Allahabad High Court
Mohd. Irfan And Another vs State Of U.P. And Another on 16 September, 2022
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 50
RESERVED
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 102 of 2020
Applicant :- Mohd. Irfan And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohd. Rashid Siddiqui,Abhinav Gaur,Anoop Trivedi (Senior Adv.)
Counsel for Opposite Party :- G.A.,Sadaful Islam Jafri
Hon'ble Rajiv Gupta,J.
Heard Shri Anoop Trivedi, learned Senior Advocate, learned counsel for applicant, Shri N.I. Jafri, learned Senior Advocate, learned counsel for O.P. No.2 and learned A.G.A. and perused the record.
Present Transfer Application has been filed by two accused persons who are facing trial in S.T. No. 302 of 2019, State of U.P. Vs. Irfan and another, arising out of case Crime No. 0093 of 2017 under sections 147, 148, 149, 307, 302, 504, 506, 34 of I.P.C. P,.S. Kharkhauda, District Meerut praying to transfer the aforesaid Session Trial from Sessions Division Meerut to any other Session Division.
It appears from the record that besides the two applicants, there are thirteen other accused persons who are facing trial in the present case. Earlier Transfer Application ( Criminal) No. 84 of 2019 was filed by the co-accused, Usman. The said Transfer Application was heard by Hon. Rajul Bhargava, J., as he then was and vide order dated 1.5.2019, the said Transfer Application was rejected. Thereafter as a second attempt, the instant Transfer Application has been moved on the ground that the real brother of the first informant, Sartaj Alam is an influential Advocate in District Court Meerut and had also contested the election for the member of Bar council, U.P. and is also active in politics in Meerut District Bar Association and has number of followers in the District Court Meerut. It is further stated that one of the injured, namely, Mehraj Alam is the nephew of O.P. No.2 Sartaj Alam and is also an Advocate and also a witness and they had earlier influenced the investigation process also. It is further stated that since it was a case of murder of the nephew of Sartaj Alam, therefore, no counsel of District Meerut is ready to contest the case of the applicant before the trial court, Furthermore, the said advocates are -2- creating hindrance in the progress of the trial and the applicants are also being extended death threats to their life, if they attend the court proceedings and as such the present transfer Application be allowed and the case be transferred to any other District.
In order to buttress his argument, learned counsel for applicant has relied upon the judgement of Transfer Application (Criminal) No. 188 of 2015, Lavindar Tomar Vs. State of U.P. and another and its subsequent judgment by the Hon'ble Apex Court passed in Criminal Appeal No. 1392 of 2015, Lavindar Tomar Vs. State of U.P and another and also the judgment reported in (2005) 10 Supreme Court Cases 493, Ravindra Singh Negi and others Vs. Virendra Singh Negi and another.
Per contra, learned A.G.A. as well as learned counsel for O.P. No.2 has vehemently opposed the said prayer and has submitted that though Sartaz Alam is an advocate in the District Court Meerut and had also contested the election for the member of State Bar Council of U.P. but he has neither created any problem nor had ever put any hindrance in conducting the trial of the present case in which 13 other co-accused persons are already facing trial and the witnesses of facts have already been examined and no objection has ever been raised by the accused persons, who are already facing trial in connected S.T. No. 473 of 2017. The factum of influence has also been categorically denied. Further it has been categorically denied that after the resolution dated 13.2.2017 the District Bar Association has never passed any other resolution in the present case. It has been further submitted that the applicant has already engaged two advocates, namely, Pramod Tyagi and Pankaj Sharma to do pairavi in the present case and except bald allegation that on account of Sartaj Alam, no counsel of District Court Meerut is ready to contest the case of the applicant, there is nothing on record to fortify the said assertion. The case arising out of the same incident relating to 13 other co-accused has already proceeded in the said Sessions Division and no hindrance whatsoever was ever caused by Sartaj Alam or Mehraj Alam as alleged.
-3-Learned counsel for Opposite parties has further drawn the attention of this Court to the order dated 28.3.2022, passed by this Court, wherein the Sessions Judge, Meerut where the trial is pending, was directed to submit a report in respect of instant session trial No. 302 of 2019, State Vs. Irfan and another, arising out of same case crime number. Pursuant to the said order, learned Sessions Judge, Meerut has sent a letter dated 4.4.2022 where in it has been clearly stated that in S.T. No. 302 of 2019 pending against two applicants Mohd. Irfan and Furkan, no such application has ever been moved before the trial court that they have ever been hindered to enter in the court premises. Learned counsel for the applicant has further submitted that there is nothing on record to show that either Sartaj Alam or Mehraj Alam have ever obstructed them to reach the court premises and face the trial. As such in the backdrop of the aforesaid facts and circumstance, it is evident that allegation on the basis of which, the transfer is being sought, is baseless having no legs to stand and the prayer of transfer is being made only for lingering on the trial, despite the fact the earlier transfer Application filed on almost identical grounds, has already been rejected by this Court vide order dated 1.5.2019 and now again the said exercise for getting trial stayed has been made. Perusal of the record further shows that trial against the applicants has been stayed by this Court since 2.9.2020 though the trial of other co-accused in which thirteen other accused persons have been nominated has been proceeding without any hindrance and witnesses of fact have already been examined.
Having considered the rival submissions made by learned counsel for the parties and on perusal of record, it is evident that earlier transfer application filed by co-accused Usman, primarily on the same ground has already been rejected by this Court vide order dated 1.5.2019 and after rejection of the said transfer application, the trial against thirteen other co-accused proceeded without any hindrance and all the witnesses of fact has already been examined and till date no objection has ever been raised by the accused persons regarding the conduct of Sartaj Alam or Mehraj Alam as alleged in the present application and they are already facing trial in S.T. -4- No. 473 of 2019 arising out of the same incident. Except bald allegation, there is no clinching material to transfer the case from the Court of Sessions Division, Meerut to any other Court. Even this Court vide earlier order dated 28.3.2022 had directed Sessions Judge, Meerut to submit a report in regard to the proceeding of S.T. No. 302 of 2019, State of U.P. Vs. Irfan and another and the Sessions Judge, Meerut vide his report dated 4.4.2022 has clearly stated that none of the applicant had ever moved any application before him stating there in that any person had obstructed or hindered the applicants to enter in the court premises which clearly speaks of the facts that by means of present transfer Application, another attempt is being made to get sessions trial stalled for indefinite period and that too by two co-accused persons. The trial of the other 13 co-accused has proceeded without any hindrance or obstruction either by Sartaj Alam or Mehraj Alam and there is absolutely no allegation of any threat perception to them.
So far as the cases cited by learned counsel for applicants are concerned they are based on their own fact and have no relevance in the present case.
In the first case cited by learned counsel for the applicants, transfer application was rejected by this Court, being aggrieved by the said order the applicant had approached Hon'ble Apex Court who was pleased to allow the transfer application. Perusal of the facts of the case shows that since the informant was an influential advocate, no counsel was ready to defend his case and as such Amicus Curiae was appointed by the court to defend him. However, in the present case, in the other trial the accused persons are being defended by counsel of their own choice and even earlier applicant has also engaged Shri Pramod Tyagi and Pankaj Sharma to defend him but later on, on the pretext that no counsel was available to defend them, the present transfer application has been filed, which is nothing but an exercise to linger on the trial of present two accused.
In the second case cited by learned counsel for the applicants reported in (2005) 10 Supreme Court Cases 493, Ravindra Singh Negi and others Vs. Virendra Singh Negi and another is also based -5- on its own fact and can not be said to be a precedent wherein it has been held that petitioners were facing some problem on account of fact the two lawyers were exercising some influence and taking extra interest on account of execution of power of attorney in favour of one of them by one of the plaintiffs in the suit.
In the instant case, no hindrance has ever been caused by any person against the co-accused persons arising out of one and same incident. In the said trial, witnesses of fact have already been examined and the trial is proceeding without any hindrance or threat perception, as alleged in the present case.
In the backdrop of the aforesaid circumstances, I am of the view that prayer for transferring the Session Trial from Sessions Division, Meerut to any other Court is baseless and has no legs to stand. Present Transfer Application has no merits and is liable to be rejected.
The present Transfer Application is accordingly rejected.
Order Date :- 16.09.2022 R