Saroj Bala - (1.) THIS an application under Section 407 of the Code of Criminal Procedure for the transfer of S.T. No. 88 of 2005 under Sections 498A and 304B, I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Saraimeer, district Azamgarh, from the Court of Additional Sessions Judge/Fast Tract Court No. 3, Azamgarh to any other Court in the same Sessions Division.
(2.) HEARD Sri Rajiv Lochan Shukla, learned counsel for the applicant, the learned A.G.A., for State, Sri Dinesh Kumar Yadav, learned counsel for the opposite parties Nos. 2 to 5 and have gone through the material on record. The background facts are that the applicant is the first informant of the case. Seven prosecution witnesses and two defence witnesses were examined before the Court of Additional Sessions Judge/F.T.C. No. 3, Azamgarh. Thereafter the dying declaration of victim was summoned on the request of the defence. The Tehsildar by whom the dying declaration recorded was summoned on the application of the defence. On 29.8.2008, the defence witness Subhash Chandra Pandey, Tehsildar posted in district Basti appeared for evidence. An application was moved by the counsel for the complainant for adjournment on the ground that application for transfer of the case to another Court was to be moved before the Sessions Judge. The witness having appeared after long correspondence the trial court was reluctant to adjourn the case. The defence counsel requested the Court to adjourn the case as the complainant was in the look out to get the case transferred by making false allegations. The case was adjourned to 13.9.2008. On 22.9.2008, the complainant's counsel informed the Court about the rejection of the transfer application. The witness Subhash Chandra Pandey was summoned for evidence. On 20.10.2008, the witness appeared and his statement was recorded. The contention of the applicant is that on 9.8.2008, the Presiding Officer alongwith Sanjai accused was seen going in a bus towards Allahabad and the reader was present at the bus stand. It is alleged that the Presiding Officer is conducting the entire proceedings under the pressure of Sri Swami Nath Yadav, the defence counsel. It is alleged that the statement of doctor was recorded in the absence of the counsel for the applicant. According to the applicant, on 29.8.2008 the application for adjournment was moved on the ground that he wanted to get the case transferred to another Court. The Presiding Officer was infuriated on going through the contents of the application and returning the application asked the applicant to get out of the Court. The application was taken back and case was adjourned by the Presiding Officer at the instructions of Sri Swami Nath Yadav, advocate. The co-accused Sanjai had offered Rs. four lacs for compromise which the applicant refused. Co-accused Sanjai threatened him that he would win the case on the strength of said money. The applicant states that these instances have given rise to genuine apprehension that he will not get justice from the trial court.
(3.) THE comments of the Presiding Officer were called by this Court. THE Presiding Officer has stated that he did not go to Allahabad on 9.8.2008. On 9.8.2008, it being second Saturday, the presence of reader residing at a distance for 15-16 kms. from the head-quarter, at the bus stop is unbelievable. THE statement of doctor was recorded on 4.8.2008 in the presence of the Presiding Officer, the Additional Government Advocate (Crl.), the complainant and defence counsel and the witness was cross-examined the same day by the Additional Government Advocate (Crl.). On 29.8.2008, Sri Shiv Dhani Singh counsel for the complainant threatening to get the case transferred insisted for not recording the statement of witness Subhash Chandra Pandey. Since the attendance of witness was procured after long correspondence he was unwilling to adjourn the case. THE defence counsel intervened and offered to bear the expenses of the witness, the case was adjourned. This transfer application making frivolous allegations has been moved by the applicant in consultation with his counsel Sri Shiv Dhani Singh. The learned counsel for the applicant submitted that the applicant having seen the Presiding Officer going in the bus with one of the accused and the subsequent conduct of the Presiding Officer on 29.8.2008 in returning the adjournment application and taking it back and adjourning the case at the insistence of defence counsel has given rise to the apprehension that the applicant will not get justice.;