Allahabad High Court
Mohd. Asif And Another vs State Of U.P. And Another on 9 January, 2020
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 311 of 2019 Applicant :- Mohd. Asif And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dhirendra Kumar Srivastava,Rajiv Sisodia Counsel for Opposite Party :- G.A.,Madan Singh AND Case :- TRANSFER APPLICATION (CRIMINAL) No. - 343 of 2019 Applicant :- Mohd. Asif And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dhirendra Kumar Srivastava,Rajiv Sisodia Counsel for Opposite Party :- G.A.,Madan Singh Hon'ble Harsh Kumar,J.
Heard Sri Rajiv Sisodia, learned counsel for applicants, Sri Madan Singh, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.
These two transfer applications are between the same parties and are being decided by a common order.
The Transfer Application No.311 of 2019 has been moved for transferring the proceedings of Case No.8686 of 2018 (State Vs. Mohd. Asif and others), arising out of Case Crime No.635 of 2017, under Section 498-A, 323, 506 I.P.C. and Section 3/4 of D.P. Act pending in the court of A.C.J.M.-IV, Moradabad to any other court of adjoining district having appropriate jurisdiction and the Transfer Application No.343 of 2019 has been moved for transferring the proceedings of Case No.260 of 2019 (State Vs. Mohd. Asif and others), arising out of Case Crime No.68 of 2019, under Section 363, 511, 506 I.P.C. pending in the court of C.J.M., Moradabad to any other court of adjoining district having appropriate jurisdiction.
Learned counsel for applicant contended that opposite party no.2 is legally wedded wife of applicant no.1 Mohd. Asif and due to matrimonial dispute, has lodged a false F.I.R. against applicants under Section 498-A I.P.C. etc. in which charge-sheet was filed under Section 498-A, 323 & 506 I.P.C. and Section 3/4 D.P. Act; that opposite party no.2 filed another F.I.R. against applicant no.1 and his family members at Case Crime No.68 of 2019, under Sections 363, 511, 506 I.P.C. regarding alleged attempt to kidnap her son; that opposite party no.2 is residing and working as Dai (Nurse) in a village of District Amroha and has stated in F.I.R. itself that she is residing with her widowed mother but since her brother Jarif is a practicing advocate at Moradabad so she has filed as many as four criminal cases against applicant no.1 and his family members at Moradabad; that apart from these two cases, two more cases under Domestic Violence Act and under Section 125 Cr.P.C. have been filed at Moradabad; that due to influence of Jarif Advocate, the brother of opposite party no.2, the applicant is not getting suitable advocate and legal aid and more over the opposite party no.2 is getting false witnesses at Moradabad due to influence of her brother; that applicants since unable to get due legal aid at Moradabad so have no hope of getting justice in the cases at Moradabad and the cases may kindly be transferred from Moradabad to any other adjoining district or may be at District Amroha which will also be convenient for opposite party no.2.
Per contra, learned A.G.A. and learned counsel for opposite party no.2 vehemently opposed the prayer for transferring the cases and contended that it is wrong to say that brother of opposite party no.2 has any influence over Bar of District Court Moradabad or due to his alleged influence the applicants are not getting proper legal aid at Moradabad; that advocates of Moradabad has secured bail of applicants in two cases and it is wrong to say that opposite party no.2 has filed cases at Moradabad for the reason of her brother being advocate there; that it is wrong to say that opposite party no.2 is residing at Amroha rather Chairperson, Nagar Panchayat, Pakbada, Moradabad has certified her residence in Pakbada, Moradabad vide Annexure-5 to counter affidavit; that if the cases are transferred to Amroha the opposite party no.2 shall feel much inconvenience because various relatives of applicants are residing at Amroha who will cause interference and inconvenience to opposite party no.2, in doing pairavi of the cases.
In reply, learned counsel for applicants submits that no relative of applicants is at Amroha and the Chairperson of Nagar Panchayat is not authorized to issue domicile certificate and A-5 to counter affidavit has been obtained by influence of brother of opposite party no.2.
Upon hearing parties' counsel and perusal of record, I find that in F.I.Rs. of two cases the opposite party no.2 has mentioned herself to be resident of Amroha with an addition that at present she is residing at Moradabad. It is not disputed that brother of opposite party no.2 is a practicing advocate at Moradabad and may be having some influence over local bar. In the interest of justice it appears necessary to transfer the cases from Moradabad to some other judgeship.
Upon being asked as if any common place may be agreed by them, parties counsel agreed that if the cases are transferred to District Sambhal at Chandausi, they shall have no objection and no much inconvenience.
In view of above, the transfer applications are allowed. The Criminal Case No.8686 of 2018 (State Vs. Mohd. Asif and others), arising out of Case Crime No.635 of 2017, under Sections 498-A, 323, 506 I.P.C. and Section 3/4 of D.P. Act pending in the court of A.C.J.M.-IV, Moradabad and Criminal Case No.260 of 2019 (State Vs. Mohd. Asif and others), arising out of Case Crime No.68 of 2019, under Sections 363, 511, 506 I.P.C. pending in the court of C.J.M., Moradabad are transferred from the court of A.C.J.M.-IV, Moradabad and C.J.M., Moradabad to the competent court of Magistrate in Sessions Division, Sambhal.
District Judge, Sambhal at Chandausi is requested that both the cases be transferred to one and same Magistrate court concerned is required to fix one and same date in both the cases so as to avoid unnecessary inconvenience to either party, who will be coming from other districts.
Office is directed to communicate this order to District & Sessions Judge, Moradabad and District & Sessions Judge, Sambhal at Chandausi for ascertaining necessary compliance.
Order Date :- 9.1.2020 Kpy