Mohammad Ayub Siddhiqui vs State Of U.P. & Others
2021 Latest Caselaw 10059 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- U/S 407 CR.P.C. No. - 32 of 2021
 

 
Applicant :- Mohammad Ayub Siddhiqui
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Dharmendra Kumar Tiwari,Ravindra Kumar Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Supplementary filed by learned counsel for the applicant is taken on record.

Heard Shri Ravindra Kumar Dwivedi, learned counsel for the applicant and Shri Rajeev Kumar Verma, learned AGA for the State as well as perused the record.

This application under Section 407 Cr.P.C. has been moved on behalf of applicant/informant - Mohd. Ayub Siddiqui with a prayer to transfer the Sessions Trial No. 1082 of 2014, arising out of Case Crime No. 689 of 2014, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, Police Station Ghazipur, District Lucknow from the court of 1st Additional District and Sessions Judge, Lucknow to any other court.

Learned counsel for the applicant submits that the applicant had lodged an FIR against the accused persons and after the commitment of the case to the court of session the charges were framed against the accused persons and trial started and now the case is fixed at the stage of arguments.

While referring to the supplementary affidavit filed today, it is vehemently submitted by learned counsel for the applicant that the learned trial judge on one occasion during the course of proceedings had orally remarked that since the prime accused, namely, husband of the deceased has already remained 7 years in jail, the matter could be decided by sentencing him for the period under gone in jail and therefore, the applicant who is informant of the case is not having any hope of justice from the said Presiding Officer and the case be transferred to any other Additional District & Sessions Judge of the Sessions Judgeship.

Learned AGA, on the other hand, submits that if the petition filed by the applicant and the supplementary affidavit filed today is read conjointly it will emerge that the applicant is having only an apprehension and the law with regard to the transfer of cases is well settled that only on the basis of any unsubstantiated apprehension the criminal case could not be transferred.

Having heard learned counsel for the parties and having perused the record, it is evident that the applicant has approached this Court directly without moving any application under Section 408 of the Cr.P.C. before District and Sessiosn Judge and no explanation of the same has been given either in the petition or in the supplementary affidavit filed today. Perusal of record would further reveal that in paragraph 9 of the petition it is mentioned that the applicant has learned from the reliable sources that the accused persons are trying to influence the proceedings and trying to get the judgment in their favour and therefore there is apprehension that the applicant will be deprived of fair and impartial justice on the last date when this case was listed a request was made to file supplementary affidavit and the same has been filed today. In paragraph 4 of the same it has been stated that the trial judge on one occasion, during the course of proceedings orally remarked that since the prime accused i.e. husband has already served 7 years in jail the matter can be decided by sentencing him for the period of imprisonment already under gone.

A plain reading of these averments would reveal that these grounds are self contradictory and in the petition it is stated that the accused persons are trying to influence the Presiding Officer and in supplementary affidavit filed today, it is stated that the trial judge on one occasion had remarked that by sentencing the husband for the period he has already undergone, would suffice. However, no date of this incident has been mentioned on which the alleged remarks was passed by the Presiding Officer.

Perusal of Section 407 of the Cr.P.C. would also reveal that power under this Section could only be exercised when it is made to appear that fair and impartial trial could not be had in any subordinate court or some question of law of unusual difficulty is likely to arise or any 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 the same is otherwise expedient for the ends of justice. In the instant case, grounds which have been taken by the applicant to transfer the case from the court wherein, it is pending now, are that the accused persons are trying to influence the Presiding Officer and the trial judge on one occasion during the course of proceedings orally remarked that since the prime accused i.,e. husband of the deceased has already served seven years imprisonment in jail, the matter can be decided by sentencing him for imprisonment for the period he had already under gone.

Coming to the grounds which has been made the basis of moving this transfer application, it appears that the applicant is having only an apprehension. Even any application for transfer of any case from one court to another is being moved on an apprehension the same is bound to be reasonable and it must reflect that having regard to the facts and circumstances of the case justice will not be done to the parties. In this regard it is worthwhile to refer a passage from three Judge Bench decision of the Hon'ble Supreme Court passed in Gurcharan Dass Chadha v. State of Rajasthan MANU/SC/0093/1966 : AIR 1966 SC 1418, wherein it has been held:

"...The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A Petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."

Hon'ble Supreme Court in Abdul Nazar Madani v. State of T.N. MANU/SC/0349/2000 : (2000) 6 SCC 204 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. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. 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."

In Captain Amarinder Singh v. Parkash Singh Badal and Ors. MANU/SC/0797/2009 : (2009) 6 SCC 260, while dealing with an application for transfer petition preferred Under Section 406 Code of Criminal Procedure, a three-Judge Bench of Hon'ble Supreme Court has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that mere an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be present but must appear to the Court to be a reasonable apprehension. In the said context, Hon'ble Supreme Court has held thus:

"19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State Under Section 407 and anywhere in the country Under Section 406 Code of Criminal Procedure.

20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one."

In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand MANU/SC/0796/2013 : (2013) 8 SCC 593, Hon'ble Supreme Court, repelling the submission that because some of the distantly related members of the trial Judge were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the Appellant. From the said decision, following passage is reproduced:

"Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent."

The aforesaid laws would clearly emphasize on sustenance of majesty of law by all concerned. Seeking of the transfer of criminal trial at the drop of a hat is not recognized by the courts or by any tenent of law. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. This power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial asheld in Nahar Singh Yadav and Anr. v. Union of India and Ors. MANU/SC/0964/2010 : (2011) 1 SCC 307], the apprehension with regard to the miscarriage of justice should be real and substantial.

It is also worthwhile to extract the view of the Hon'ble Supreme Court n Usmangani Adambhai Vahora Vs. State of Gujarat and Ors, Reported in MANU/SC/0014/2016 (AIR 2016 SC 336), wherein it is emphasized that simply because an accused or a party has filed an application for transfer, a Judge is not required to express his disinclination. He is required under law to do his duty and not to succumb to the pressure put by a party by making callous allegations and he is not expected to show unnecessary sensitivity to such allegations.

In the instant case, this Court is disposed to think that apprehension which has been made the basis to seek order for transfer of the case pending before the court below is absolutely weak and cannot be remotely said to be reasonable.

Keeping in view the above mentioned legal and factual matrix and considering all the facts and circumstances of the case, I do not find any cogent reason or ground to allow this transfer application, therefore application moved by applicant under Section 407 Cr.P.C. to transfer the above mentioned case pending in the court of 1st Additional District and Sessions Judge, Lucknow to any other court is hereby rejected.

A copy of the order be immediately sent to the subordinate court.

Order Date :- 11.8.2021

Muk