Allahabad High Court
Rohit Yadav And Another vs State Of U.P. And Another on 4 March, 2016
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 585 of 2015
Applicant :- Rohit Yadav and another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Gaurav Kakkar
Counsel for Opposite Party :- G.A.,Ashwini Kumar Ojha
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Gaurav Kakkar, learned counsel for the applicants, Sri A.K. Ojha, learned counsel for opposite party no.2, learned AGA for the State and perused record.
The instant transfer application has been moved by the applicants Rohit Yadav and Randheer Yadav, under Section 407 Cr.P.C., for transferring of the entire proceedings of Sessions Trial No.159 of 2015, under Sections 147, 148, 149, 307, 302, 34 IPC, Police Station Navabad, District Jhansi from Sessions Court Jhansi to any other neighbouring district.
The facts germane to the present transfer application as reflected from the record appears to be that one first information report was lodged on 11.12.2014 by the first informant/opposite party no.2 Bijrendra Yadav son of Prem Vijay Yadav, at Case Crime No.873 of 2014 under Sections 147, 148, 149, 302, 34 IPC, Police Station Navabad, District Jhansi wherein the present applicants have been named. Thereafter the matter was investigated into by the police and charge sheet against the applicants and other accused persons was submitted and the case was committed to the Court of Sessions and has been numbered as Sessions Trial No.60 of 2015 pending in the court of the Additional Sessions Judge, Court No.5, Jhansi.
It is gathered that an application for transfer under Section 408 Cr.P.C. being numbered as 27 of 2015 was moved before the Sessions Judge, Jhansi, on 24.07.2015 which transfer application as per supplementary affidavit filed on behalf of the applicants has been rejected by the Sessions Judge, Jhansi vide order dated 20.11.2015. A certified copy whereof has been placed on record as annexure SA-II to the supplementary affidavit.
Pertinent to mention that the order dated 20.11.2015 was passed by the Sessions Judge, Jhansi during pendency of the instant transfer application which has been taken up by a coordinate Bench of this Court on 06.11.2015. It is reflected from record that against two applicants, two Sessions Trials have been numbered as Sessions Trial No.60 of 2015 and Sessions Trial No.159 of 2015 and both have been consolidated for the purpose of trial.
The grounds of transfer have been made to the extend that the trial court is acting in absolutely arbitrary manner as charge had been framed against the applicants in absence of his lawyer and the accused was asked to cross examine PW-1 when the trial court was informed that the defence counsel was not available. The father of the first informant is a member of the district court Bar Association Jhansi as such he is exercising great pressure on the members of the Bar Association Jhansi as well as Presiding Officer of Sessions Court, Jhansi.
Certain averments have also been made in the accompanying affidavit to the transfer application regarding the aforesaid transfer application (27 of 2015) moved before the Sessions Judge, Jhansi, for transfer of the aforesaid sessions trials but this matter has ended because the transfer application has already been disposed of by the Sessions Judge, as observed above, on 20.11.2015 during pendency of instant transfer application before this Court. It has also been averred that the applicant no.1, Rohit Yadav is in jail and his father, Randheer Yadav is aged person who does not keep good health and is under regular medical treatment. Since family members of the applicants do not consist of any other male member, deponent who is real sister of the applicants is looking after and doing Parvi of the said case and is running from pillar to post and she is facing great hardships on account of pendency of the aforesaid sessions trial. The first informant and his father are exercising extraordinary influence in district Jhansi due to political connection. Though the applicants also happen to be permanent resident of district Jhansi, but they are praying for transfer of the proceedings from district court Jhansi to any other neighbouring district only because they are sure that they are not going to get free and fair trial in district court Jhansi.
The first informant Bijendra Yadav son of Prem Vijay Yadav is a political leader as well as student leader of Bundelkhand Degree College and at present he is President of the students union. Three sisters of the applicants namely Ruchi, Milan and Hema Yadav (deponent) are married and are living at different places. It is clear that there is an imminent hardship being faced by family members of the applicants in doing Parvi of the said case at Jhansi as family members of the first informant have links with local Mafia and they are continuously threatening family members of the applicants. The applicants Rohit Yadav and Randheer Yadav are having criminal antecedents and several cases have also been registered against them. In the aforesaid circumstances, it is incumbent upon the court (trial court) concerned to ensure free and fair justice. Jurisprudential tenets stipulate that justice should not only be done but it should seem to have been done.
Counter affidavit has been filed on behalf of opposite party no.2, Bijendra Yadav, who is deponent. He has denied the averments raised in the accompanying affidavit to the transfer application and has brought to the notice of the Court that in fact the applicant no.2 had earlier moved a transfer application before the Sessions Judge, Jhansi and the same has been rejected as withdrawn on 22.07.2015. Copy whereof has been placed on record as annexure CA-I to the counter affidavit.
An application was filed by co-accused Chahat Yadav through Sri Shanker Lal Agarwal on 11.08.2015, for obtaining bail and release in custody of his mother.
The opposite party no.2 filed an Appeal No.88 of 2015 against the order dated 15.09.2015 passed by the Juvenile Justice Board, the same has been set aside in appeal and the matter has been remanded by the Juvenile Justice Board for determination of juvenility afresh. Copy of the order dated 16.12.2015 passed in Appeal No.88 of 2015 has been placed on record as Annexure CA-III to the counter affidavit.
It is reflected from counter affidavit that the applicant no.2 Randheer Yadav has been enlarged on bail after imposing certain conditions by a coordinate Bench of this Court vide order dated 27.04.2015 in Criminal Misc. Bail Application No.12697 of 2015, but the present applicants are trying to delay the proceedings of the trial by filing false and frivolous application to get the trial transferred to some other court but the same has been withdrawn. Consequently, it was dismissed as withdrawan. Thereafter, applicant no.1, Rohit Yadav filed yet another transfer application before the Sessions Judge, and the same has also been dismissed on 20.11.2015. Several counsels have been engaged by the applicants namely Sri Arun Kumar Dixit, Sri Shanker Lal Agarwal, Shailendra Singh of district (judgeship) Orai and Sri Arun Kumar Dixit, Sri Mayank Bajpayee, Sri Ashirwad Dwivedi, Sri Sayeed Naqvi and Sri Ramendra Awasthi, Advocates have been engaged to argue the case of accused Chahat Yadav. Their Vakalatnamas have been placed on record as annexure CA-5 to the counter affidavit.
PW-2 Ravindra Yadav has also moved an application before Senior Superintendent of Police, Jhansi on 03.01.2016 regarding threats extended by Hema Yadav daughter of Randheer Yadav. Copy whereof has been placed on record as annexure CA-6 to the counter affidavit.
While replying to the various contents of the accompanying affidavit to the transfer application, it has been claimed that the applicants filed transfer application and engaged several counsel and tried to prolong the matter on one pretext or other. No doubt, the father of the complainant is a member of the Bar Association district court Jhansi but he is not a practising advocate and at present, he is engaged in doing business and has no concern with advocacy and allegations made by the applicants that they are not getting justice from the trial court stand belied by the aforesaid facts.
The medical prescription relates to the year 2007, 2011 and 2014 and it has been stated by the deponent that he is under regular treatment. This shows concealment of real facts. Only frivolous grounds for transfer have been tried to be invented which invention is futile exercise in view of the existing facts and circumstances of the case made by the applicants themselves.
No doubt, the deponent is a students' union leader and is President of the students' union but he has no concern with the district court Jhansi. The father of the applicant no.1 Rohit Yadav is on bail and he can do Parvi of the case very well. Milan Yadav as well as Hema Yadav are married ladies but in the present transfer application moved under Section 407 Cr.P.C. address of both the ladies given by the deponent relates to that of district Jhansi. The applicants have filed an application under Section 156 (3) Cr.P.C. in order to create pressure in the murder case. The claim of the applicants for transferring the proceedings of Sessions Trial to another district appears to be mischievous one and based on extraneous causes.
Rejoinder affidavit has been filed on behalf of the applicants denying the claim raised on behalf of the opposite party no.2 in the counter affidavit. However, specific contention raised in paragraph no.20 of the counter affidavit regarding fact that father of the first informant is a practising lawyer has not been specifically denied, whereas, as per claim of opposite party no.2 this fact was specifically brought to the fore in paragraph no.6 of the transfer application moved before the Sessions Judge, Jhansi, wherein an affidavit was filed stating therein that father of the first informant is a member of the Bar Association Jhansi and is a practising lawyer but the fact has not been specifically denied as such, and it appears that the averment qua father of the first informant that he is a practising lawyer at district court Jhansi is not borne out.
The contentions raised, inter-alia, are based on fact that free and fair justice will not flow if the concerned sessions trials are allowed to proceed further as the first informant and his father exercise great deal of influence over the district court and Bar Association Jhansi and they may adversely influence and affect the proceedings of the aforesaid sessions trial as such and they have intimate connections with local Mafia as well.
The moot point arises whether the sessions trials deserve to be transferred to some another district on the basis of above contention?
Perusal of the record profusely reflects that the applicant no.2 Randheer Yadav, father of the applicant no.1 Rohit Yadav has been admitted to conditional bail by this Court vide order dated 27.04.2015 in criminal misc. bail application no.12697 of 2015, copy whereof has been annexed as annexure CA-4 to the counter affidavit, wherein as many as three conditions have been imposed and condition no.1 is that the applicant will cooperate with the trial and remain present on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. Obviously, this bail order was obtained on 27.04.2015 and thereafter transfer application was also filed by the applicant no.2 Randheer before the Sessions Judge, Jhansi for transfer of the Sessions Trial No.60 of 2015 which transfer application was not pressed and has been dismissed as withdrawn. Besides, perusal of the record also establishes that service of advocate was available to the applicants, particularly the applicant no.1 Rohit Yadav. On several occasions when the prosecution witnesses were present, learned counsel for the applicants was absent and he was lastly given a choice to engage service of amicus curiae at the government expenses which he flatly refused. Even at this stage, the applicant no.1 has not come out with any explanation about such refusal. But this particular act reflects on the bonafides of the applicant no.1.
Perusal of the first information report brings out fact that both the parties are affluent and belong to families having sufficient means at their command as the first informant at the alleged time of the incident (in the first information report) was driving his Scorpio jeep, whereas, the accused side was driving a Fortuner car/jeep which collided with Scorpios jeep of the first informant and thereafter offence of murder was committed.
I have also scanned the entire order sheet annexed with the affidavit to the transfer application as annexure no.2 which also reveals that the applicants are somehow trying to delay conclusion of the trial. Contention regarding the fact that applicant no.1 Rohit Yadav was not given an opportunity of hearing at the time of framing of charge and the charge was framed in absence of his counsel then he had ample opportunity to challenge that order by way of appropriate legal remedy. Instead of doing the needful he is woeful complaining against the Presiding Judge of the concerned sessions trial. This act itself casts doubt about the bona-fides of the applicants.
Learned counsel for the applicants has vehemently pleaded that the first informant is the sitting President of students' union of degree college Jhansi, therefore, he is having great influence in the area and fair trial is not expected in such a situation. Apt reply has been given with equal force by learned counsel for opposite party no.2 by submitting that specific denial has been made on behalf of the opposite party no.2 and it is true that he is the sitting President of the students' union, but it is equally true that he does not have any influence over district court Jhansi or the Presiding Officer of the trial court. Nothing substantial or circumstantial has been brought to the notice of this Court as to how the aforesaid reply of the learned counsel for opposite party no.2 should not be taken to be true and correct. More so, the applicants have not given particular or instance regarding exercise of such influence over the court at Jhansi or the Presiding Officer concerned by the opposite party no.2. Thus it cannot be said that a person being the sitting President of a college or degree college will invariably exercise pressure and influence over judicial institution. In this regard, the contention so raised by the applicants falls flat.
Vague and vexatious accusation without an element of truth on the working of trial court not supported either by fact or circumstances will not ipso facto be sufficient ground for transfer of a case. Transfer of a case can be made only when the same is reasonably required under facts and circumstances of a case. If allegations made for transfer are straightway discovered or found to be affecting adversely interest of justice instead of supporting it then the same will tantamount to erosion of judicial process itself and any claim so made for transfer can be, in that eventuality, termed unreasonable and uncalled for. Transfer of a case can not be asked by making ostentatious, baseless and whimsical personal apprehensions. Normally such attempts should be strongly deprecated and discouraged.
While considering the entirety of the matter in hand, it is obvious that this transfer application has not been moved with any fair motive but appears to be well thought attempt to somehow occasion delay in conclusion of the trial. If the applicants are apprehensive of their personal security then they may bring relevant facts to the notice of the trial court itself. More so the record reflects that the wife of applicant no.1 Rohit Yadav has moved bail application on behalf of minor son Chahat Yadav and has sought release of her (minor) son in her custody. This particular fact reveals that wife of applicant no.1 is able to do Parvi of a case in the court. More so applicant no.2 is already on bail and it cannot be said that he is absolutely unable to do Parvi of the cases (two sessions trials) pending before the sessions court Jhansi. Personal inconvenience and personal apprehension of applicants as claimed by them are found to be not based on reasonable and substantive grounds as such would not justify transfer of the sessions trials. Further if the transfer application is moved with an ulterior motive to occasion or cause delay in disposal of the trial itself then that application is highly misconceived and cannot be allowed as that would adversely affect interest of justice. In catena of decisions, this tendency to seek transfer on frivolous and vague grounds has been deprecated repeatedly. Consequently, the grounds urged in support of the transfer application for transferring the aforesaid sessions trial are without any force and are liable to be turned down.
Accordingly, the instant transfer application is rejected.
Order Date :- 4 March, 2016 rkg