Court No. - 79
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 102 of 2019 Applicant :- Ram Shagar Mishra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Sayed Sohail Asgar
Hon'ble Ram Krishna Gautam,J.
Counter affidavit filed by learned counsel for the opposite party No. 2, is taken on record. Learned counsel for the applicant states that for the same he will not file any rejoinder affidavit.
Heard learned counsel for the parties and perused the record.
This application under Section 407 of Cr.P.C. has been filed by informant complainant Ram Shagar Mishra against State of U.P. and accused-opposite party No. 2, Subedar with a prayer for transferring Sessions Trial No. 261 of 2018 (State of U.P. Vs. Subedar Mishra) under Section 306, 498A pending before Sessions Judge, Kaushambi, arising out of 354 of 2018, Police Station Kokhraj, District Kaushambi from Judgeship Kaushambi to Allahabad.
Learned counsel for the applicant argued that the applicant is informant-complainant of above offence got registered as offence of murder against his own son-in-law and his family members but investigation resulted submission of chargesheet against son-in-law only, leaving behind his family members for offence punishable under Section 306, 498-A I.P.C. trial is proceeding before the Court of Session Judge, Kaushambi, accused being of gunda nature has extended threat for dire consequences in case of appearing as witnesses in trial. An application through registered post in form of complaint was sent to S.P. Kaushambi but of no avail, hence, this application is with above prayer.
Learned counsel for O.P. No. 2 as well as learned AGA has vehemently opposed this application with specific mention in counter affidavit filed by O.P. No. 2 that O.P. No. 2 is a law abiding person having no criminal antecedent and is working at Kanpur in a private glass emporium. This application is to harass him, hence, application be rejected.
Learned counsel for the applicant could not give any account of being gunda of accused O.P. No. 2 nor any specific case crime number or instances are there whereas in uncontroverted affidavit this has been said that no incident is there and O.P. No. 2 is residing at Kanpur Nagar.
Marriage was admittedly of the year 2005 and this death owing to suicide was of year 2018 i.e. after 13 years for which offence of murder was got registered but after investigation, chargesheet for offence of cruelty punishable under Section 498A read with abatement to commit suicide followed by commission of suicide punishable under Section 306 IPC has been filed. Cognizance has been taken over it and file was committed to Court of Sessions where charge was framed and trial is proceeding.
Section 407 of Cr.P.C. provides about the power of High Court to transfer cases and appeal that whenever, it is made to appear to High Court that a fair and impartial enquiry of trial cannot be held in any criminal court subordinate thereto or that some question of law or unusual difficulty is likely to arise or that an order under this section required by any provision of this Code or will tend to general convenience of the parties or witnesses or expedient for the end of justice, it may order for transfer. In the present case none of ingredient and circumstances required as above has been given or argued. Apex Court in Sarsamma Vs. State (2018) 7 SCC 339 has propounded that Court is to evolve the circumstance as is being mentioned and to access as to to whether there is no possibility for conduct of fair and impartial trial at given place which was clearly feasible or there is apprehension of threat to life of applicant or the circumstances provides ground for transfer for end of justice, by fair and impartial trial then and then only application to be allowed. Once it is for using pressure, tactics or is based on desire, the same is not to be accepted.
In the present case, the ground for allowance is not there, hence, the present transfer application is being rejected.
Interim order, if any, stands vacated.
Order Date :- 26.7.2019 Kamarjahan