Allahabad High Court
Rukhsana Bano And Another vs State Of U.P. And Another on 19 December, 2018
Equivalent citations: AIRONLINE 2019 ALL 1905
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 492 of 2018 Applicant :- Rukhsana Bano And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- A.K. Mishra,Sati Shanker Tripathi Counsel for Opposite Party :- G.A.,Gaurav Singh Chauhan Hon'ble Rahul Chaturvedi,J.
[1] Heard Sri A.K. Mishra, Sri S.S. Tripathi, learned counsel for the applicants, Sri Gaurav Singh Chauhan, learned counsel for opposite party no. 2 who has filed counter affidavit as well as learned A.G.A. and keenly perused the record.
[2] The jurisdiction of Section 407 Cr.P.C is being invoked to transfer the Sessions Trial No.715 of 2017 under Sections 498A, 323, 504, 506, 307 IPC and Section 3/4 D.P. Act arising out of Case Crime No.161 of 2011 Police Station-Kotwali, District-Aligarh pending in the Court of Additional Sessions Judge-I, Aligarh to some other court of competent jurisdiction in the neighbouring district of Aligarh with the allegation that keeping in view the conduct of the Presiding Judge, Aligarh, the applicant has lost faith in him and apprehends that they would get justice from the concerned court.
[3] Learned counsel for the applicants has submitted that in the year 2011, the FIR came into existence by one Mohd. Aneesh s/o Abdul Majeed roping the entire family of Amjad Ahmad and Asraf Ahmad, two real brothers marrying two real sisters of the informant namely Mehnaaz and Naazma attributing a general role to all the accused persons. But during investigation, the police has gropped the name of seven accused persons and has submitted the report under Section 173(2) Cr.P.C. only against five accused persons including the applicants who are 'Nanad' and 'Nandoi' and resides at Agra. After being charge-sheeted, the applicants were bailed out and have moved an application under Section 227 Cr.P.C. seeking discharge from the allegation of attempt of murder and dowry harassment. This application for seeking discharge was filed wayback on 25/26.01.2017 and even after lapse of considerable period when the same was not decided by the learned trial Judge for one reason or the another. Left with no option, the applicant approached this Court by invoking the inherent power of Section 482 Cr.P.C. bearing Application U/S 482 No. 37866 of 2018 raising their reasonable apprehensions that the learned trial Judge is more interested in framing charges against the applicant instead of deciding the discharge application which is pending since January, 2017. It is further alleged by the applicant that it is really cumbersome to appear before the court at Aligarh from Agra on every date as per direction of the learned trial court to get their discharge application decided. Co-ordinate Bench of this Court vide order dated 24.10.2018 eventually disposed of the said application with the following directions :-
"The grievance of the applicants is that on each and every date the court is compelling them to appear, but their discharge application is not being decided.
This application is disposed of directing the court below to decide the discharge application of the applicants within a period of one month from today. During this period the applicants shall not be compelled to appear personally before the court."
[4] Thus from the above, it is clear that my esteemed Brother has categorically directed the learned trial Judge to decide the discharge application within a month from 24.10.2018 without compelling/insisting the personal presence of the applicant. It is further argued by learned counsel for the applicants that there is no provision in the scheme of Code of Criminal Procedure which anticipates that the discharge application should be decided in the presence of the applicant or making the presence of the applicant mandatory before the Court.
[5] It is submitted by learned counsel for the applicants that after taking the certified copy of this Court when the applicant approached the court concerned, but the staff of the court concerned has refused to take it on record as there is no endorsement in that regard in the order sheet. This indeed is an alarming situation where the orders of the Higher Court are not even acknowledged or recorded in the records of the lower court.
[6] As a last resort through a separate application on 05.11.2018, the order of this Court was furnished and the concerned Trial Judge was apprised with the aforesaid order of this Court.
[7] Vide order dated 07.12.2018, the Court has directed the learned Trial Judge to appear in person before this Court to explain his conduct. Today i.e. on 19.12.2018, learned Trial Judge appeared before this Court and this Court has got an opportunity to briefly interact with him. He has accepted that there are flaws on his part and the part of his subordinate staff and tendered un-conditional apology.
[8] This Court is extremely pained in calling a Senior trial Judge and to have his explanation at Bar in this regard as normally, this Court is not in practice to do so. After having his explanation and un-conditional apology on the matter, though, this Court is not inclined to proceed against him but the learned Sessions Judge must bear in mind one important aspect on the issue i.e. judicial discipline and propriety. There must be realization while passing any order/judgment by any judicial officer that the duty of a member of this legal fraternity is to ensure that the image and perception of the judiciary is not tarnished and its dignity is not eroded. The judicial officers are repository of public trust and confidence and they are bound by an imperceivable and intangible chain which binds this impeccable system in a particular fashion and design else, the entire system would be hellish and go to dogs and would prove to be anarchial and chaotic for the entire society. Besides this, it would bound to create unwarranted and uncalled for situation casting suspicion in the minds of litigants about the integrity and transparency about the judicial system in general, particularly Judicial Officers, who in fact, are the foundation-stones of our system. A litigant deposes certain amount of faith, trust and confidence in the judicial system and any loose or unwanted liberal act on this account would caste serious dent in the image and perception of the entire judiciary. Therefore, this Court is of the considered opinion that the instant transfer application moved by a set of accused persons is the outcome of their raised eye brows casting transparency and impartiality against the Presiding Officer. Though, the conduct of learned Trial Judge might be unintentional or he may not have any interest in calling all the accused persons while adjudicating the discharge application but certainly, it was an indiscrete action on his part, leading to this embarrassing and uncalled for situation.
[9] Under such circumstances, this Court is left with no option but to live up with the expectations of a litigant, his trust and confidence in the system and therefore, it is imperative to transfer the Sessions Trial No.715 of 2017 to corresponding court at Mathura.
[10] With the aforesaid observations, the present transfer application is allowed. It is directed that the records of the aforesaid case must be transmitted to the corresponding court at Mathura within a period of one month from today.
[11] It is expected from the Presiding judge of the concerned court at Mathura that he would gear up the trial and would make all necessary endeavor to conclude the same as expeditiously as possible, preferably within a period of eight months after receipt of records of Sessions Trial No.715 of 2017 without granting unwarranted and unnecessary adjournments to either of the parties. The parties and the State machinery is expected to tender all possible assistance in early conclusion of trial.
Order Date :- 19.12.2018 Sumit S