- (1.) O. P. Garg, J. These arc ten applications under Section 407 of the Code of Criminal Procedure with the prayer that the Criminal Cases No. 25 of 1996 (R. C. No. 2 (s) of 1995), 34 of 1996 (R. C. No 3 (s) of 1995) and 35 of 1996 under Sections 120-B/376/392/354/323/504, I. P. C. pending before Special Magistrate, C. B. I. Dehradun be transferred to some other district where the Court of Special Magistrate, C. B. I. is available as in Lucknow now holding court at Moradabad.
(2.) THE facts leading to the present applications may briefly be stated as follows: An agitation is going on for the creation of a separate Uttarakhand State. On 1-10-1994, the Uttarakhand agitators were going to Delhi from Dehradun to press their demand for a separate State. In the night of 1/2-10-1994, while the agitators were passing through Rampur Tiraha under Police Station Chuapra, district Muzaffarnagar in buses, the police personnel of the district checked the buses carrying several hundreds agitators, in order to maintain law and order, the police officials from various police stations were called. Applicants in all the ten applications are the police officials. It was alleged that the agitators were manhandled by the applicants and other police officials; some of the lady agitators were raped, molested and subjected to indignities; they were wrongfully confined. A Division Bench of this Court directed the C. B. I. to investigate the matter into the alleged ugly incident and atrocities com milled by the police officials. After investigation of the case, three charge-sheets were filed in then Court of Special Magistrate, C. B. I. at Dehradun in consequence whereof, three case Nos. 25/96, 34/96 and 35/96 were registered. Learned Magistrate issued processes against the applicants who are accused in the aforesaid case to procure their attendance. Common grounds taken in the present ten transfer applications are that since on account of continued Uttarakhand agitation, the atmosphere at Dehradun which is at the footsteps of the hill region, is inordinately surcharged and, therefore, personal safety and security of the applicants is at stake; applicants are not getting legal assistance of the lawyers of their choice either from Dehradun or the neighbouring districts and that the atmosphere at Dehradun court is not congenial to hold trials - fairly and impartially. Counter and rejoinder affidavits have been exchanged. Learned Counsel for the applicants as well as learned special counsel for C. B. I. , on behalf of the opposite parties have been heard at considerable length.
(3.) THE main plank on which the case of the present applicants is founded is the order, dated 3-5-1996 passed by Hon'ble C. A. Rahim J. in other similar transfer applications whereby criminal case numbers 709/95, 711/95 under Sections 120-B/182/211/218, I. P. C. and Section 25, Arms Act, and Criminal Case No. 10 of 1996 under Sections 109/120-B/342, I. P. C. pending in the Court of Special Magistrate, C. B. I. Dehradun were transferred to the file of Special Magistrate, C. B. I. Lucknow with the observations that he shall held that trial at the District Court campus at Moradabad. It was pointed out that in the aforesaid decision, it was held that "since Dehradun is situated in the lap of Uttarakhand hills and has become one of the centres of Uttarakhand movement, it is very difficult to have a peaceful trial". It was further observed thru 'the conduct of the Special Magistrate clearly indicates that he is suffering from fear psychosis. It may be that presence of the booth of Uttarakhand Sangharsh Samiti near at hand or ii may be due to environment which is charged with anger and passion. In such circumstances if the applicants feel that they will not be able to get due and impartial justice, they cannot be blamed. 'learned counsel for the applicants urged that the various observations made by Hon'ble C. A. Rahim, J. In the earlier transfer applications squarely apply to the case of the present applications and, therefore, the transfer of three cases, named above, namely. Case Nos. 25/96, 34/96 and 35/96 would be eminently justified. Sri Girdhar Nath, Special Counsel for C. B. I, repelled various submissions made by learned Counsel for the applicants and urged that the cases, which have been transferred by earlier order passed by Hon'ble C. A. Rahim, J. are quite distinct and different from the cases, which are pending against the applicants in the court of Special Magistrate, C. B. I. Dehradun; that it cannot be said that the surcharged atmosphere at Dehradun still persists and that the non-availability of lawyers to the applicants of their choice by itself cannot be a ground for the transfer of ten case, as prayed for. In support of his submission, learned Special Counsel for the C. B. I. , placed reliance on a case reported in A. L. R. (38) 151 Allahabad-355 - Girishnarain Awasthy v. The State through V. N. Misra, Munsif Etawah in which it was observed that a transfer of the case would not be justified on the ground that the case causes a sensation in the district or the place where the case is tried. A reference was also made to paragraphs 21,22,23, and 24 of a case State of Punjab v. Gurmit Singh and others, AIR 1996 SC 298 : 1996 JIC 611 (SC), in which it was observed that a victim of rape who has undergone a traumatic experience is made to repeat again and again in unfamiliar surroundings, to what she was subjected to, she may be too ashamed and even nervous or confused to speak. On the strength of the aforesaid case, learned Special Counsel for the C. B. I. argued that the lady witnesses would not be in a position to frankly depose about the incident if the case is transferred to another district and that the witnesses are adamant not to go for recording their evidence at a place other than Dehradun as it would result in inconvenience and agony to them.;