Sanjeev Gupta vs State Of U.P. & Another
2014 Latest Caselaw 7526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 534 of 2013
 

 
Applicant :- Sanjeev Gupta
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- M.N. Singh
 
Counsel for Opposite Party :- Govt. Advocate,Bhairo Prasad Dwivedi,Durjendra Prasad,Dwijendra Prasad,Kamal Kumar Singh,Uday Shanker Tiwari
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Vivek Dhaka, Advocate, holding brief of Sri M.N.Singh, learned counsel for the applicant, Sri Dwijendra Prasad, 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 Criminal Case No.2507 of 2012, Case Crime No.364 of 2011, (State Vs. Sanjeev Gupta) under Section 419, 420, 467, 468, 471, 120-B, IPC, P.S. Sidhari, District Azamgarh, pending in the Court of Chief Judicial Magistrate, Azamgarh to any other Court of competent jurisdiction outside district Azamgarh on the ground that son of complainant Shamsher Singh is a practicing advocate and registered with Bar Association of Tehsil Phulpur, District Azamgarh and complainant's counsel has engaged advocate, who is also an office bearer of Bar Association i.e. President of Bar Association, Civil Court, Azamgarh, therefore, Presiding Officer of Court is performing duties in the influence of aforesaid advocates and applicant has no scope of getting justice and fair trial in the matter.

3. The averments, in this regard, contained in paras 28 to 32 of the affidavit read as under:

"28. That, it is relevant to submit at this stage that the son of the complainant Shamsher Singh, namely Virendra Singh himself is a practicing Advocate and is registered with the Bar Association of Tehsil Phulpur, District Azamgarh and the learned counsel appearing for the complainant before the Court below is the President of the Bar Association of Civil Court, district Azamgarh; the complainant and his son Virendra Singh were only intending to some how get the applicant detained in custody for 24 hours inasmuch as the applicant is a Class-II government servant so as to adversely affect his service record. All out efforts were made at the end of the complainant, his son Virendra Singh and his learned counsel intending to achieve the aforesaid motive to some how get the applicant detained in jail inasmuch as the bail-application of the applicant was bound to be allowed by the Sessions Judge in the light of the fact that all other co-accused had already been enlarged on bail.

29.That, the complainant and his son Virendra Singh ultimately succeeded in their motive inasmuch as the counsel for the complainant (who is the President of the bar Association, Civil Court, District Azamgarh) along with a large number of other learned Advocates, barged into the Chamber of the learned Sessions Judge and started hurling slogans opposing the fact that the bail-application of the applicant had been transferred for consideration before the Court No. 3.

30.That, apart from the aforesaid, the complainant, his son Virendra Singh and his learned counsel also succeeded in pressurizing the learned District Government Counsel (Criminal) for some how getting the matter adjourned on 12.9.2013 as a result whereof eventually the bail-application of the applicant could not be considered on 12.9.2013 and the matter was fixed for next day i.e. 13.9.2013. A copy of the aforesaid order of the learned In-charge Sessions Judge, Azamgarh dated 12.9.2013 is being annexed herewith as Annexure No. 10.

31.That, even on 13.9.2013 deliberately and maliciously, only in order to some how get the period of detention of the applicant extended, a resolution was passed by the Bar Association, Civil Court, Azamgarh for abstaining from work on 13.9.2013 on the ground that Virendra Singh, Advocate (complainant's son) has received some threat from somewhere. The malafide behind passing of the said resolution is apparent on the face of record inasmuch as Shri Virendra Singh, Advocate is a practicing Advocate and is registered with the Bar Association of Tehsil Phulpur, District Azamgarh and on account of the threat having been extended to Virendra Singh, Advocate the bar Association of Tehsil Phulpur, District Azamgarh did not go on strike and, instead, the Bar Association of Civil Court, District Azamgarh called for strike. A copy of the aforesaid resolution dated 13.9.2013 is being annexed herewith as Annexure no.11.

32.That, on account of the said fact the bail application of the applicant could not be considered on 13.9.2013 also and thereafter 14.9.2013 being Second Saturday and 15.9.2013 being Sunday, the applicant continued to languish in jail."

4. It is also contended that whenever resolution of general strike is passed by Court, the case is fixed on the next date. It is not in dispute that such resolution was passed by Bar Association. This Court of late has found that on one or the other reason and even without any valid reason, advocates in district Courts are abstaining from attending Court and thereby paralysing the Court proceeding but that by itself is not a ground of transfer of a case. Similarly the fact that the counsel of complainant is President of Bar Association of Civil Court, District Azamgarh is wholly irrelevant to justify a transfer of a case to another judgship unless something more is shown.

5. 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.

6. 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.

7. 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.

8. 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.

9. The mere observations of Presiding Officer of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. A Judge is not expected to remain silent during course of hearing and not to express any opinion. A sphinx like attitude is not expected from a Presiding Officer. There has to be an effective discussion and effective attempt to conciliate or to clarify the misunderstanding or to get the issues clear, so that the issues can be settled or a just and proper decision can be arrived at. If in that process the Presiding Officer would make a statement it should not be misunderstood as an expression of decision. (Smt. Sangeetha S. Chugh vs. Ram Narayan V. and others, AIR 1995 Karnataka 112 and Official Assignee, Madras vs. Inspector-General of Registration, Bangalore and Anr., AIR 1981 Madras 54 or 24)

10. In one matter certain observations were made by a Judge in an earlier case. When a subsequent matter came up before him this was sought to be a ground for transfer but declined by the Court in G. Lakshmi Ammal vs. Elumalai Chettiar and Ors, AIR 1981 Madras 24.

11. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved proved/ substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said:

"9. ......a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.

10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."

12. 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)

13. 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.

14. 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.

15. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.

16. The hierarchy gives appellate and supervisory powers in various ways. The administrative control of subordinate judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution. No such similar power like Article 235, in respect to High Court is exercisable by Apex Court, though it is the highest Court of land. Its judgments are binding on all. Every order and judgment of any Court or Tribunal etc., in the Country, is subject to judicial review by Apex Court. This is the power on judicial side.

17. In Ajay Kumar Pandey, Advocate, In Re:, (1998) 7 SCC 248, the Court said that superior Courts, i.e. High Court as also the Apex Court is bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.

18. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.

19. I cannot ignore the fact that much cherished judicial independence needs protection not only from over zealous executive or power hungry legislature but also from those who constitute, and, are integral part of the system. Here is a case where an Advocate has drafted a petition since the litigants, namely petitioners, hereat does not appear to understand the legal complexity much. The Advocate forgetting the higher status conferred upon him, making him an Officer of the Court, has chosen to malign Judicial Officer of the Subordinate Court, based on caste consideration as also the nature of his appointment over which he himself has no control. In any case, that, by itself, has no connection with his performance and function as Presiding Officer of the Court.

20. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He is expected to act with utmost sincerity and respect. In all professional functions, an Advocate should be diligent and his conduct should also be diligent. He should conform to the requirements of law. He plays a vital role in preservation of society and justice system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as moral agent. This character, he cannot shake off, by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession.

21. I do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly I have no hesitation in observing that no Advocate has nay business to condemn a Judge merely on the basis of his caste, creed or religion or for any other similar trait or attribute. If there is something lacking on the part of a Judicial Officer touching his integrity, Advocates, being Officers of the Court, may not remain a silent spectator, but should come forward, raising their voice in appropriate manner before the proper authority, but there cannot be a licence to any member of Bar to raise his finger over the competency and integrity etc. of a Judicial Officer casually or negligently or on other irrelevant grounds. Here the competence and capacity of the concerned Judicial Officer has been attempted to be maligned commenting upon his integrity and honesty. It deserves to be condemned in the strongest words. No one can justify it in any manner. Thinking of intrusion of such thought itself sounds alert. It is a siren of something which is not only very serious, but imminent. A concept or an idea which should not have cropped up in anybody's mind, connected with the system of justice, if has cropped up, deserves to be nipped at earliest, else, it may spreads its tentacles to cover others and that would be a dooms day for the very institution.

22. This Court also made similar observations in Smt. Munni Devi and others Vs. State of U.P. and others, 2013(2) AWC 1546 and in para 10, said:

"10. Be that as it may, so far as the present case is concerned, suffice is to mention that the Constitution makers have imposed constitutional obligation upon the High Court to exercise control over subordinate judiciary. This control is both ways. No aberration shall be allowed to enter the Subordinate Judiciary so that its purity is maintained. Simultaneously Subordinate Judiciary can not be allowed to be attacked or threatened to work under outside pressure of anyone, whether individual or a group, so as to form a threat to objective and independent functioning of Subordinate Judiciary."

23. In the light of the above exposition of law, the pleadings in the case in hand have been examined. The ground taken by applicant is vague and wholly unsubstantiated. The mere allegation is not sufficient to justify transfer unless it is also substantiated by relevant material, which is not the case in hand. No ground, therefore, justifying transfer is made out under Section 407 Cr.P.C.

24. The transfer application, therefore, fails and is dismissed with cost, which I quantify to Rs.25,000/- (Rupees Twenty five thousand only).

Order Date :- 14.10.2014

KA