Court No. - 50
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 223 of 2018 Applicant :- Vidya Devi @ Vidyawati Devi Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Anshul Kumar Singhal Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
The present transfer application has been filed with a prayer for transferring the proceedings of Criminal Case No.327 of 2018, arising out of case crime no.373 of 2017, u/s 498-A, 323, 504, 506 IPC, Police Station Kotwali Fatehgarh, District Farrukhabad, pending in the court of A.C.J.M. (Fast Track) Farrukhabad to District Kannauj or Mainpuri or to any other nearby adjoining district.
Heard Sri Anshul Kumar Singhal, learned counsel for the applicant and learned A.G.A. for the State and perused the record.
Learned counsel for the applicant Smt. Vidya Devi, contends that the distance between Kannauj and Farrukhabad is around 60 kms, and the applicant feels much inconvenience in coming down from Kannauj to Farrukhabad; that the trial court is acting in unjust manner as the application for discharge of accused persons was rejected by the court on 18.1.2017, and 27.1.2017 was fixed for framing of charges and on 27.1.2017, in absence of accused persons, non-bailable warrant was issued against them; that the accused persons preferred criminal revision against the order rejecting discharge dated 18.1.2017, which was registered and admitted on 24.1.2017, but despite filing of revision, the trial court proceeded to issue non-bailable warrant against the accused persons on 27.1.2017 as proceedings of court below were not stayed; that the revision was dismissed by Sessions Judge, Farukkhabad, vide order dated 10.10.2017, directing the accused persons to appear before trial court on 2.11.2017, but learned Magistrate on receipt of record from the revisional court, passed order for issuance of non-bailable warrant as before, without waiting till 2.11.2017; that the learned Magistrate is acting in a very hasty manner and accused persons have no hope of justice; that the case is required to be transferred from District Court, Farrukhabad to District Court, Kannauj or any other nearby district.
Upon hearing learned counsel for the applicant and perusal of record, I find that First Information Report of this case was lodged by opposite party no.2 on 5.9.2013, and six accused persons approached this Court by Civil Misc. Writ Petition No.21094 of 2013, for quashing the First Information Report which was refused by this Court vide order dated 28.10.2013. Thereafter the applicant applied and was granted bail.
It is pertinent to mention that upon investigation, the charge sheet was submitted by Investigating Officer and cognizance was taken by the Magistrate on 21.4.2015, against applicant and her son Prabhat Yadav, who is the son-in-law of opposite party no.2 and upon submission of charge sheet, the accused persons again approached this Court through Application u/s 482 No.15166 of 2016, for quashing of charge sheet and the proceedings of criminal case which was again refused by this Court vide order dated 18.5.2016, filed as Annexure-4 to this application. Thereafter, the accused persons moved an application for their discharge which was rejected vide order dated 18.1.2017, at page 102, under Annexure-15 to the application.
Against the above order rejecting discharge application, the two accused persons preferred criminal revision before the Sessions Judge, which was registered and admitted on 24.1.2017 and the same was dismissed by the Sessions Judge, Farrukhabad vide judgement and order dated 10.10.2017, copy of which is filed as Annexure-10 to this application. It is also admitted that the learned Magistrate had issued non-bailable warrant against the accused persons on 27.1.2017 on which date the proceedings of trial court were not stayed by the revisional court and after dismissal of revision and receipt of the record, the Magistrate ordered to issue N.B.W. as per previous order fixing 2.11.2017, and since the order of non-bailable warrant was in existence, it cannot be adjudged wrong in passing the impugned order. It is also pertinent to mention that the applicant approached this Court through another application u/s 482 No.-6029 of 2018, for getting the non-bailable warrants dated 18.10.2017, quashed, which prayer was again refused by this Court giving her liberty to appear before the court below within 30 days upon which her application for bail will be considered in accordance with law.
In view of the above material on record, it is clear that in this matter of criminal incident of which First Information Report was lodged on 5.9.2013, the accused are not permitting the court below to proceed even after a period of more than four and a half years and after approaching this Court every now and then, through writ petition for quashing of First Information Report and several applications u/s 482 Cr.P.C., for quashing of charge sheet or quashing of order of N.B.W., as well as moving the application for discharge, on rejection of which approaching the Sessions Judge by way of revision. When all the remedies are exhausted, the applicant has approached this Court by way of transfer application which does not appear to be bonafide and appears to have been moved with malafide intention to further interrupt the judicial proceedings of criminal case. The application has been moved to abuse the process of law. It is also noteworthy that undisputedly, there are two accused persons and application by one is legally not maintainable because neither the application for transfer can be allowed without hearing the other co- accused, nor the criminal case can be transferred in piecemeal to the extent of half share to the accused applicant.
The application is devoid of merits and is liable to be dismissed. The transfer application is dismissed accordingly.
Order Date :- 30.5.2018 Shalini