Allahabad High Court
Nitesh Kumar Singh vs State Of Up And 5 Others on 7 June, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:102749 Court No. - 80 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 369 of 2024 Applicant :- Nitesh Kumar Singh Opposite Party :- State Of Up And 5 Others Counsel for Applicant :- Surendra Kumar Chaubey Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.
1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.
2. The present transfer application has been moved under Section 407 Cr.P.C., by the applicant- Nitesh Kumar Singh, with a prayer to set-aside the impugned order dated 27.05.2024, passed by learned Sessions Judge, Ballia in Transfer Application No.144 of 2024 (Nitesh Kumar Singh Vs. State of U.P. and others) by transferring the trial of Session Trial No.123 of 2022 (State vs. Sabal Singh @ Amritesh Singh and others) arising out of Case Crime No.167 of 2021, under Sections 302 & 120B IPC Police Station- Bairiya, District Ballia from the Additional Sessions Judge, Court No.3, Ballia to Additional Sessions Judge, Court No.4, Ballia by allowing the transfer application.
3. Learned counsel for the applicant submitted that in the present matter applicant- Nitesh Kumar Singh, is the informant of the case. The Session Trial No.123 of 2022, which is under reference was transferred by the Sessions Judge, Ballia, from the court of Additional Sessions Judge, Court No.3, Ballia to Additional Sessions Judge, Court No.4, Ballia, while the trial was at the stage of recording the submission of the accused under Section 313 Cr.P.C. and the same was on the mature stage. It is further submitted that the said transfer was made on administrative ground without assigning any reason to it and even without any prayer made by either of the parties by order dated 27.05.2024. It is further submitted that the accused persons of this case are very influential persons. Earlier they had been granted bail, which was cancelled by the Hon'ble Apex Court and the trial was expedited.
4. A submission has been made at the Bar by learned counsel for the applicant that vide order dated 05.06.2024 in Application U/S 482 No.19117 of 2024 (Nitesh Kumar Singh Vs. State of U.P. and 5 Others), the trial court was directed to decide the pending application under Section 319 dated 28.6.2023 as expeditiously as possible before passing the final judgment, if there is no legal impediment.
5. It is also submitted that the court of Additional Sessions Judge, Court No.3, Ballia/ the trial court passed an order on 23.04.2024 to dispose of the application under Section 319 Cr.P.C. at the stage of judgment. It is next submitted that the said order is in complete violation of the order of the Hon'ble High Court. Further submission has also been made by the learned counsel for the applicant at the bar that the said case after hearing of the arguments has now been fixed on 10.06.2024 for judgment.
6. It is also submitted that the application to transfer the said session trial again to the earlier trial court or to withdraw it to his own court moved before the Sessions Judge, Ballia by the applicant was also rejected by the Sessions Judge, Ballia by the impugned order dated 27.05.2024. It is further submitted that since the order of this Court passed in Application U/S 482 No.19117 of 2024 has not been complied with and the transfer of the case in hand was not a valid order, hence, it is expedient in the interest of justice, to set-aside the order dated 27.05.2024 passed by the learned Sessions Judge, Ballia in Transfer Application No.144 of 2024 (Nitesh Kumar Singh Vs. State of U.P. and others). Further prayer has been made to pass any other order which deems fit and proper to the Court.
7. Learned AGA appearing on behalf of the State has opposed the present transfer application.
8. From the perusal of the record it reveals that Sessions Trial No.123 of 2022(State vs. Sabal Singh @ Amritesh Singh and others) was transferred by the Sessions Judge, Ballia vide order dated 22.3.2024 from the court of Additional Sessions Judge, Court No.4, Ballia to Additional Sessions Judge, Court No.3 Ballia and when the application was moved before the said court to hear and allow the application under Section 319 of Cr.P.C., it was ordered by the learned Additional Session Judge, Court No.3, Ballia that the said application shall be considered at the time of judgment vide order dated 23.04.2024 and further date was fixed. It also reveals from the perusal of the record that when an application to transfer the case to the earlier trial court or to withdraw it to his own court was filed before the Sessions Judge, Ballia, the same was also rejected by the Sessions Judge, Ballia by a detailed order dated 27.05.2024.
9. It is pertinent to mention here that in the order dated 03.04.2024, which is available on record passed by the Additional Sessions Judge, Court No.3 Ballia, the order dated 18.07.2023 passed by the Hon'ble Apex Court for expeditious disposal of the said session trial in Petition being Special Leave To Appeal (crl) No.(s) 5449/2023 (Hari Singh & Hare Ram Singh vs. State of U.P.) is already mentioned.
10. In the order passed by the learned Sessions Judge, Ballia dated 27.05.2024, which is the impugned order in the matter in hand, tt has been held that in paragraph 9 of the said order which is extracted hereinbelow:-
"9. Considering the case of the applicant in the background of the law as enunciated by Hon'ble Supreme Court, it transpires that the applicant entertains imaginary apprehensions and the statements made in the transfer applications are based on conjectures. True, fair trial is a primary requirement of dispensation of justice. But it applies to both the parties to the litigation and not to the informant only. However, the applicant cannot be allowed to malign the institution to get a court of his own choice and thereby demoralized the judicial officers and create impression in the mind of public against some officers in respect to particular quality of the officer. No allegation of impartiality and unfairness has been imputed to the present Presiding Officer in the transfer application. The earlier instances of his apprehension coming true at the stage of bail are not relevant at this stage. It is not that the prophecies of the applicant came to but it is the judicial process where it is assumed that mistake may occurred at any steps of the decision making structure. However, to pre-judge the conclusions and select the courts to get the case decided by particular judge amounts to casting the aspersion on the other members of the judicial fraternity. In fact, the applicant in his hyperbolic tone does not have trust on the whole system. The grounds alleged by the applicants in the T.P. No. 144/2024 'Nitesh Kumar Singh Vs State of U.P. & Ors' are non-existence. Officer is new to the Court and conducting the trial fairly with no imputation of unfairness. The T.P. No. 114/2024 has not been pressed by the applicant as of now, hence, there is no reasonability in the allegations of the applicant. Hence, insinuation and aspersion of the applicant are prima facie improbable, unreasonable and imaginary and based on conjectures and surmises motivated by bench hunting tendency."
11. In the said order it is also mentioned that the session trial under reference was transferred in administrative side invoking the power of the Sessions Judge. It also appears from the impugned order that the applicant was willing the trial be tried and decided by some particular court/Presiding Officer. It is to be clarified here that the order for expeditious disposal of the session trial under reference which was passed by the Hon'ble Apex Court does not denote to a particular court or any particular Presiding Officer. Whosoever may be the Presiding Officer in the court, is bound to comply with the order of Hon'ble Apex Court in letter and spirit. Hence, if the session trial was transferred from one court to another, there was nothing wrong in it and neither of the parties may be permitted to choose a particular court or Officer of his own choice. This is not the prerogative of the parties.
12. Hence, I do not find any infirmity or illegality in the transfer order dated 22.03.2024 passed by the learned Sessions Judge, Ballia and there is no ground to interfere with the said order. The provisions embodied under Section 408 (1), (2) are relevant and are reproduced hereinunder:-
"408. Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one criminal court to another criminal court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower court, or on the application of a party interested, or on his own initiative."
13. The learned Sessions Judge invoking his power under Section 408 of Cr.P.C. has made a transfer order, which does not require any interference by this Court. So far as, the submission that the case has been fixed for judgment on 10.06.2024 by the Additional Sessions Judge, Court No.3, Ballia without disposing the pending application under Section 319 Cr.P.C., is concerned, it is assailed on ground of being in violation of the order of this Court passed in Application U/S 482 No.19117 of 2024 dated 05.06.2024, which has orally been submitted by the learned counsel for the applicant.
14. It is clear from the perusal of the record that the order of this Court was passed on 05.06.2024, whereas the learned Additional Sessions Judge, Court No.3 Ballia had passed the order to consider the application under Section 319 Cr.P.C. at the time of judgment on 23.04.2024, much before the order of this Court. Here it is not clear from the the copies of the ordersheets, which are appended with the affidavit that the said order passed by this Court under the proceedings of 482 Cr.P.C. was ever brought to the knowledge of the trial court.
15. The learned State counsel in this respect has submitted that the proper course for the applicant was that he ought to have moved an application before the trial court enclosing the copy of the order of this Court passed in Application U/S 482 No.19117 of 2024 and make a request to comply with the order of this Court to the trial court, which would be a proper course in this matter but the applicant has not chosen this option.
16. Considering the facts and circumstances of the case and also keeping in view the peculiar circumstances of this case, I do not find any ground to set-aside the order dated 27.05.2024 passed by the learned Sessions Judge, Ballia.
17. However, the applicant is at liberty to produce the copy of the order of this Court passed in Application U/S 482 No.19117 of 2024, before the trial court and make a request for the compliance of the said order.
18. In view of the above, the present transfer application is hereby, rejected.
Order Date :- 7.6.2024 S.K.