1. Heard learned A.G.A. for the applicant.
2. This is an application filed on behalf of State seeking transfer of S.T.No. 210 of 2008 (State of U.P. Vs. Mohd. Sharif & Ors.) arising out of Case Crime No. 8 of 2008 under Sections 147, 148, 149, 332, 307, 302, 121, 121-A, 122, 120-B, IPC, Section 3/5 D.P. Act and Section 3 Explosive Act, Section 3/4, Public Property Damages Act along with Case Crime No.208 of 2008 under Section 4/5 Explosive Act; Case Crime No.209 of 2008 under Section 25 of Arms Act; Case Crime No.210 of 2008 under Sections 420, 467, 468, 471, 121-A, IPC pending in the Court of Addl. Sessions Judge/Special Judge (E.C.Act) Rampur from Rampur Judgeship to any competent Court at District Lucknow.
3. It is stated that accused-opposite parties are hardcore terrorists against whom cases of heinous crime under various statues are pending at Rampur.
4. Learned A.G.A. states that out of eight accused, five are in Bareilly jail and three are at Lucknow. He, however, submit that for security reason and also looking to the fact that police official are witnesses in the matter, the case should be transferred to Lucknow.
5. It appears from record and averments made in the affidavit, accompanying transfer application, that, initially, applicant State of U.P. approached Lucknow Bench of this Court by filing a transfer application no. 24 of 2012 U/S 407 Cr.P.C., but the same was returned to be presented at Allahabad on the ground of lack of jurisdiction vide Court's order dated 24.2.2012.
6. Background of criminal cases sought to be transferred, relates to an incident which took place on 31.12.2007, when some miscreants (termed by the applicant as terrorists) attacked the camp of Central Reserve Police Force (hereinafter referred to as "CRPF") in the night, causing death of seven CRPF personnel and one unidentified person. CRPF personnel also returned fire, but the assailants escaped. FIR was lodged as Case Crime No. 8 of 2008 on 1.1.2008 at 02:30 A.M. at P.S. Civil Lines, District Rampur, under section 147/148/149/332/307/302/121/121-A/122/120-B IPC. After investigation, Police submitted chargesheets at Rampur being chargesheet No. 89 of 2008 dated 4.4.2008; 137 of 2008 dated 08.05.2008 and chargesheet no. 138 of 2008 dated 8.8.2008.
7. Trial is pending in the Court of Addl. Sessions Judge/Special Judge (E.C. Act), Rampur since then.
8. Eight persons are accused in the aforesaid trial who have been impleaded as respondents No. 1 to 8 in this application. Respondents no. 1 to 5 are detained in Central Jail, Bareilly. Respondents no. 6 to 8 are detained in District Jail, Lucknow. It is said that respondents are hard core terrorists and bringing them from Lucknow and Bareilly, for trial at Rampur, involves en-route security menace, It puts tremendous pressure on different agencies, responsible for maintenance of public order, security etc. Distance from Bareilly to Rampur is about 60 Km and from Lucknow to Rampur it is about 330 Km. A sum of more than Rs. 1,70,000/- is spent every time by Police Department whenever accused are brought to Court for attending trial. Superintendent of Police, Rampur has submitted a report dated 10.1.2012 to District Magistrate, Rampur in reference to Addl. Director General (Personnel & Administrative Reforms), U.P.'s letter dated 20.12.2011, recommending transfer of five accused detained in Central Jail, Bareilly to Lucknow and trial of all the accused at Lucknow for effective pairvi. It is in these circumstances, the State has sought transfer of aforesaid cases to a competent court at Lucknow.
9. Respondents accused after service of notice, have submitted their reply, some through their counsel and some in person through their written objections. Interestingly, all the respondents have opposed transfer application and have requested for its rejection. Some of them have also requested for granting permission to appear in person before this Court to place their stand for opposing this transfer application. However, this Court does not find any necessity for permitting respondents accused to appear in person for opposing this application.
10. Having gone through various facts, I am satisfied that this application deserves to be rejected.
11. Power under Section 407 Cr.P.C. can be exercised by this Court where it is made to appear:
(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.
12. The Court, therefore, can act suo moto or when such an request comes from Court below or on an application made by a party concerned. The conditions, on which the power can be exercised under Section 407 Cr.P.C., are:
(i) fair and impartial inquiry or trial cannot be had;
(ii) some question of law of unusual difficulty is likely to arise;
(iii)an order under Section 407 Cr.P.C. is required by any provision of Code of Criminal Procedure, i.e., Cr.P.C.;
(iv) it will tend to the general convenience of the parties or witnesses;
(v) it is expedient for the ends of justice.
13. Mere allegations like substantial prejudice, non-availability of congenial atmosphere for a free trial cannot be held the sole ground of transfer. Mere apprehension is not enough unless it is supported with some material. A party, either complainant or the accused should not ordinarily be allowed to have the Forum of his/her own choice. A transfer applicant cannot be allowed to make unfounded charges. A transfer should not be granted on a fancied notion of a litigant. Where the ground for transfer is not substantiated and as such does not exist, the application for transfer should not be allowed. It should not be allowed to help a litigant to choose a Bench of his own choice.
14. In Vijay Pal and others Vs. State of Haryana and another 1999 (9) SCC 67, the Court said that in absence of any justified reason, it is not proper and legal to exercise power under Section 407 Cr.P.C.
15. In the present case out of 8 accused, 5 are detained at Bareilly and only 3 are at Lucknow. Trial is pending at Rampur, which is just about 50-60 Km away from Bareilly, while Lucknow is more than 300 Km from Rampur. This Court could not understand as to why no attempt has been made by State to seek transfer of trial, if it was really necessary, to a competent Court at Bareilly and also to transfer the accused persons detained at Lucknow to Bareilly, which could be done by Police Administration on administrative side itself. Moreover, all the accused could have been kept by Police, either in same jail or any other nearby jail, near district Rampur, if for security or other reasons, it was not expedient to detain all of them in one jail.
16. The State Government, it appears, is interested only to have trial transferred to Lucknow. The approach of the State in this regard does not appear to be bona fide. When query was made from A.G.A., he could not give any reply as to why trial was not sought to be transferred at Bareilly or any nearby place. Moreover, between Bareilly and Rampur, no other district intervenes and distance is also quite minimal i.e. 50-60 Km only.
17. Lack of transparency and bona fide on the part of the State is also shadowed from some more facts evident from record . A report from Superintendent of Police, Rampur has been obtained and placed on record before this Court, recommending shifting of five accused from Bareilly to Lucknow and also transfer of trial from Rampur to Lucknow, but no such attempt has been made to get things shifted from Lucknow to Bareilly or Rampur, as the case may be. The State is inclined to get five persons transferred from Bareilly Jail to Lucknow Jail but no reason could be assigned as to why lesser number of accused, who are detained at Lucknow would not be convenient to be transferred to Bareilly. The letter of Superintendent of Police, Rampur mentions expenses incurred in transportation every time of accused persons for trial at Rampur but it has not been disclosed as to whether aforesaid expenses includes transportation of accused from Bareilly to Rampur only or if it is cumulative and total expenses including those of Lucknow also, then how much expenses are incurred in transportation from Lucknow to Rampur and Bareilly to Rampur separately. The things are self-speaking and can quite easily be conceivable that expenses incurred in transporting accused from Lucknow to Rampur must be much more than that in carrying five accused from Bareilly to Rampur. It appears that with a closed mind, concentrating to get the entire things transferred to Lucknow, record has been got prepared and thereafter this application has been filed by the State. This Court can take judicial cognizance of this fact also that Lucknow jail is not safe inasmuch as, several senior officials of the State, having been detained therein, in connection with some other offences died unnatural death, in mysterious circumstances and nothing concrete has come forward till date. In these circumstances, the suggestion of transfer of respondent accused from Bareilly to Lucknow, on the pretext of security, and taking help of Court in getting trial also transferred thereto, smacks lack of bona fide and viciousness on the part of the State. This Court cannot be a party to such an attempt on the part of State of U.P..
18. More so, transfer is also being opposed by the respondents. Looking to the fact that trial is continuing for the last six years without there being any difficulty of alleged security problem etc., I do not find any substance in shallow apprehensions expressed by State in the name of safety and security.
19. It is also a disturbing feature that in such a serious matter, trial has not proceeded expeditiously and has remained unconcluded for such a long time.
20. In my view, nature of trial in this matter needs an expeditious and fast track adjudication. Therefore, the Presiding Officer of the Court at Rampur, hearing the matter, is directed to proceed with the trial in fast track manner and endeavour to complete the same within six months. It will be open to the State, if they find it expedient, to shift all the accused at one place, i.e. either at Bareilly or any place nearby District Rampur. It may also keep the accused in one jail or different jails, near district Rampur so that trial is completed expeditiously.
21. Learned AGA could not dispute that the prosecution witnesses are basically all police officials and delay in trial has occurred due to non-appearance of prosecution witnesses on the date(s) fixed by Trial Court . Some of the orders of Trial Court, fortifying this fact, are also on record. This is very serious matter. Court proceedings and, in particular, criminal trial is being delayed due to absence of prosecution witnesses, particularly when they are Government officials, including police personnel. In fact this is the general condition in all the Court across the State. It reflects callous and reckless attitude on the part of State and its officials, in not cooperating with the institution of judiciary for expeditious disposal of case(s). In other sense, this attitude is nothing but a conduct shown by such persons, causing obstruction in administration of justice and amounts to serious criminal contempt on their part.
22. In this particular case, I further direct the Director General of Police, U.P., Lucknow, to look into this aspect himself and/or entrust supervision to any of his subordinate but senior officer to ensure that trial is not hampered due to absence of prosecution witnesses, and, their presence shall be ensured on each and every date, fixed by Trial Court.
23. I also direct the Chief Secretary, Government of U.P. Lucknow as well as Principal Secretary, Home, Government of U.P., Lucknow to deliberate upon this aspect of the mater, as the similar difficulty is being faced across the State, by all Courts, seized with criminal matters, on account whereof criminal trial and criminal cases are not being decided expeditiously; to ensure presence of Government Officials, appearing as witness, in the concerned Court(s) as a rule and absence should be exceptional and rare and for justified reasons. They should also formulate certain guidelines ensuring for appropriate disciplinary action against erring officials.
24. Trials Courts are also within their authority, whenever find it expedient, to take up appropriate steps for initiating contempt proceedings by making appropriate reference to this Court.
25. The sole objective of all the Courts as also the State, being prosecutor, should be, expeditious disposal of cases in the Courts so that neither accused are harassed for a long time nor such accused who are in jail languish therein, due to extraordinary delay in trial. A concerted effort with due seriousness be made so that huge number of pending cases are decided within a reasonable time. The maxim "justice delayed justice denied" should be kept in mind so as to work conjointly in a manner that no one is denied justice merely on account of delay in the court cases. Legacy of delay which we have inherited from Britishers should now be endeavored to put to an end, by making all out efforts in this direction, and should help in cases being decided with due diligence and expediency, within a reasonable time/expeditiously.
26. In case the Presiding Officer of the Trial Court herein finds it difficult in completion of trial within six months, a progress report justifying extension of time shall be submitted to this Court before expiry of the period of six months for appropriate order. If any such report or application is submitted by Trial Court, the Registry shall place the same before the Court for appropriate order.
27. Subject to the above directions, this application is dismissed.
28. Registrar General is directed to serve a copy of this order to the Chief Secretary, Government of U.P. Lucknow, Principal Secretary, Home, Government of U.P., Lucknow and Director General of Police, U.P., Lucknow for communication forthwith. They shall also submit compliance report after three months i.e., 20th January 2015.
Order Date :- 13.10.2014 KA/Akn