whereas no corroborative material has been brought on record to prima facie establish the said allegations. In the complaint dated 20.07.2022, it is also alleged that Mr. In the complaint dated 20.07.2022, it is also alleged that Mr. Sandeep Chowdhary, ADJ, Hathras who is relative of Smt. Parul Verma and her husband Ajay Kumar-I had given threat to Vinod Upadhyay but date and time and manner of alleged threat has not been mentioned in the complaint. The allegations levelled by the applicant in this Transfer Application and by Vinod Upadhyay have been denied by the opposite parties no. 2 to 17. This Court vide order dated 1.4.2024, called a report from Senior Registrar (J) (Confidential) of this Court with regard to present status of said complaint dated 20.7.2022, who submitted its report stating inter-alia that the complaint dated 20.7.2022 of Shri. Vinod Upadhyay, resident of Ghaziabad made against Smt. Parul Verma, ADJ (FTC), MP/MLA, Hathras and her husband Sri. Ajay Kumar-I, ADJ (FTC), Hathras and Shri. Sandeep Chowdhary, the then CJM, Ghaziabad for misusing their post and harassing the complainant by not depositing any money for the flats bought in Vinayak Sarkari Awas Samiti, Ghaziabad was received in the section and has been consigned to record vide order dated 18.8.2023 of Hon'ble the Administrative Judge, Hathras. As such it is clear that on the administrative side also, no case for interference and action in the matter was found by the Hon'ble the Administrative Judge, Hathras. I also find that the alleged matter of Vinayak Sarkari Awas Samiti, Ghaziabad is not related to the incident dated 08.02.2017 of this case. It is also not in dispute that Hon'ble Supreme Court did not interfere in the above mentioned order dated 01.02.2024 of trial Court and the trial of the opposite party no. 2 to 17 is at stage of delivery of judgment. 9. The 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 can not 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. 10. Application being sans merit stands dismissed.