Criminal Appeal No. 95 of 2019 · High Court
Case Details
Court No. - 90 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 698 of 2022 Applicant :- Renu Ahlawat Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Saurabh Chaturvedi Counsel for Opposite Party :- G.A.,Rakesh Dubey Hon'ble Syed Aftab Husain Rizvi,J. Heard Sri I.K.Chaturvedi, learned Senior Advocate, assisted by Sri Saurabh Chaturvedi, learned counsel for the applicant, learned A.G.A. for the State and Sri Rakesh Dubey, learned counsel for opposite party nos.2 to 4 and perused the material placed on record. By way of present transfer application under Section 407 Criminal Procedure Code, the applicant is seeking relief to transfer Criminal Appeal No.95 of 2019 (State Versus Naveen Ahlawat and others) under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Agauta, District Bulandshahar, pending before learned Additonal Sessions Judge, Court No.03, Bulandshahar to the learned court of equal and competent jurisdiction or to Sessions Judge, Bulandshahar in District Bulandshahar.
Legal Reasoning
Learned counsel for the applicant contended that the applicant has filed criminal appeal against judgement and order of acquittal dated 02.07.2019 passed by the trial court. The appeal bearing Criminal Appeal No.95 of 2019 was filed before learned Sessions Judge, Bulandshahar and the proceedings moved forward and written arguments and pleadings were exchanged between the parties on various dates from 25.04.2022 to 04.05.2022 and upto 18.08.2022. Thereafter suddenly on 26.08.2022 the learned Sessions Judge transferred the case to learned Additional Sessions Judge, Court No.3, Bulandshahar without any reason by means of a cryptic order. The applicant preferred a transfer application on 03.09.2022 against the said order by means of Criminal Transfer Application No.616 of 2022 before learned Sessions Judge, Bulandshahar, but he rejected the transfer application by order dated 30.09.2022. It is also contended that no reason, whatsoever, has been given by the learned Sessions Judge in its order dated 26.08.2022 as to why the case was being transferred from his own jurisdiction to another court. Learned counsel further contended that under Section 412 Cr.P.C. it is mandatory to state reasons while exercising powers under Section 408, 409, 401 or 411 Cr.P.C. The matter was part heard by the learned Sessions Judge, Bulandshahar, so under the provisions of Section 409 Cr.P.C. the case could not have been transferred to another court. It is also contended that opposite party no.2, Naveen Ahlawat is currently posted in the rank of Brigadier in Indian Army and opposite party no.3 Shivraj Ahlawat is retired from Indian Army after attaining the rank of Major General. They are high ranking officers and by virtue of their posts they have great deal of influence and friends of many other high ranking officials. On many occasions they have misused their power, hence foul play on their part cannot be ruled out. The applicant is apprehending bias from the Presiding Officer of Additional Sessions Judge, Court No.03, Bulandshahar. To secure ends of justice, this transfer application may be allowed and the matter may be transferred either to the court of Sessions Judge, Bulandshahar or to any other court of competent jurisdiction. Learned counsel for the opposite parties contended that the applicant is habitual litigant and consistently making transfer applications on one pretext or to another, alleging bias of Presiding Officer against her and further making allegations that contesting respondent has colluded with Presiding Officer. She has moved six transfer applications, details of which are given in paragraph-4 of the counter affidavit. The conduct of the applicant is of consistently making frivolous and biased allegations against the Presiding Officers to influence in her favour and making assure to get relief in her favour. She is consistently making pressure against the Presiding Officers and successively filed transfer application before Chief Judicial Magistrate as well as Sessions Judge seeking transfer of the case. It is further contended that learned Sessions Judge by exercising his power has transferred the appeal to the court of Additional Sessions Judge, Court No.03, Bulandshahar on 26.08.2022 along with other cases and no prejudice has been caused to the applicant. She has made allegations against the Presiding Officers only on the basis of apprehensions whereas the Presiding Officer has categorically reported that transfer application is baseless and incorrect because neither the applicant nor her counsel appeared before the court on 07.09.2022. The allegations are absolutely false, frivolous and unsustainable. The order passed by learned Sessions does not require interference by this Court. Learned counsel also contended that from order-sheet it is clear that after transfer of the case to the court of Additional Sessions Judge, Court No.03, Bulandshahar on 26.08.2022, the date fixed and on that date the matter was partly heard by the court of Additional Sessions Judge,Court No.03, Bulandshahar, so the matter is part-heard and under the provisions of Section 409 Cr.P.C. the Sessions Judge cannot withdraw the case now. Learned counsel for opposite party no.2 placed reliance on the law laid down by Hon'ble Apex Court in Afjal Ali Sha @ Abjal Shaukat Sha Versus State of West Bengal and others, 2023 LiveLaw (SC) 268 in which the apex court has made following observations: "This Court has allowed transfers only in exceptional cases considering the fact that transfers may caste unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked." From material on record it transpires that vide order dated 26.08.2022, Criminal Appeal No.95 of 2019 as well as Criminal Appeal No.106 of 2019 were transferred to the court of Additional Sessions Judge, Court No.03, Bulandshahar by the Sessions Judge, Bulandshahar. It also transpires that on 13.08.2022, 22.08.2022, 06.09.2022 and 13.09.2022 certain other appeals upto year 2022 were also transferred to other courts from the court of Sessions Judge, Bulandshahar. It is true that at the time of transfer of appeal in question it was part-heard by the Sessions Judge, but exercising his powers as provided under Section 408 Cr.P.C. The Sessions Judge has transferred the criminal appeal to the court of Additional Sessions Judge, Court No.03, Bulandshahar. Under Section 408 Cr.P.C. there is no mandatory provision for assigning reason for transfer of the case. It is also clear that after transfer of the criminal appeal to the court of Additional Sessions Judge, Court No.03, Bulandshahar, it was partly heard by that court on 26.08.2022, but thereafter the applicant/appellant moved a transfer application before the court of Session Judge. One of the grounds taken in the transfer application is that the opposite parties are threatening and exerting pressure on witness Jitendra to change his statement. This ground is totally baseless as the matter is of criminal appeal and there is no occasion of recording of statement of any witness. In transfer application there are general and bald allegations. Learned Sessions Judge, after obtaining comments from the Presiding Officer of Additional Sessions Judge, Court No.03, Bulandshahar, by a detailed and reasoned order dated 30.09.2022, has rejected the transfer application. Transfer of a case on a transfer application should be considered only when there is sufficient and cogent reasons. From material on record it is not clear that there is no sufficient and cogent reason to allow this transfer application filed by the applicant. In view of aforesaid, the transfer application is hereby rejected. Order Date :- 18.4.2023 MN/- Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad