HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Court No. - 34 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 64 of 2008 Applicant :- Rakesh Srivastava "Nyayik" Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Sanjay Srivastava,S.I.Siddiqui,S.M.A. Kazmi,Tahira Kazm i Counsel for Opposite Party :- Govt. Advocate,Manish Tewari Hon'ble Sudhir Agarwal,J.
1. Heard Sri S.M.A.Kazmi, learned Senior Advocate, assisted by Sri Saiful Islam Siddiqui, learned counsel for the applicant, Sri Ankur Tandon, Advocate, holding brief of Sri Manish Tewari, learned counsel for opposite party no.2, learned A.G.A and perused the record.
2. This is an application under Section 407 Cr.P.C. filed by applicant seeking transfer of Session Trial No.201 of 2007 (State Vs. Rakesh Srivastava Nyayik), pending in the Court of Special Judge, SC/ST Act, Varanasi to some other district on the ground that opposite party no.2, complainant, is influential person in Varanasi and therefore, applicant has several apprehension, which have been detailed in the application.
3. In fact further proceeding of trial was stayed by this Court in 2008 and for the last six years and more, nothing has proceeded in the matter.
4. Facts in brief as disclosed in the affidavit accompanying transfer application are, that, the applicant is a social worker. He is also author of the book on the subject of Life of prisoners in U.P., titled as "Jail Apradh". A number of other facts have been stated in respect of various other litigations in which the applicant is involved, which, according to him were for reform of social system, exposure of mafia, bureaucrats and politicians' nexus etc, which in my view is not necessary to be detailed so far as this transfer application is concerned. Suffice it to mention that the applicant is a retired Custom Officer. FIR was lodged on 27.05.1990 by the applicant's father against one Rajendra Kumar Gaur who is alleged to be closest man of Awadhesh Rai, brother of respondent no.2. In the aforesaid matter, chargesheet was filed and Sessions Trial No. 155 of 1991 under Sections 452/307/504 IPC commenced in the Ciourt of 8th Additional Sessions Judge, Varanasi. It is said that the aforesaid report caused reason of enmity between applicant and his family vis a vis the family of Awadhesh Rai, elder brother of respondent no.2 Ajay Rai.
5. Respondent no.2 lodged a report against applicant, being Case Crime No. 229 of 1991, under Sections 147/148/149/302 IPC, at P.S. Chetganj on 3.8.1991 reporting an incident of firing in which Awadhesh Rai, brother of respondent no.2 died. The applicant was named as one of the accused therein along with Mukhtar Ansari, Kamlesh Singh, Bheem Singh and Abdul Kalam.
6. Police submitted chargesheet no.101 of 1991 dated 02.10.1991 whereupon the Court took cognizance and trial proceeded against applicant and others. The applicant is being tried in Sessions Trial No. 201 of 2007 under Sections 147/148/149/302 IPC.
7. It is said that respondent no.2 used to threat the applicant in Court premises to eliminate him. The applicant brought this fact to the notice of Court vide application dated 23.11.2007 and 26.11.2007, whereupon trial court sought report from Senior Superintendent of Police, Varanasi (hereinafter referred to as "S.S.P.") vide order dated 07.12.2007. The report was submitted on 10.12.2007 in which threat to safety of applicant was confirmed by S.S.P. and he clearly said that trial involves a notorious criminal mafia and may go to the extent of eliminating, even by taking recourse to help of unsocial elements. He recommended that trial may be held at Central Jail Varanasi, instead of Court premises. It is in these circumstances, this application has been filed seeking transfer of Sessions Trial No. 201 of 2007 to some other district from Varanasi.
8. At the initial stage, when this matter was taken up by on 29.01.2008, notice was issued to respondent no.2 and learned A.G.A. was also permitted to file counter affidavit. The Court in the meantime, stayed further proceedings in the aforesaid Sessions Trial until further orders. That is how trial has not proceeded at all for the last more than six years.
9. A Parcha has been filed by Sri Ashwini Kumar Awasthi and Manish Tiwary Advocates on behalf of opposite party but no counter affidavit has been filed at all.
10. On behalf of the State respondent no.1, a counter affidavit through Additional Government Advocate has been filed stating that the present application has been filed only to linger trial and therefore, it should be rejected. It is said that the applicant even otherwise has no grievance and he can always approach S.S.P. for redressal of his grievance.
11. When this matter was taken up for hearing, learned counsel appearing for respective parties did not seriously dispute transfer of trial. Report of SSP which has been filed as Annexure 18 to the application is self speaking and paragraphs no. 3 and 4 thereof may be reproduced as under:
^^3- mDr eqdnesa dh lquokbZ ,d dq[;kr ekfQ;k ds fo:) py jgh gSA og vius fo:) lk{; dks lekIr djus ds fy;s fdlh Hkh vlekftd rRo dk lgkjk ysdj ?k`f.kr dk;Z djk ldrk gSA 4- mDr fjiksVZ }kjk mijksDr eqdnesa dh lquokbZ U;k;ky; ds ctk; lsUVªy tsy] okjk.klh esa djk;s tkus dk vuqjks/k fd;k x;k gSA** "3. Hearing of the aforesaid case is going on against a notorious Mafia. In order to eliminate evidence against him, he can take resort to any vicious act with the help of unsocial elements.
4. Through the aforesaid report, a prayer for conducting hearing of the aforesaid case at Central Jail, Varanasi instead of Court, has been made."(English translation by Court)
12. The aforesaid report, facts and recommendation contained in paras 3 and 4 of the report of S.S.P., as noted above, show seriousness of the matter and degree of threat perception in the case in hand. This fact by itself is sufficient for this Court to pass appropriate order so that trial must conclude expeditiously and within reasonable time but without possibility of any untoward incident. In case like the present one, final adjudication of the matter at the earliest is of utmost importance. In the garb of transfer application, trial in the matter of a heinous crime can/should not be allowed to remain suspended for a long time.
13. Power under Section 407 Cr.P.C. can be exercised by this Court where it is made to appear:
(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 this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.
14. The Court, therefore, can act suo moto or when such an request comes from Court below or on an application made by a party concerned. The conditions, on which the power can be exercised under Section 407 Cr.P.C., are:
(i) fair and impartial inquiry or trial cannot be had;
(ii) some question of law of unusual difficulty is likely to arise;
(iii)an order under Section 407 Cr.P.C. is required by any provision of Code of Criminal Procedure, i.e., Cr.P.C.;
(iv) it will tend to the general convenience of the parties or witnesses;
(v) it is expedient for the ends of justice.
15. Mere allegations like substantial prejudice, non-availability of congenial atmosphere for a free trial cannot be held the sole ground of transfer. Mere apprehension is not enough unless it is supported with some material. A party, either complainant or the accused should not ordinarily be allowed to have the Forum of his/her own choice. A transfer applicant cannot be allowed to make unfounded charges. A transfer should not be granted on a fancied notion of a litigant. Where the ground for transfer is not substantiated and as such does not exist, the application for transfer should not be allowed. It should not be allowed to help a litigant to choose a Bench of his own choice.
16 In Vijay Pal and others Vs. State of Haryana and another 1999 (9) SCC 67, the Court said that in absence of any justified reason, it is not proper and legal to exercise power under Section 407 Cr.P.C.
17. Looking to the entire facts of the case and also with consent of learned counsel appearing for parties, for transfer of trial at Allahabad, in my view, it would be appropriate if the aforesaid Sessions Trial is transferred to Allahabad with appropriate direction for its expeditious adjudication and conclusion.
18. The application is accordingly disposed of. I direct that Sessions Trial No. 201 of 2007 (State Vs. Rakesh Srivastava Nyayik), pending in the Court of Special Judge, SC/ST Act, Varanasi shall stand transferred to a competent Sessions Court at Allahabad. The trial court at Varanasi shall forthwith transmit record of the aforesaid trial to Allahabad and the District and Sessions Judge, Allahabad, after receiving record, shall either hear the case himself or nominate any other Court of competent jurisdiction for trial, expeditiously. The Court at Allahabad shall make endeavour to conclude trial within six months. In case the Presiding Officer of Trial Court at Allahabad finds difficulty in completion of trial within six months, a progress report, justifying extension of time shall be submitted to this Court, before expiry of the period of six months, for appropriate order. If any such report or application is submitted by Trial Court, the Registry shall place the same before Court for appropriate order.
19. Before parting, this Court would like to place on record another aspect, which has seriously disturbed it. It is evident from the record that earlier Sessions Trial No. 201 of 2007 was proceeding against the applicant and other co-accused. However, the Trial Court used to adjourn, noticing the message conveyed to it by a co-accused or the complainant's witness that they shall not remain present in Court on that date and, therefore, the matter should be adjourned. Similarly on another date, again trial was adjourned because the accused detained in jail could not be produced by jail authorities. Two orders of Trial Court dated 19.12.2007 and 08.01.2008 are on record as Annexure 22 to the affidavit filed in support of transfer application. It would be appropriate to reproduce orders dated 19.12.2007 and 08.01.2008, passed by Trial Court, to see the manner, in which, Trial Court was adjourning the case, as if it was working under the command of the accused or complainant. In fact the tone and tenor of the order is sufficient to show otherwise influence enjoyed by such persons. The orders dated 19.12.2007 and 08.01.2008 read as under:
^^19-12-07 46&[k] 47&[k] 48&[k] 49&[k] 50&[k vkt eqdnek izLrqr gqvkA vkt vfHk;qDr eq[rkj vgen is'kh ij vfHkj{kk esa xkthiqj tsy ls ugha vk;saxs D;ksafd bl ckcr xkthiqj tsy v/kh{kd dk i= Hkstk x;k gS tks i=koyh esa 50[k layXu gSa ! vfHk;qDrx.k jkds'k dqekj JhokLro] deys'k dh gktjh ekQh dh nj[okLrA is'k gksdj vkns'k gqvk fd vkt ds fy, Lohd`rA vkt vt; jk; xokg ds rjQ ls muds vf/koDrk us izkFkZuk i= fn;k fd os xSj ftyk x;s gSaA vkt mifLFkr ugha jgsaxs] vr% vYi frfFk gsrq izkFkZuk Lohd`rA eqdnek fnukad 08-01-2008 okLrs 'ks"k ftjg is'k gSA** ^^08-01-08 51&[k] 52&[k] 53&[k] ^vkt eqdnek izzLrqr gqvkA vfHk;qDr jkds'k dqekj U;kf;d dh gktjh vkt muds vf/koDrk }kjk ekQ dh x;hA eqyfteku Hkhe flag o deys'k ftyk dkjkxkj xkthiqj ls ryc gksdj U;k;ky; esa is'k ugha fd;s x;sA vfHk;qDr eq[rkj vgen ds ckjs esa ftyk dkjkxkj v/kh{kd xkthiqj ls i= ds lkFk Nk;k izfr esfMdy Hksth x;h gS fd mudks is'kh ij Hkstuk laHko ugha gS D;ksafd chekj gSaA vkt vfHk;qDrx.k ds vf/koDrk mifLFkr gSaA vkt oknh vt; jk; ds vf/koDrk }kjk izkFkZuk i= izLrqr fd;k x;k fd os xSj ftyk ls okil ugha vk;s gSa vr% vYi frfFk okLrs - - - fu;r fd;k tk;A nj[kkLr ,Mhthlh dksVZ }kjk lefiZr fd;k x;kA vr% Lohd`r fd;k x;kA i=koyh fnukad 22-01-2008 okLrs 'ks"k ftjg ihMCyw0 1 is'k gksA** "19-12-07 46 Kha, 47-Kha,48-Kha,49-Kha, 50 Kha Case was presented today. Today accused Mukhtar Ahmad in custody shall not appear before the Court from Ghazipur Jail because in this regard a letter of Ghazipur Jail Superintendent has been received which is enclosed to file as Paper no. 50 Kha. Application of accused Rakesh Kumar Srivastava and Kamlesh for exemption from personal appearance, presented and ordered- Allowed for today. On behalf of witness Ajay Rai, his counsel has given application that he has gone outside the District and will not remain present, therefore the adjournment application for a short period, is allowed. The case be placed on 08.01.2008 for remaining cross examination.
"08.01.2008 51 Kha, 52-Kha,53 Kha Case was presented today. Personal appearance of accused Rakesh Kumar exempted through counsel. Accused Bheem Singh and Kamlesh were not produced in Court from District Jail Ghazipur. With respect to accused Mukhtar Ahmad, medical certificate along with a letter has been sent by the Superintendent, District Jail, Ghazipur, stating that it is not possible to present him in Court because he is ill. Counsel for accused persons is present today. An application has been moved by counsel for complainant Ajay Rai, praying that he has not come back from outside the district, hence the case may be fixed after short period..... Application moved in Court by ADG (ADGC). Hence, allowed. File be put up on 22.01.2008 for remaining cross examination of PW-1."
20. This attitude of Presiding Officer of Trial Court, proceeding on the dictates of either accused or complainant, or on mere inaction on the part of jail authorities in producing accused before it in their own discretion and command, deserves to be condemned and deprecated seriously. It appears as if the Trial Court proceeded snail pace for convenience of the accused and others and under their command. The two orders placed on record do not show that it was the Presiding Officer of Trial Court who was commanding proceedings of his Court. Once trial starts, it is duty of Trial Court to proceed with trial on day to day basis and complete it without any unnecessary delay. If jail authorities, including Jail Superintendent and concerned police authorities are acting with laxity, causing non-production of accused, detained in jail, on the date fixed before Trial Court, enough powers are conferred upon Trial Court to take appropriate action against such erring officials but instead thereof, it has chosen to simply adjourn the matter as if it is solely helpless. This Court could not understand as to why appropriate action against erring officials of jail authorities was not recommended by Trial Court to higher authorities, besides taking judicial deterrent action available under various statutes, by itself.
21. It is in these circumstances, taking cognizance of the manner, in which trials in certain criminal cases, where accused etc. are quite influential, resourceful and powerful personalities, do not proceed with due expedience, some directions are required be issued. I order accordingly and as under:
(I)It shall be personal as well as official responsibility of jail authorities including Jail Superintendent/ Jailer as also local police authorities to ensure that all the accused are presented, without fail, in concerned Court(s) on the date fixed for trial.
(II)In case any accused is not able to go to Court on account of medical reason(s), a proper certificate issued by Government Medical Officer. Jail Doctor, duly countersigned by Chief Medical Officer concerned must be produced before the Court concerned. In appropriate cases wherever Trial Court finds any reason for doubt or suspicion, it shall take appropriate steps for verification of such ground of non-production of accused in Court.
(III)In case there is any laxity or failure on the part of authorities concerned, Courts concerned shall take immediate deterrent action against erring officer/officials. It will also be open to them to make reference for contempt to this Court under Contempt of Courts Act 1971.
(IV)I also direct the Chief Secretary, Government of U.P., Lucknow, Principal Secretary, Home, Government of U.P. Lucknow, Director General of Police, U.P., Lucknow and Additional Director General (Prison), U.P., Lucknow to take appropriate steps in this regard and issue necessary directions to all the jail authorities to ensure presence of all under-trials before the Court(s) concerned on the date fixed for trial.
(V)Similarly, if any other witness or complainant is causing delay in trial, appropriate action must be taken against him/them also, in the same manner.
22. Registrar General is directed to serve a copy of this order to the Chief Secretary, Government of U.P. Lucknow, Principal Secretary, Home, Government of U.P., Lucknow, Director General of Police, U.P., Lucknow, Additional Director General (Prison) Government of U.P., Lucknow for communication forthwith. They shall also submit compliance report after three months i.e., 20th January 2015.
23. Let a copy of this order be circulated to all the Judicial Officers in the State of U.P. through concerned District Judges for communication and compliance.
Order Date :- 15.10.2014 KA/Akn