Court No. - 79
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 13 of 2019 Applicant :- Aas Mohammad Opposite Party :- State Of U.P. And 2 Ors.
Counsel for Applicant :- Tahir Husain,Mohd.Danish Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This application under Section 407 of Cr.P.C. has been filed by Aas Mohammad against State of U.P. and two others with a prayer for getting sessions trial arising out of Case Crime No. 137 of 2013 (State Vs. Rishipal and others) pending in the Court of VIIth Additonal District and Sessions Judge, Muzaffarnagar, transfered to Court of Saharanpur or any other adjoining district, with this contention that applicant is a witness of the above case arising out of Case Crime No. 137 of 2013, under Section 147, 148, 149, 397, 353, 332, 302, 436, 395 I.P.C. read with Section 7 Criminal Law Amendment Act, Police Station Bhaura Kalan, District Muzaffarnagar, in which an offence of rioting was there. Applicant is at prosection witness No. 32 in above list of trial witnesses. Trial is at the stage of recording evidences wherein 3-4 witnesses of prosection have already been examined. Applicant and other witnesses are facing tremendous pressure for entering into a compromise with accused persons and thereby turned hostile. He is frightened to appear before the trial Court. Sub Inspector of police station O.P. No. 3, is exerting pressure and applicant is receiving repeated call since July, 2018 at his Mobile Phone No. 8532067967 from opposite party No. 3 to his Mobile Phone No. 8855911133 and 9410228135 for entering into compromise. In September, 2018, too O.P. No. 3 has summoned applicant at PWD Guest House, Burhana where in presence of local leaders, this pressure was exerted. Hence, there is no chance of getting justice in above trial. Hence, this application for getting case transferred and till then providing adequate security to applicant and other witnesses.
In counter affidavit, allegations have been denied with specific mention that O.P. No. 3 is of no concern with Mobile Phone No. 8855911133 and so far as Mobile Phone No. 9410228135, is concerned, there is no call made from above phone to alleged phone of applicant. No such pressure was ever exerted nor any question ever arisen. In a complaint made to D.I.G., Saharanpur, a regular enquiry was got conducted and matter was found to be not substantiated. None of the witnesses ever made any complaint about such exertion of pressure. It is only applicant, who is manipulating the facts.
Learned counsel for the applicant argued that there is precedent of such type of cases at Muzaffarnagar, in which witnesses have turned hostile and the same situation is with present case for end of justice, file be transfered.
Learned AGA vehemently opposed this application and prayer made therein.
Having heard learned counsels for both sides and gone through the application and counter affidavit, it is apparent that present applicant is neither informant nor victim. He is simply a witness at Serial No. 32. Trial is proceeding. Witnesses are being examined. Neither the Court passed any order regarding such insecurity or such interference in conduct of trial nor it was every complained to trial Court concerned. The applicant is only witness who has said about his insecurity in present case. Admittedly, the case has been aid to be of riot having emotional factor in it but the exercise of jurisdiction under Section 407 of Cr.P.C. is to be made where conditions written as under:
"407. Power of High Court to transfer cases and appeals.
(1) Whenever it is made to appear to the High Court-
(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, it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309.
(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197."
Whereas, in the present case, no such fulfilment of conditions is there. This application is baseless.
Hence, rejected.
Order Date :- 22.8.2019 Kamarjahan