State of U.P v. Khushnood and others), crime no
Case Details
Court No. - 70 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 155 of 2022 Applicant :- Saif Alam Opposite Party :- State Of U.P And 4 Others Counsel for Applicant :- Rajesh Kumar,A.C.Srivastava Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the entire record. This transfer application has been moved under Section 407 CrPC, for transfer of Case No.487 of 2014 (State of U.P. vs. Khushnood and others), crime no.287 of 2013, under Sections 420, 406, 386, 467, 468, 471 IPC, P.S. Amroha Nagar, District Amroha pending in the Court of Chief Judicial Magistrate, Amroha to any other court of same judgeship. It has been argued by learned counsel for the applicant that applicant is the complainant of the above stated case. After
Legal Reasoning
registration of first information report of that case, the accused persons have filed a writ petition before this Court for quashing of first information report, which was dismissed. During investigation, the investigating officer without collecting any credible evidence against the accused persons, submitted final report in favour of accused persons, in collusion with them. Applicant has filed a protest petition on 26.05.2015 against the final report in the court of Chief Judicial Magistrate, Amroha but that was not decided for long time and that on 04.01.2022 the next date was fixed as 04.02.2022 but on that date, the applicant could not appear due to lock-down and next date was fixed as 11.03.2022. On 17.02.2022, applicant came to know from reader of the court that next date has been changed and it has now been fixed as 17.02.2022, which gave rise an apprehension in the mind of applicant and thereafter on 17.02.2022 without considering the application of applicant, the matter was fixed for 24.02.2022, which again created serious apprehension in the mind of applicant and he is not going to get justice from that court. Applicant has moved an application before the Sessions Judge, Amroha for transfer of case to some other court but the same was rejected vide order dated
Legal Reasoning
24.03.2022. Learned counsel submitted that applicant has to file some relevant documents before the Court below for just disposal of the case but the learned Magistrate is making pressure upon applicant to get the matter disposed of at the earliest, otherwise the same will be decided ex-parte. The accused are persons of criminal nature and they have political connections and that earlier they have influenced the investigation and now they are influencing the learned C.J.M. The accused persons are having long criminal history. It was submitted that the Court below is not granting time to the applicant for filing of the relevant documents, which are necessary for disposal of the case. It has been submitted that in view of the above stated facts and circumstances of the case, the above stated case be transferred from the Court of C.J.M. Amroha to any other court of same judgeship. Learned A.G.A. has opposed the transfer application and argued that there is no just ground to transfer the said case from the court of Chief Judicial Magistrate, Amroha to any other Court. I have considered the arguments and perused the record. Power under section 407 CrPC, can be exercised by this Court where it is made to appear: (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. The Court, therefore, can act suo moto or when such a request comes from Court below or on an application made by a party concerned. The conditions, on which the power can be exercised under Section 407 CrPC, are: (i) fair and impartial inquiry or trial cannot be had; (ii) some question of law of unusual difficulty is likely to arise; (iii) an order under Section 407 CrPC, is required by any provision of Code of Criminal Procedure, i.e. CrPC,; (iv) it will tend to the general convenience of the parties or witnesses; (v) it is expedient for the ends of justice. 2. In case of Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418, wherein, it has been held: "..... The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not to be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension." It is apparent from the above case law that apprehension of not getting a fair and impartial justice is required to be reasonable and not imaginary based upon conjunctures and surmises. In Vijay Pal and others Vs. State of Haryana and another 1999 (9) SCC 67, the Court said that in absence of any justified reason, it is not proper and legal to exercise power under Section 407 Cr.P.C. In the instant case, the allegations made by applicant in the transfer application appear thoroughly baseless and imaginary. The main grievance of applicant is that the court below is not allowing to him to file relevant documents but there is nothing to indicate that whether any such application was filed by the applicant before the Court for filing of any relevant document, which can be accepted at that stage. The allegation, that court below has changed the date from 11.03.2022 to 17.02.2022, without any information to the applicant, also appears baseless as the applicant himself stated that he was informed about this date by the reader of the Court. The allegation that the court below is fixing dates at small duration can hardly be a ground for transfer of the case. The allegation that accused persons are influencing the court below has no substance and merely a bald allegation has been made and that no material could be shown in support of said allegation. Considering the submissions of learned counsel for the applicant and perusing the record, the transfer application has no substance and thus, liable to be dismissed. Accordingly, the instant transfer application is rejected. Order Date :- 22.4.2022 Neeraj Digitally signed by NEERAJ KUMAR SINGH Date: 2022.05.04 18:51:50 IST Reason: Location: High Court of Judicature at Allahabad