Allahabad High Court
Amit Kumar vs State Of U.P. & Anr. on 8 January, 2021
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 29 Case :- U/S 407 CR.P.C. No. - 59 of 2020 Applicant :- Amit Kumar Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Mohit Mishra,Priyanka Pandey Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.
1. Heard Sri Mohit Mishra, learned counsel for the applicant as well as learned A.G.A.
2. By means of the instant petition under Section 407 Cr.P.C. the petitioner has prayed for transfer of Case No.3339 of 2019 under Section 7 of Prevention of Corruption Act, 1989 relating to police station Kotwali City, District Hardoi to any other court of competent jurisdiction.
3. The applicant is the complainant/witness in the case (State of Uttar Pradesh Vs. Kamlesh Kumar Srivastava) in the trial pending before Special Judge, Prevention of Corruption Act, Court No.9, District Lucknow.
4. It has been submitted by learned counsel for the applicant that an application for adjournment was moved on 6.1.2020 due to ill-health of the complainant on which 14.1.2020 was fixed and again the matter was listed on 15.1.2020 and subsequently it was listed on 20.2.2020. One of the grounds raised by the petitioner is that the manner in which the dates have been fixed casts doubt upon fair trial and that bail in the instant case was also granted by the trial Judge and, therefore, on this ground the applicant has moved application for transfer of the said trial before another court.
5. It has also been submitted by counsel for the applicant that due to non-appearance of the applicant the court had issued non-bailable warrants without issuing bailable warrants at the first instance and, therefore, submits that the manner in which the proceedings are being conducted the applicant does not expect a fair trial and, therefore, in the aforesaid circumstances, has moved application for transfer of the aforesaid case. The applicant also placed these facts before the District and Sessions Judge, Lucknow by moving application under Section 408 Cr. P. C. where all the grounds raised were duly considered and rejected on 31.10.2020 which order has been impugned in the present proceedings.
6. It is trite to say that it is the fundamental right of every citizen to have a fair trial and if there is any apprehension of bias then this Court is adequately equipped with the power under Section 407 of Cr. P. C. to transfer any case from one court to another. While exercising jurisdiction under Section 482 Cr. P. C. or 407 Cr.P.C. this Court would look into facts of the case as pleaded by the applicant and determine and satisfy itself about existence of facts which may disclose reasonable apprehension of bias or any set of facts which may disclose that the trial would not be proceeded fairly and on examination of such facts and on recording satisfaction this Court would exercise its power to transfer a case from one court to another.
7. In the present case, merely because the court had granted bail to the accused is not such a fact which would persuade us to exercise the power under Section 407 Cr.P.C. It is right of every accused, who is in custody, to apply for bail and it is the discretion of the court concerned after examining the facts of the case to grant or not to grant bail to the accused. Secondly, merely because dates were fixed in quick succession also does not disclose any such bias. In fact, a perusal of the dates reveals that application for adjournment was duly allowed by the trial court. It is subsequently, due to non-appearance of the applicant that non-bailable warrants issued to the applicant. Needless to say that speedy trial is also one of the rights vested to the accused and the applicant, who is a witness in the case, cannot complain that the dates were fixed in quick succession.
8. Lastly, it has been submitted that non-bailable warrants were issued for securing presence of the applicant without issuing bailable warrants. It has further been submitted by learned counsel for the applicant that the applicant appeared before the court below and after filing personal bond non-bailable warrants were withdrawn. In case the applicant was aggrieved by issuance of the non-bailable warrants, he was at liberty to challenge the same in appropriate forum but he chose not to challenge the same and appeared before the court below.
9. An order which is passed by the trial court is always liable to be subjected to appeal or revision before the higher court but if it remains unchallenged it cannot be said a wrong order and, as such, bias cannot be presumed. As stated above, the bias alleged by the applicant has to be real and apparent. The grounds as disclosed in the petition are not reasonable grounds from which this Court can infer that the trial would not be conducted fairly.
10. In the present case, no other facts or ground has been raised and after due examination of the material available on record, I do not find any infirmity with the order passed by learned Special Judge, Prevention of Corruption Act, Court No.9, District Lucknow.
11. The applicant has been unable to show any reasonable apprehension of bias to persuade this Court to transfer the trial. The application is devoid of merits and is dismissed.
Order Date :- 08.01.2021 (Alok Mathur, J.)
RKM.