Karam Veer Singh vs State Of U.P. Thru. Secy. Home ...
2022 Latest Caselaw 20941 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 15
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 122 of 2022
 

 
Applicant :- Karam Veer Singh
 
Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Lko. And Another
 
Counsel for Applicant :- Paritosh Shukla,Anamika Singh,Sukh Deo Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

Heard Shri Paritosh Shukla learned counsel for the applicant, Shri Rejesh Kumar Singh, learned Additional Government Advocate-1st assisted by Shri Himanshu Suryavanshi, learned counsel for the state of U.P./opposite party no.1 and perused the record.

In view of the order proposed to be passed, notice to opposite party no.2 is dispensed with.

This transfer application u/s 407 Cr.P.C. has been moved by applicant with the prayer to transfer the Sessions Trial No.121/2016, arising out of Case Crime No.0321/2015, State vs. Anurag Singh & Ors., under Sections 147, 148, 149, 302 I.P.C., Police Station Dhammour, District Sultanpur from the court of District Judge, Sultanpur to any other competent court or any other nearby District Court.

The brief facts giving rise to the present transfer application are that the Sessions Trial No.121/2016, State vs. Anurag Singh & Ors., is pending in the Court of District Judge, Sultanpur. The present applicant is one of the accused, who is facing the aforesaid trial. On 05.12.2022, arguments were heard by the Court below and 15.12.2022 was fixed for delivery of judgment. In the evening of 10.12.2022, the applicant, while he was going for some personal work, saw the vehicle of informant of the aforesaid criminal case/opposite party no.2, herein, parked outside the bungalow of learned District Judge, Sultanpur, in which the informant/opposite party no.2 was sitting. The applicant stopped there and waited for a while. He noticed that one Tarkeshwar Singh, Advocate, Ex-DGC (Criminal) came out from the house of District Judge, Sultanpur and he then drove the vehicle away, in which the first informant/opposite party no.2 was sitting. According to the applicant, Tarekeshwar Singh, Advocate had worked as DGC (Criminal), who has conducted substantial part of trial of the aforesaid sessions trial on behalf of the prosecution until his retirement. Immediately after his retirement, he has filed vakalatnama on behalf of the first informant/opposite party no.2, herein. The applicant alleges that Tarekeshwar Singh is personally interested in the outcome of present trial as he is the distant relative/well wisher of the first informant/opposite party no.2. On 12.12.2022, the applicant also came to know in his village that the first informant/opposite party no.2 has managed to have a favourable judgment in his favour. Therefore, the applicant immediately approached the Administrative Judge, Sultanpur and Hon'ble The Chief Justice through e-mail. It is also stated that the co-accused has also filed an application under Section 482 Cr.P.C. bearing No.2278 of 2022 before this Court, which is still pending and this fact was also brought to the notice of learned District Judge, Sultanpur.

In view of the aforesaid overall facts and circumstances of this case, the applicant has apprehension that learned District Judge, Sultanpur is personally biased and adamant to convict the applicant in the aforesaid session trial. There is every possibility that in the aforesaid situation, the trial of Session Trial No.121/2016, State vs. Anurag Singh & Ors., would not be conducted impartially and fairly, particularly keeping in view the adverse and biased remarks made by the learned District Judge, Sultanpur in the open Court.

In the aforesaid background, the present transfer application has been filed by the present applicant.

Learned counsel for the applicant reiterated the aforesaid allegations and apprehensions and submitted that in the peculiar facts of this Case, the applicant apprehends that he would not get justice from the Court where Sessions Trial No.121/2016, arising out of Case Crime No.0321/2015, State vs. Anurag Singh & Ors. is pending. His further submission is that the right of fair trial implies trial, which is conducted impartially. Therefore, he submits that the instant transfer application deserves to be allowed.

Per contra, learned A.G.A. has opposed the aforesaid submission and prayer made by learned counsel for the applicant by submitting that except oral allegation levelled by the applicant against the learned District Judge, Sultanpur and one Tarekeshwar Singh, who has not been made a party in this application, there is no material on record to support such allegations levelled by him. It is also submitted that no details have been given by the applicant to demonstrate as to how and in what manner the District Judge, Sultanpur made biased and adverse remarks against the applicant. He, thus, submits that the present application has been moved by the applicant for ulterior motive and on flimsy grounds just to cause delay and to exert undue pressure upon the concerned Presiding Officer. Therefore, the same is liable to be dismissed.

It is trite that in view of sub-section (1) of Section 407 Cr.P.C. a case can be transferred, whenever it is made to appear to High Court-

(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 the code of criminal procedure,or will tend to the general convenience of the parties or witness,or is expedient for the ends of justice.

The Hon'ble Supreme Court on several occasions has considered the issue of transfer of cases in different circumstances.

The Hon'ble Supreme Court in Gurcharan Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418, in para no.13 has held as under:-

"13. .....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 office. The Court has further to see whether the apprehension is reasonable or not. To judge 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."

(emphasis supplied)

In K.P. Tiwari Vs. State of M.P. 1994 SCC (Cri) 712 the Hon'ble Supreme Court in para no.4 has held as under:-

"4....It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks - more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive."

The Hon'ble Supreme Court in the case of Captain Amarinder Singh Vs. Parkash Singh Badal and others (2009) 6 SCC 260, has held in para nos.18, 19 and 20 as under:-

"18. For a 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 is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether apprehension alleged is a reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.

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 underSection 407and anywhere in the country underSection 406Cr.P.C.

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 21of 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."

(emphasis supplied)

The Apex Court in case of Usmangani Adambhai Vahora Vs. State of Gujarat and another (2016) 3 SCC 370 considering the previous judgments of the Supreme Court has held:-

"Seeking transfer at the drop of a hat is inconceivable. 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 proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice."

This Court in case of Amit Agarwal Vs. Atul Gupta 2014 (11) ADJ 414 (All.) considering the scope of transfer in such a matter has held that:-

"24. 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)

25. 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.

26. 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."

(emphasis supplied)

Thus, after having carefully examined entire material available before this Court on the touch stone of law as laid down by Hon'ble Supreme Court in Gurcharan Dass Chadha (supra), K.P. Tiwari (supra), Captain Amarinder Singh (supra), Amit Agarwal (supra) and Usmangani Adambhai Vahora (supra), this Court is of the view that that the power of transfer of a case must be exercised meticulously and with precision under compelling circumstances, where on the basis of material on record it appears to the court that there is strong reason for doing so and by not transferring the case there would be miscarriage of justice. No universal or hard and fast rules can be applied for deciding a transfer application which has always to be decided on the basis of facts of each case. It is also well settled that the alleged apprehension has to be well founded. The apprehension of not getting a fair and impartial justice is required to be reasonable based on strong material and not hypothetical. Merely making vague allegation that there is an apprehension in the mind of applicant that justice will not be done in a given case alone would not suffice.

Adverting to the facts of the case in hand, this Court finds that the allegations levelled by the applicant as mentioned above are wholly vague and general in nature, which are not supported by any reliable material on record. The applicant's apprehension that he would not get justice is quite imaginary. The grounds set out by the applicant do not justify the transfer of case as prayed by the applicant. Therefore, this Court does not find any good ground to interfere in this matter.

Accordingly, the instant transfer application lacks merit, which deserves to be dismissed and the same is hereby dismissed.

Office is directed to send a copy of this order to the Court concerned, forthwith, through email/fax for necessary information and compliance.

Order Date :- 14.12.2022

A.Dewal