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2024 DIGILAW 2480 (ALL)

Dinesh Kumar v. State of U. P.

2024-12-06

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : Nalin Kumar Srivastava, J. 1. Heard Shri Manoj Kumar Yadav, learned counsel for the applicant, Shri Rajendra Babu Gaur, learned counsel for the opposite party no. 2 and the learned AGA for the State. 2. This is an application filed under Section 407 Cr.P.C. seeking transfer of the proceedings of Session Trial No. 351 of 2015, arising out of case crime no. 256 of 2014, under Sections 307 , 504, 506 IPC, Police Station-Hasayan, District-Hathras pending in the Court of Additional District and Sessions Judge-Ist Hathras to any other competent Court in the same district. 3. It is submitted by the learned counsel for the applicant that on 18.7.2024 when the applicant/informant came to the Court at Hathras for pairvi of his case he saw the accused/opposite party nos. 2 and 3 coming out from the chamber of the Presiding Officer, A.D.J.-I. Hathras and chatting that they have made an adjustment with the Presiding Officer for their acquittal in this matter and now they will be acquitted in this matter. Hence, the applicant/ informant is under genuine apprehension that he might not get justice from the said Court. The District and Sessions Judge, Hathras by an illegal and arbitrary order dated 2.8.2024 rejected the transfer application moved by the applicant and that is why the present transfer application has been moved before this Court. Hence, it is expedient in the interest of justice to transfer the said case from the Court of Additional District and Sessions Judge-I, Hathras to any other competent Court at the same district. 4. Learned AGA and learned counsel for the opposite party nos. 2 and 3 have vehemently opposed the prayer and submitted that there is no substance in the allegations made in the transfer application against the Presiding Officer of the Court concerned and the transfer application is liable to be rejected. 5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully. 6. The allegation made in the instant transfer application is nothing but wastage of valuable time of this Court. Only on the ground of over hearing of some chatting between the accused persons the present transfer application has been moved. 6. The allegation made in the instant transfer application is nothing but wastage of valuable time of this Court. Only on the ground of over hearing of some chatting between the accused persons the present transfer application has been moved. It is very surprising that the confidence of the applicant/ informant over the judicial system has been shaken only on the ground of some gossips made by the accused persons. 7. It has now become a fashion to make false allegations against the Presiding Officer of any Court and they are taken as helpless and easily approachable persons who may be approached by any public person in respect of their judicial functions. There is no convincing allegation having some substance against the Presiding Officer concerned in the instant matter and there is no valid ground to transfer the case. 8. To quote the views expressed by His Lordship Justice R.V. Raveendran, Judge, Supreme Court of India in the article 'Strengthening Justice Delivery System-Some Challenges & Solutions' published by the Karnataka Judicial Academy is relevant here, which is extracted as herein-below: "When a Judge has a particular philosophy, as for example, when a Judge is an 'acquitting Judge' everyone in the legal fraternity will know that his judgments will have a high percentage of acquittals. Unscrupulous court- clerks and lawyers knowing about the 90% chance of acquittal will inform the accused or his relatives that they can influence the decision and take money in the name of the Judge. When the innocent Judge renders the judgment of acquittal, he earns the sobriquet of a 'corrupt Judge' from the litigant or his family. When the judge convicts the accused, the money is returned by the clerk/lawyer saying that the deal did not go through. There are several other instances where Judges are wrongly blamed of corruption." 9. I would like to further quote His Lordship's words in the above mentioned article, which is extracted as herein-below: "Normally, the losing side is dissatisfied with the decision. Further, if a judge is firm and refuses unwarranted requests for adjournment, he incurs the displeasure of the lawyers. Parties are interested in getting interim reliefs and lawyers expect judges to be liberal in granting interim orders/bails, etc. The judges who are firm and strict in granting interim orders/bails become unpopular. Further, if a judge is firm and refuses unwarranted requests for adjournment, he incurs the displeasure of the lawyers. Parties are interested in getting interim reliefs and lawyers expect judges to be liberal in granting interim orders/bails, etc. The judges who are firm and strict in granting interim orders/bails become unpopular. This leads to certain unsuccessful litigants, and unfortunately a section of the Bar, indulging in unnecessary character assassination of judges, by sending anonymous complaints and sometimes even signed complaints. Even judges of High Courts are subjected to such frivolous complaints. While serious complaints supported by some material certainly require action, there is a tendency on the part of some High Courts/High Court judges/vigilance departments to suspect judicial officers or initiate action merely on the basis of anonymous complaints. High Courts should ensure that vigilance section acts fairly and properly without harassing judges and at the same time, taking action on genuine complaints. Instances are not wanting where disgruntled elements have unjustly heaped complaints on judicial officers who are on the verge of promotion, thereby denying them the benefit of promotion or delaying their promotions. High Courts should protect judges from malicious attacks, false propaganda, etc. to save judges from trauma, anxiety and depression." 10. No doubt the transfer of criminal case is justified when there is a reasonable apprehension in the mind of the accused that he may lose a fair and impartial trial but at the same time the apprehension in the mind of the accused, who doubts the fair trial, has to be seen as that of a reasonable and prudent man, before making any direction to transfer a criminal case. Actually a fanciful and imaginary apprehension of the accused has to be curved and not entertained. 11. The Hon'ble Supreme Court considering a reasonable apprehension of bias held in Manak Lal Vs. Dr. Prem Chand Singhvi , AIR 1957 SC 425 that: "........Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgement; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. In such cases the test is not whether in fact a bias has affected the judgement; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. There is also good grounds for transfer of a case where the High Court is satisfied that even though the Judge is free from any bias and his impartiality is above question, there exist circumstances which may cause a reasonable apprehension in the mind of a party that justice will not be done to his case. In the latter contingency the case has to be transferred to uphold the settled principle that not only justice should be done by the Courts, but it should also be shown to be done....................." 12. Further, the Hon'ble Apex Court in Monica v. State of Rajasthan , AIR 2010 SC 103 has held that 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. 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. 13. So far as the case in hand is concerned, the allegation made by the applicant is only to the effect that the applicant saw opposite party nos. 2 and 3 coming from the chamber of the Presiding Officer concerned and overheard their chatting that they had got an assurance from the Presiding Officer for their acquittal. No allegation has been levelled against the concerned Presiding Officer for any of his previous bad history or lack of integrity. Only on the ground of some overheard statements, the transfer application has been moved against the Presiding Officer concerned. The allegation made in the transfer application fails in the test of reasonable apprehension. 15. No allegation has been levelled against the concerned Presiding Officer for any of his previous bad history or lack of integrity. Only on the ground of some overheard statements, the transfer application has been moved against the Presiding Officer concerned. The allegation made in the transfer application fails in the test of reasonable apprehension. 15. In view of the aforesaid discussions, in my opinion, it is not a fit case to transfer of the aforesaid Session Trial to any other competent court. The present transfer application is, accordingly, rejected.