Heard Sri Sushil Shukla, learned counsel for the applicant, Ms. Archana Singh, learned AGA- I and perused the record.
By means of the instant application u/s 407 Cr.P.C., the applicant Firoz Varun Gandhi (M.P.) is assailing the order dated 28.11.2018 passed by learned Special Judge (MP/MLA), Allahabad in connection with Criminal Appeal (Govt.) No. 28 of 2013 (State of U.P. through District Magistrate, Pilibhit Vs. Varun Gandhi) arising out of Case Crime No. 238/2009, u/s 153A, 295A, 505(2) IPC and section 125 of Representation of People Act, 1951, P.S. Kotwali, District Pilibhit and further prayed that the aforesaid application may be transmitted back to learned IIIrd Additional Sessions Judge, Pillibhit for the adjudication.
The number of factual repercussions has culled out from the pleadings are as follows:-
That on 17.03.2009 the S.H.O., P.S. Barkhera, Pilibhit has lodged an FIR against the applicant during election of the year 2009. The said FIR was registered giving rise to case crime no. 255/2009, u/s 153A, 295A, 505 (2) IPC and section 125 Representation of People Act, 1951 and after investigation the applicant was charge-sheeted. The applicant was put to trial by means of criminal case no. 2339/2009 and eventually it concluded in favour of the applicant vide judgment and order dated 05.03.2013 acquitting the applicant from all the allegations under section 153A, 295A, 505 (2) IPC and section 125 Representation of People Act, 1951.
State of Uttar Pradesh in its own wisdom through District Judge, Pilibhit has filed a Criminal Appeal before Sessions Judge, Pilibhit in terms of section 378 (1)(a) Cr.P.C. challenging the order of judgment of the acquittal passed by C.J.M., Pilibhit. The said Appeal was numbered as Criminal Appeal (Govt.) No. 27/2013 (State of UP through District Magistrate, Pilibhit Vs. Varun Gandhi). While challenging the appeal which was pending for consideration before concerned appellate court at Pilibhit, Hon'ble Apex Court in the case of Ashwini Kumar Upadhyay Vs. Union of Inida & anr- WP (Civil) No. 699 of 2016 has recommended to all the State Government for establishing an exclusive Special Courts in their respective States dealing and deciding the pending cases against MPs/MLAs within their respective territory. Accordingly, by notification by Joint Registrar (J)(Services), High Court of Judicature at Allahabad by notification no. 2936/Main-B(MP/MLA)/Admin.(A-3)/Alld has directed the Special Secretary, (Nayay Anubhag-2), Government of Uttar Pradesh, Lucknow to create dedicated courts for the post of Higher Judicial Services cadre at Allahabad exclusively for the TRIAL of criminal cases pending against MPs/MLAs covering territory jurisdiction of all the districts in the State of U.P. It was canvased by the learned counsel for the applicant that this notification dated 22.02.2018 in no uncertain terms deals with the cases where the "TRIALS" of criminal cases pending against MPs/MLAs of all the districts in the State of Uttar Pradesh would be transferred to Special Judge at Allahabad.
It is further submitted by the learned counsel for the applicant that pursuant to the aforesaid notification a reminder was issued bearing no. 606/Admin (Services) Allahabad dated 26.02.2018 all the districts in the State of U.P. by which they were requested to transfer all the criminal "cases/files" pending against elected MPs/MLAs within their respective judgeship through special messengers. It is further contended by the counsel for the applicant that in the reminder the word used is "cases/files" was misconstrued by the concern authorities and all the files including the file of pending appeals related to the elected MPs/MLAs were transmitted to Allahabad. It is contended that the notification date 22.02.2018 is self-explanatory which speaks about the PENDING TRIALS of criminal cases. It is further argued by the counsel for the applicant that this misconception was further clarified by yet another notification of this High Court bearing notification no. 620/Admin.(Services)/Allahabad dated 09.10.2018 which reads as under:-
"In the aforesaid reminder the words "files" may be understood to mean only those cases, which are pending for trial"
On this clarification the learned counsel for the applicant states that these notification dated 22.02.2018 and 09.10.2018 clearly indicates that record of those cases would be transferred where it related to pending trial of elected MPs/MLAs to Allahabad before the Special Judge and not the appeal. It is submitted by the counsel for the applicant that on the aforesaid facts the transfer application was moved before the court of Special Judge MPs/MLAs, Allahabad on 28.11.2018 with the prayer to send back the files/records of Criminal Appeal No. 27 of 2013 to the court of competent jurisdiction i.e. before learned Sessions Judge, Pilibhit and learned Special Judge (MP/MLA), Allahabad vide its order dated 28.11.2018 has rejected and casted unwarranted expulsion on the motive of the applicant which reads thus:-
"पत्रावली के परिशीलन से विदित होता है की प्रत्यर्थी / अभियुक्त अवर न्यायालय से दोषमुक्त किया गया है, जिसके विरुद्ध उत्तर प्रदेश राज्य ने अपील दाखिल की है I ऐसा प्रतीत होता है की प्रत्यर्थी / अभियुक्त अपील की सुनवाई बाधित करने एवं उसका निस्तारण न होने देने के लिए क्षेत्राधिकार सम्बन्धी प्रार्थना पत्र प्रस्तुत किया गया है I"
After hearing the learned counsel for the applicant at length, learned AGA and perused the record, I find that the notification more particularly amended notification dated 09.10.2018 has cleared of all the webs of any misconception that this notification is only against the pending trials and not the appeals. Certainly, the concerned authorities ought to have properly construed the notifications dated 22.02.2018 and 09.10.2018 and not the reminder.
The learned Special Judge ought not to have casted unwarranted expulsions about the motive and intentions of the applicant. I hereby expunge those expulsions mentioned above and direct the Special Judge, MPs/MLAs , Allahabad may transmit back the records of criminal appeal (Govt.) No. 27.2013 before learned Sessions Judge Pilibhit within a period of one month from today and it is expected from learned Sessions Judge, Pilibhit would decide the appeal on merits of the case expeditiously preferably within six months from its receipt.
With the aforesaid observations, the present application stands allowed.
However, there is no further order as to cost.
Order Date :- 21.12.2018 Nisha