Allahabad High Court
Shiv Gopal vs State Of U.P. on 25 June, 2019
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 10
Case :- U/S 407 CR.P.C. No. - 62 of 2019
Applicant :- Shiv Gopal
Opposite Party :- State Of U.P.
Counsel for Applicant :- Kailash Nath Tewari
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Anil Kumar,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for opposite party.
By means of present writ petition petitioner has prayed that this Court may very kindly be pleased to allow the instant transfer application and applicant's trial S.T. No. 10 of 1998 (State Vs. Shiv Gopal), crime no.397 of 1997, under sections 7/13(1) (d)/13(2) Prevention of Corruption Act, Police Station Hammeerpur, District Jhansi is pending in the Court of Special Judge P.C. Act IXth, Lucknow and the case is fixed for: 28.06.2019 may be transferred to any other court of equal jurisdiction and the order impugned dated 14.6.2019 (Annexure no.1) passed by learned Sessions Judge, Lucknow may be set aside.
Learned counsel for the applicant while pressing the relief as claimed in the instant writ petition submits that Session Trial No. 10 of 1998 ( State Vs. Shiv Gopal) in case crime no.397 of 1997, under sections 7/13(1) (d) /13(2) Prevention of Corruption Act, Police Station Hammeerpur, District Jhansi is pending before Special Judge P.C. Act IXth, Lucknow and the matter was finally heard on 11.10.2018.However no order has been passed by the court concerned on the one hand and on the other hand several dates were fixed in the matter.
Learned counsel for the applicant submits that thereafter applicant moved an application before Sessions Judge, Lucknow for transferring the Session Trial No. 10 of 1998 ( State Vs. Shiv Gopal) in case crime no.397 of 1997, under sections 7/13(1) (d) /13(2) Prevention of Corruption Act, Police Station Hammeerpur, District Jhansi from the court of Special Judge P.C. Act IXth, Lucknow to any other court, the same was rejected by order dated 14.6.2019, a copy of which has been annexed as annexure no.1 to the writ petition.
In view of the said factual background present petition under Section 407 Cr.P.C. has been filed before this Court.
Learned counsel for the applicant has pressed and argued the petition solely on the ground that no fair and impartial enquiry has been done during trial by the court concerned. So the matter may be done from the said court.
I have heard learned counsel for the parties and gone through the record.
In order to decide the controversy which involved in the writ petition, it will be appropriate to go through the relevant provisions of Section 407 Cr.P.C. which reads as under:-
"407. Power of High Court to transfer cases and appeals:- (1) whenever it is made to appear to the High Court-
(a) that a fair and impartial enquiry 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,"
The relevant point which is to be considered in the present case on the basis of arguments raised by learned counsel for the applicant that what is the meaning of fair and impartial inquiry or trial cannot be had.
The principle underlying section 401 clause (a) is well known principle of public policy that 'justice should not merely be done but should manifestly be seen to be done.
The object is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security. The trial of a case should be in an atmosphere which does not create even a suspicion that there has been or is likely to be an improper interference with the course of justice.
What is required is not whether in fact a fair and impartial trial cannot be had but whether there is a 'reasonable apprehension' in the mind of party about it.
The law has regard not so much to the motives which might be supposed to bias the judge as to the susceptibilities of the litigating parties. Where transfer is sought on this ground, the Court has to put itself to the position of the applicant seeking transfer and to look at the matter as it would appear to him.
Hence even apart from the susceptibilities of the accused, if there are circumstances or event which were calculated to create in the mind of the accused a reasonable apprehension that he would not be fairly treated, that would be a god ground for transfer. Even though the Magistrate may have no real bias in the matter.( See Mansoor Vs. State, AIR 1963 All 477)
In the present case, applicant in the pleadings has nowhere stated that what in justice has been caused to him or there is failure of justice if the trial is not transferred from the court where it is pending and also that what apprehension he has that there is no fair and impartial enquiry be done by the trial court while adjudicating the Sessions Trial No.10 of 1998 ( State Vs. Shiv Gopal) rather on the point in issue there is not pleading.
It is settled proposition of law that if there is no pleading on the point in issue in the petition then on the said point argument cannot be raised.
In view of the above said I do not find any good ground or reason to interfere in the matter in question.
For the foregoing reasons, the petition under section 407 Cr.P.C. lacks merit and is dismissed.
Order Date :- 25.6.2019
dk/
