- (1.) S. K. Phaujdar, J. This is an applica tion under Section 407, Cr. P. C. for transfer of Session Trial No. 222 of 1992, under Sections 394, 302, 307, I. P. C. , pending before the IIIrd Additional Sessions Judge, Ghaziabad, from that Court to any other adjoining district. There was a fur ther prayer that till disposal of the applica tion further proceedings in the trial should be stayed. The application was presented on 25-5-97 and Hon'ble Mr. O. P. Garg, J. , of this High Court recorded an interim order staying further proceedings in the trial. The complainant appeared by him self as he was not made a party. He filed an application for vacation of the stay order and had also. filed a counter-affidavit. Together with the applicant, the State and the complainant were also heard in the matter. In the course of these proceedings an affidavit by Sri D. K. Rajdan, Advocate, of Meerut has also been brought on record.
(2.) THE applicant stated in the affidavit annexed to his application that the presid ing officer of the Court was prejudiced and biased against him. THE applicant was in custody since last 5 1/2 years. Several bail applications were moved by the applicant in the High Court which were dismissed. THE trial, however, could not be concluded even after 51 years. THE complainant hap pens to be an Executive Engineer and in that capacity was an influential person in the locality. He has engaged one Sri Ram Avtar Gupta as a private Counsel and Sri Gupta happens to be his relation as well. This Sri Gupta has been the President of the Bar Association, Ghaziabad, and he had a good number of supporters in the Bar Association and under his personal influence no competent Counsel of Ghaziabad dared to take the brief of the applicant. Finding no Counsel at Ghaziabad the applicant engaged Sri D. K. Upadhyaya, Advocate, from Bulandshahr but he too faced threat and pressure from the lawyers at Ghaziabad and he withdrew from defence. Subsequently, Sri D. K. Rajdan, Advocate who is an eminent criminal lawyer of district Meerut was engaged as a defence Counsel but he too met with a similar treatment and he too was threatened and humiliated by the com plainant and his henchman. The applicant further contended that he had moved an application under Section 482 vide Misc. Application No. 447 of 1997 and this was disposed of by Hon'ble Mr. R. N. Ray, 1, on 3- 2-97 with a direction that the Court below shall try to expedite the trial and in case the prosecu tion witnesses were not examined within three months from 3-2-97 the applicant would be released on bail against adequate bond. It was further stated that after the lapse of three months the applicant moved the court below for bail but the trial Court did. not release on him bail. Thereafter, contempt application was moved and the High Court had passed an order calling for an explanation from the Presiding Officer. The order of the contempt application was conveyed to the Court below and a prayer was made that the hearing of the case should be adjourned. It is stated that when informed of this development the trial Court had observed that he would teach the applicant a lesson for filing a contempt application against him. The complainant came up with a counter affidavit. It was stated that the applicant had concealed material facts and had obtained an interim stay order. It was indicated that the applicant happens to be the son of a Deputy Commissioner of Sales Tax and was thus the son of a well to do and influential man. It was further indicated that after an abscondence for a long period another person was impersonated as Anupam and that person, named Balbir Singn, surrendered in the Court as a dummy of Anupam. That Balbir Singh remained in jail as Anupam for about a month after his surrender and sub sequently the real Anupam was arrested and his bail prayer was repeatedly rejected by the High Court. It was pointed out that on 11-10-95 Anupam had refused to ac cept the services of an amicus curiae and the Court had recorded an order that even after the 31st date and even with the presence of the witnesses on almost on all dates the trial Court could not proceed with the trial. The delay in trial, according to the complainant, was due to the accused himself. In 1992 the applicant had moved an application for transfer from Ghaziabad to any other district there was an ex pane stay order in 1992, finally the transfer application was rejected on 27-7-95. In Misc. Application No. 447 of 1997, the applicant had concealed the real fact and simply contended that he was lan guishing in jail for a long time. He con cealed the fact that at his instance only the trial was stayed from 1992 till 1995. In recording the order under Section 482. Cr. P. C. The High Court gave the ex pane direction as the real facts were not brought to the knowledge of that court. The order dated 3-2-92 was never brought to the knowledge of the Court prior to 8-5-92. It was contended that the application was not one for bail and although an order of expeditious trial could certainly be passed under Section 482, Cr. P. C. The further direction for grant of bail was beyond the jurisdiction of the Court.
(3.) THE affidavit of Sri Daya Kishan Razdan dated 13-10-97 indicates that he was engaged in March, 1997, to conduct the defence ins. T. No. 222 of 1992 pending before the Illrd Additional Sessions Judge, Ghaziabad. When Sri Rajdan had cross-examined P. W. 2 and-a favourable answer was obtained from the witness, the Counsel for the complainant had loudly intervened and gave sufficient hint to the witness to twist his reply. THE Counsel for the complainant habitually and repeatedly intervened in such manner. Sri Rajdan was allegedly threatened in a open court by the two counsel for the complainant as well as by the complainant and they created such an uproar that the deponent had to ask for protection from the Court only to get a smile from the learned Judge. An applica tion was filed indicating that he was unable 10 appear in the case. THE fact of threat was denied by Sri R. A. Gupta. In the applica tion moved by Sri Rajdan, THEre is no in dication that Shri Gupta had intervened during cross- examination and had inter fered in the recording of the deposition or that the Court had tolerated only with smile. THE application simply spoke of threat given to Sri Rajdan. The gist of the transfer application is that the trial Judge was showing definite bias against the applicant. This was in respect of the bail order that was passed on 3-2-97 for which he had been asked to explain against a proceeding for contempt. It is for the concerned Court to decide whether the Sessions Judge would be guil ty of contempt or not. It appears that the order dated 3-2-97 which was recorded not upon a bail application but upon an ap plication under Section 482, Cr. P. C. was never communicated to the concerned Judge prior to 8-5-97. At least it is no averment or claim in the application of the applicant that despite such intimation of that direction the Court below had not acted upon it. The order of the Court below dated 8-5-97 was not annexed. The counter-affidavit indicated that it was never communicated to the Court below. The counter-affidavit further indicated that the High Court was not informed that for three years from 1992 to 1995, the matter remained in suspended animation under a stay order from this High Court upon an earlier transfer application. A prejudice may not, therefore, be presumed from the mere fact of non-compliance of the order dated 3-2-97. As regards non-ap pearance by the Counsel it is gathered that Sri Rajdan had been appearing for the applicant. In his affidavit Sri Rajdan had made certain allegations that were not made in the application for transfer and were not indicated in the petition filed by Sri Rajdan even before the trial Court. This, in my view, takes away the credibility of other averments as well regarding threat given to him. Even if it is accepted that Sri R. A. Gupta is an influential Advocate at Ghaziabad, it is equally on record that the applicant's father is also influential man in the locality it is also difficult to accept that a senior Counsel would be using threat against another Senior Counsel from an outlying station. This is normally not the conduct of the counsel who are usually in friendly terms although their clients may be daggers drawn at each other. The ap plication of Sri Rajdan regarding alleged threats did not indicate that threat had come from Sri R. A. Gupta. It really does not indicate who had given the threat to him. This was refuted by Sri R. A. Gupta then and there.;