Court No. - 82
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 554 of 2019 Applicant :- Birendra Mani Tripathi Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Amit Misra Counsel for Opposite Party :- G.A.
AND Case :- TRANSFER APPLICATION (CRIMINAL) No. - 556 of 2019 Applicant :- Birendra Mani Tripathi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Misra Counsel for Opposite Party :- G.A.
AND Case :- TRANSFER APPLICATION (CRIMINAL) No. - 559 of 2019 Applicant :- Birendra Mani Tripathi Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Amit Misra Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
Heard Sri Amit Misra, learned counsel for applicant, Sri M.P. Singh Gaur, learned A.G.A. for the State and perused the record.
These transfer applications have been moved for transferring (i) Criminal Case No.2361 of 2019 (State Vs. Kusumawali @ Kusum Tripathi), under Sections 504, 506 I.P.C., Case Crime No.209 of 2015, P.S. Ashiyana, District Lucknow (ii) Criminal Case No.2359 of 2019 (State Vs. Kusumawali @ Kusum Tripathi), under Sections 323, 504, 506, 427 I.P.C., Case Crime No.342 of 2014, P.S. Ashiyana, District Lucknow and (iii) Criminal Case No.2360 of 2019 (State Vs. Kusumawali @ Kusum Tripathi), under Sections 352, 323, 504, 326 I.P.C., Case Crime No.156 of 2015, P.S. Ashiyana, District Lucknow from the court of C.J.M., Deoria, Sessions Division, Deoria to any other court of competent jurisdiction in Sessions Division of District Lucknow or any other adjoining district.
Learned counsel for applicant contends that applicant is father- in-law of opposite party no.2 and he is an old and sick person aged about 77 years, suffering from various ailments; that there is matrimonial dispute between Shiv Mani Tripathi, the son of applicant and Smt. Kusumawati, the opposite party no.2 and various matrimonial cases have been filed by both sides Shiv Mani Tripathi and Smt. Kusumawati under various provisions of Hindu Marriage Act, Domestic Violence Act, Section 498-A etc. of I.P.C. and Maintenance Petition under Section 125 Cr.P.C.; that due to misbehavior and misconduct of opposite party no.2 and incidents of pelting of stones and throwing of slippers on applicant committed by her from time to time, the applicant lodged three F.I.Rs. against his daughter-in- law/opposite party no.2 on the basis of which criminal cases were pending in the court of Magistrate in the Sessions Division, Lucknow as (i) Criminal Case No.41150 of 2015, under Sections 504, 506 I.P.C., (ii) Criminal Case No.45796 of 2015, under Sections 352, 323, 504, 326 I.P.C. and (iii) Criminal Case No.3702 of 2016, under Sections 323, 504, 506, 427 I.P.C., all in the name of State Vs. Smt. Kusumwati @ Kusum Tripathi; that opposite party no.2 moved a Transfer Application No.23 of 2018 under Section 407 Cr.P.C. before Lucknow Bench of High Court seeking transfer of various cases between husband and wife and mischievously with malafide intentions also included above mentioned cases between applicant and opposite party no.2 without impleading applicant who was necessary party for transferring above cases from Sessions Division, Lucknow to Sessions Division, Deoria with an additional ground that since cases of civil nature between the parties (husband and wife) have been transferred from Lucknow to Deoria on her transfer application under Section 24/Order XXXIX Rule 2A of C.P.C. No.32 of 2018 vide order dated 7.9.2018; that in above transfer application Lucknow Bench of High Court was pleased to pass order transferring all the cases between Shiv Mani Tripathi and opposite party no.2 as well as between applicant and opposite party no.2 from Sessions Division, Lucknow to competent court of Magistrate at Sessions Division, Deoria vide order dated 17.1.2019 without impleading applicant or issuing notice to him or giving him reasonable opportunity of hearing; that in above mentioned three cases (which are not sought to be re-transferred back from Deoria to Lucknow) Shiv Mani Tripathi, the husband of opposite party no.2 is not party and all the cases have been initiated in furtherance of the F.I.Rs. lodged by applicant; that upon transfer of above cases from Sessions Division, Lucknow to the court of Magistrate in Sessions Division, Deoria (i) Criminal Case No.41150 of 2015, under Sections 504, 506 I.P.C., (ii) Criminal Case No.45796 of 2015, under Sections 352, 323, 504, 326 I.P.C. and (iii) Criminal Case No.3702 of 2016, under Sections 323, 504, 506, 427 I.P.C. were re- numbered as (i) Criminal Case Nos.2361 of 2019, under Sections 504, 506 I.P.C., (ii) Criminal Case No.2359 of 2019, under Sections 352, 323, 504, 326 I.P.C. and (iii) Criminal Case No.2360 of 2019, under Sections 323, 504, 506, 427 I.P.C. Learned counsel for applicant further submitted that since above mentioned three cases have been transferred to Deoria in furtherance of order dated 17.1.2019 of Lucknow Bench of High Court Allahabad and are pending before Deoria and since Deoria comes within the jurisdiction of Allahabad High Court and beyond the jurisdiction of Lucknow Bench so the transfer application is maintainable before this Court; that if for any reason the Court comes to the conclusion that matter may be considered and decided only by Lucknow Bench then in view of the judgment passed by this Court in the case of Smt. Jyotsan Dixit Vs. Civil Judge, Khiri and others, (1999) 1 AWC 107, the Court may pass order for transferring these transfer applications for disposal by Lucknow Bench.
Per contra, learned A.G.A. opposing the three transfer applications contended that that this Court has no jurisdiction to try the transfer applications; that facts of case of Smt. Jyotsan Dixit are different from this case as in that case transfer application was moved in respect of case pending in the court of Lakhimpur Khiri within the jurisdiction of Lucknow Bench and so the transfer application was transferred to Lucknow Bench for disposal; that cases sought to be transferred were filed at Lucknow and only Lucknow Bench has jurisdiction to try the transfer applications. He further contended that main grievance of applicant is that order dated 17.1.2019 transferring all these three cases from Lucknow to Deoria was passed without his impleadment and giving him opportunity of hearing and opposite party no.2 mischievously played a fraud in not disclosing that above cases were initiated on F.I.Rs. lodged by applicant Birendra Mani Tripathi, without impleading him; that so the applicant may seek recall of order or modification of order before the same Bench apprising it the fact that order was obtained by opposite party no.2 by playing fraud and was passed without giving him opportunity of hearing and no fresh application for transfer is legally maintainable before this Court; that applicant may also plead before the same Bench about his illness and old age at the time of moving such recall/modification application; that applications for trnasfer as moved at Allahabad are not maintainable and are liable to be rejected.
Upon hearing parties' counsel, perusal of record and considering the fact that applicant alone is first informant of all the three cases which were transferred from Lucknow to Deoria and have been sought to be transferred back from Deoria to Lucknow, Shiv Mani Tripathi, son of applicant and husband of opposite party no2. is not party in any of these cases being aggrieved with the transfer of cases from Lucknow to Deoria without affording him opportunity of hearing he has appropriate remedy of seeking recall or modification of order before the same Bench with plea of his ailments and old age and no fresh application is to be entertained by this Court.
In view of discussions made above without commenting on merits of the cases, the applications are disposed of with the observation that applicant is at liberty to seek his remedy before the Lucknow Bench or as advised.
Order Date :- 26.11.2019 Kpy