Allahabad High Court
Harbir Singh vs State Of U.P. And Another on 17 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2670
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 352 of 2019 Applicant :- Harbir Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Counsel for Opposite Party :- G.A.,Rakesh Kumar Rathore Hon'ble Harsh Kumar,J.
Heard Sri Ajay Kumar, learned counsel for applicant, Sri R.K. Rathore, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.
The instant transfer application has been moved for transferring the case from the court of learned Sessions Judge to other Additional District & Sessions Judge or to Additional Sessions Judge, S.C./S.T. Act in District Mainpuri, arising out of Sessions Trial No.228 of 2006 (State Vs. Harbir Singh and others), under Section 302 I.P.C., P.S. Bewar, District Mainpuri Learned counsel for applicant contends that applicant is one of five accused in Sessions Trial No.228 of 2006 (State Vs. Harbir Singh and others) under Section 302 I.P.C.; that above sessions trial was pending in the Court of Special Judge, S.C./S.T. Act where after completion of evidence hearing of arguments of prosecution was completed and case was pending for arguments on behalf of accused persons; that at such stage the case was withdrawn by Sessions Judge, Mainpuri to his own Court from the court of Special Judge, S.C./S.T. Act vide order dated 17.5.2019 without any reason; that since entire evidence was recorded before Special Judge, S.C./S.T. Act, the trial must have been decided by the same Presiding Officer and withdrawal of sessions trial from the court of Special Judge, S.C./S.T. Act to his own court by Sessions Judge, Mainpuri is absolutely wrong arbitrary and malafide; that during pendency of trial before Sessions Judge, Mainpuri on 20.6.2019 co-accused Shailendra @ Shilu went to call his counsel but in the meantime the Sessions Judge declared him absent and not issued non-bailable warrants against him but also rejected the adjournment application moved by Vijay Pratap Singh, learned counsel for one of the accused on the ground of his illness; that co-accused Shailendra @ Shilu moved an application for recall of order issuing non-bailable warrants which was rejected vide order dated 28.6.2019 and he was taken into custody, however, later on he has been released on bail by Sessions Judge; that on 6.8.2019 the Sessions Judge fixed 14.8.2019 for hearing and orally declared that on next date after hearing for 5 minutes judgment of conviction shall be delivered; that in the circumstances the applicant has no hope of justice from the Sessions Judge, Mainpuri; that in the interest of justice the Sessions Trial is required be transferred back to the court of Special Judge, S.C./S.T. Act; that on 14.8.2019 four accused (applicant and three others out of five accused) moved an application before Sessions Judge, copy of which has been filed at S.A.-5.
Per contra, learned A.G.A. and learned counsel for opposite party no.2, the first informant vehemently opposed the prayer made by applicant for re-transfer of sessions trial to court of Special Judge, S.C./S.T. Act and contended that application has been moved with absolutely false, concocted and baseless allegations which is frivolous and vexatious also; that sessions trial is pending against applicant and four others since 2006 for the offences under Sections 147,148, 149, 307 & 302 I.P.C. and applicant has malafide concealed the other sections of offences in which the trial is pending; that critically old sessions trial relates to murder of nephew of opposite party no.2 of which prompt F.I.R. was lodged on same day i.e. on 8.9.2000; that accused persons continued to abscond for long time and case could be committed to Sessions against them in the year 2006 which is pending for disposal since last 13 years due to delaying tactics of accused persons who all have engaged separate counsel and seeks adjournment turn by turn on one ground or other, so as to avoid their conviction; that in its order dated 20.6.2019 at Annexure-3 the Sessions Judge has observed that sessions trial is pending for final arguments since last 2 years; that on application of co-accused Shailendra @ Shilu under Section 482 Cr.P.C. No.9043 of 2016 against order on application u/s 311 Cr.P.C., order dated 19.8.2016 was passed by this Court which is at page 11 of Annexure-1 to the counter affidavit, wherein this Court had directed the trial court to expedite the trial without granting adjournment from either side on insufficient ground; that above order was passed more than 3 years back but due to delaying tactics of accused persons the trial is still pending; that applicant also moved an application under Section 482 Cr.P.C. No.4561 of 2017 which was disposed of vide order dated 13.2.2017, Annexure-1 to the counter affidavit, directing the trial court to decide the trial most expeditiously, if already not decided, strictly in accordance with law, after hearing the parties and without granting any unnecessary adjournment to either parties, preferably within a period of one year from the date of production of a certified copy of this order before him, provided the proceedings are not stayed by any court of law; that more than 2 yeas have passed since above direction of this Court but the accused persons are delaying the disposal of trial on one excuse or the other; that real fact is that pursuant to notification 1852/Admin.(Service)/2019 dated May 07, 2019 the Special Judge, S.C./S.T. Act, Mainpuri was empowered for trying cases under Section 14 of Scheduled Tribes (Prevention of Atrocities) Act in Exclusive Special Court established vide Govt. Notification No.08/2019/1084/VII-Nyaya-2-2019-124/89 dated 29.4.2019 at Annexure-2 to the transfer application; that since the court of Special Judge S.C./S.T. was designated as Exclusive Special Court so the regular sessions trials were withdrawn by Sessions Judge from his court and this sessions trial was transferred to his own court; that since transfer application was moved by applicant against the Sessions Judge, Mainpuri so in order to provide fair trial the Sessions Judge has suo motu transferred the case to the court of Additional Sessions Judge, Court No.2, Mainpuri; that application is frivolous, vexatious and is barred by proviso to Section 407(2) Cr.P.C. and is liable to be dismissed with special costs in view of provisions of Section 407(7) of Cr.P.C.
Applicant has filed a supplementary affidavit today para 3 of which states that "on 6.8.2019, the learned Sessions Judge abide the transfer application order passed by this Hon'ble Court, thereafter last opportunity was given for hearing of this trial and date was fixed on 14.8.2019. The learned Sessions Judge orally stated in open court argument heard next day only for five minutes, and judgment was pronounced conviction shall be held."; The District & Sessions Judge, Mainpuri vide his letter dated August 06, 2019 has submitted his comments to the Registrar General of this Court that "S.T. No.228 of 2006 is very old and was pending in the court of S.C./S.T., Mainpuri. After Notification No.08/2018/1094/VII-Nyay-2-2019-124/89, dated 29.04.2019 of Hon'ble High Court exclusively jurisdiction to the Court only relating S.C./S.Ts. Remaining cases was pending in this Court have been recall and transfer to another Courts for disposal according to law. Applicant/accused wants the case linger-on and case is running more than one year in argument stage."
Upon hearing parties' counsel and perusal of record, I find that it is not disputed that Special Judge, S.C./S.T. Act was designated as Exclusive Special Court under the government notification as mentioned in Annexure-2 to the transfer application and so the withdrawal of regular trials and cases from that Special Court may not be considered to be wrong or malafide in any manner whatsoever. As far as orders dated 20.6.2019 and 28.6.2019 at Annexures-3 & 4 are concerned, according to applicant the above orders issuing non-bailable warrants against co-accused Shailendra @ Shilu were passed in presence of co-accused Shailendra @ Shilu who had gone to call his counsel. It is pertinent to mention that Shailendra @ Shilu has not come forward with this grievance before this Court and as far as applicant Harbir Singh is concerned, neither he has been authorized by him nor he has any locus to do pairavi on behalf of co-accused Shailendra @ Shilu. It is very much clear from the material on record that five accused were charged with offence under Sections 302 & 307 I.P.C. in a 19 years old case wherein due to delaying tactics of accused persons it took 6 years upto committal and since then on account of continuous delaying tactics of accused the disposal of 13 years old trial is still pending, at the stage of final arguments since last more than 2 years. It is also pertinent to mention that Sessions Judge, Mainpuri has very fairly transferred the sessions trial from his Court to court of another additional sessions judge. As far as the grievance of applicant that his case be transferred back to the Special Judge, S.C./S.T. Act is concerned, the above prayer is may not be allowed in view of the government notification appointing the Special Judge, S.C./S.T. Act as Exclusive special court under notification dated 29.4.2019. The contention of learned counsel for applicant that he has no hope of justice in the judgeship of Mainpuri has no force, is absolutely vague, vexatious and frivolous. It is also pertinent to mention that undisputedly the trial is pending against as many as five accused persons and the transfer application by one of five accused is incompetent because in any case neither the trial may be transferred as a whole on the request of one of five accused nor it may be transferred in piece-meal to the extent of 1/5th.
Learned counsel for applicant has argued for transfer of S.T. No.228 of 2006 from the court of Sessions Judge to to the court of Additional District & Sessions Judge or to the court of Additional Sessions Judge, S.C./S.T. Act in District Mainpuri, however, in the application there is no specific prayer for transfer. It is pertinent to mention that prayer for transferring the sessions trial back to the court of Special Judge, S.C./S.T. Act may not be granted as Special Judge, S.C./S.T. Act has been designated as Exclusive Special Court, and the prayer for transferring it to some other Additional Sessions Judge has no force as the Sessions Judge, Mainpuri has already transferred it to the court of Additional Sessions Judge, Court No.2, Mainpuri suo motu.
In view of discussions made above, I am of the considered view that the learned counsel for applicant has failed to show any real grievance or any threat of injustice. His demand for transferring the sessions trial back to the court of Special Judge, S.C./S.T. Act despite Notification of Government designating it as Exclusive Special Court is also wrong, unjust and baseless. The application for transfer has been moved with malafide intentions which is frivolous, vexatious and is liable to be dismissed with costs.
The application is dismissed with costs of Rs.1,000/- as compensation payable by applicant to opposite party no.2 in view of provisions of Section 407(7) Cr.P.C.
Interim order, if any, stands discharged.
Let a copy of this order be sent to court below for ascertaining expeditious disposal of trial in furtherance of previous directions of this Court dated 19.8.2016 & 13.2.2017 in accordance with law without granting unnecessary adjournment to either party and if possible within 3 months from the date of production of certified copy of this order.
Order Date :- 17.12.2019 Kpy