- (1.) SUNIL Ambwani, J. Heard Sri V. B. Singh, Senior Advocate assisted by Sri Uday Pratap Singh for applicants and Sri Ravindra Singh, Additional Advocate General for the State of U. P. Sri A. K. Misra appears for Sri Satish Kumar Shukla, who has intervened in the matter.
(2.) THIS Criminal Misc. (Transfer) Application has been filed under Section 407 Cr. P. C. and Section 25 (2) (3) of the Prevention of Terrorism Act, 2002 (in short the Act No. 15/2002) for transfer of Case Crime No. 10/2003 under Section 3/4 POTA and the attached cases namely Crime No. 9/2003 under Section 25 Arms Act, 11/2003 under Section 4/5 Explosive Substance Act, 12/2003, 13/2003, 14/2003 and 15/2003 under Section 25 Arms Act, P. S. Kunda, District Pratapgarh pending before Special/designated Court, Kanpur Nagar constituted under the Act No. 15/2002, to any other Designated Court in the State and for any other or further orders. In short the facts giving rise to this transfer application are that the applicants are facing trial under Sections 3/4 of the Act No. 15/2002 and the attached cases. The applicant Sri Uday Pratap Singh was arrested in January, 2003. All the cases are pending before the Designated Court, Kanpur Nagar constituted as Special Court within the meaning of Section 23 of the Act No. 15/2002. The second bail application of applicant No. 3 was rejected by the Designated Court on 22-1-2004. The applicant No. 3 preferred a Criminal Appeal No. 1032/2004 against the order under Section 34 of the Act. The Criminal Appeal No. 1032/2004 was allowed by a Division Bench of this Court on 24-2- 2004. The applicant No. 2 filed a bail application before the Designated Court on 5-3-2004. It is alleged in para 5 of the transfer application that after entertaining the bail application and after perusing the entire appellate order dated 24-2-2004, the Designated Judge expressed his inability to entertain the cases, as the learned Judge observed in open Court that in view of the various observations made in the judgment against his order, it is not desirable for him to conduct the cases any further, and informed the counsel for the applicant that he was sending a fax message to Hon'ble the Chief Justice of Allahabad Court through Registrar General for transferring these cases from his Court. It is stated in para-6 of the affidavit that since the Designated Judge has expressed his inability, unwillingness in conducting the case on his own after perusing the order of the High Court and has sent a fax message to the High Court, the applicants are seeking transfer of these cases, as there is no alternative for getting justice in reasonable time and that the applicants are languishing in jail. It is contended that apart from the Designated Court at Kanpur Nagar, the Special Courts have already been constituted at Lucknow, Moradabad, Meerut and Bareilly and that the High Court has jurisdiction under Section 25 (2) and (3) to transfer any pending case before Special Court situated in the State to any Special Court within the State.
(3.) SRI V. B. Singh, Senior Counsel for applicants submits that the applicants have suffered and are suffering heavily by undue delay in seeking justice and their liberty is at peril. He has pleaded for the protection of the right, life and personal liberties of the applicants under Section 21 of the Constitution of India. A supplementary affidavit of Sri Shachindra Pratap Singh, Advocate was filed on 16-3-2004 stating that Sri Sanjai Singh, who has affirmed the affidavit, was physically present before the Kanpur, POTA Court and that the learned Designated Judge had observed in open Court that in view of various observations made in the judgment against his bail rejected order, it is not desirable for him to conduct the case any further.;