HARBIR SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Ajay Kumar, learned counsel for applicant, Sri R.K. Rathore, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.

(2.) The instant transfer application has been moved for transferring the case from the court of learned Sessions Judge to other Additional District and Sessions Judge or to Additional Sessions Judge, S.C./S.T. Act in District Mainpuri, arising out of Sessions Trial No.228 of 2006 (State Vs. Harbir Singh and others), under Section 302 I.P.C., P.S. Bewar, District Mainpuri Learned counsel for applicant contends that applicant is one of five accused in Sessions Trial No.228 of 2006 (State Vs. Harbir Singh and others) under Section 302 I.P.C.; that above sessions trial was pending in the Court of Special Judge, S.C./S.T. Act where after completion of evidence hearing of arguments of prosecution was completed and case was pending for arguments on behalf of accused persons; that at such stage the case was withdrawn by Sessions Judge, Mainpuri to his own Court from the court of Special Judge, S.C./S.T. Act vide order dated 17.5.2019 without any reason; that since entire evidence was recorded before Special Judge, S.C./S.T. Act, the trial must have been decided by the same Presiding Officer and withdrawal of sessions trial from the court of Special Judge, S.C./S.T. Act to his own court by Sessions Judge, Mainpuri is absolutely wrong arbitrary and malafide; that during pendency of trial before Sessions Judge, Mainpuri on 20.6.2019 co-accused Shailendra @ Shilu went to call his counsel but in the meantime the Sessions Judge declared him absent and not issued non-bailable warrants against him but also rejected the adjournment application moved by Vijay Pratap Singh, learned counsel for one of the accused on the ground of his illness; that co-accused Shailendra @ Shilu moved an application for recall of order issuing non-bailable warrants which was rejected vide order dated 28.6.2019 and he was taken into custody, however, later on he has been released on bail by Sessions Judge; that on 6.8.2019 the Sessions Judge fixed 14.8.2019 for hearing and orally declared that on next date after hearing for 5 minutes judgment of conviction shall be delivered; that in the circumstances the applicant has no hope of justice from the Sessions Judge, Mainpuri; that in the interest of justice the Sessions Trial is required be transferred back to the court of Special Judge, S.C./S.T. Act; that on 14.8.2019 four accused (applicant and three others out of five accused) moved an application before Sessions Judge, copy of which has been filed at S.A.-5.

(3.) Per contra, learned A.G.A. and learned counsel for opposite party no.2, the first informant vehemently opposed the prayer made by applicant for re-transfer of sessions trial to court of Special Judge, S.C./S.T. Act and contended that application has been moved with absolutely false, concocted and baseless allegations which is frivolous and vexatious also; that sessions trial is pending against applicant and four others since 2006 for the offences under Sections 147,148, 149, 307 and 302 I.P.C. and applicant has malafide concealed the other sections of offences in which the trial is pending; that critically old sessions trial relates to murder of nephew of opposite party no.2 of which prompt F.I.R. was lodged on same day i.e. on 8.9.2000; that accused persons continued to abscond for long time and case could be committed to Sessions against them in the year 2006 which is pending for disposal since last 13 years due to delaying tactics of accused persons who all have engaged separate counsel and seeks adjournment turn by turn on one ground or other, so as to avoid their conviction; that in its order dated 20.6.2019 at Annexure-3 the Sessions Judge has observed that sessions trial is pending for final arguments since last 2 years; that on application of co-accused Shailendra @ Shilu under Section 482 Cr.P.C. No.9043 of 2016 against order on application u/s 311 Cr.P.C., order dated 19.8.2016 was passed by this Court which is at page 11 of Annexure-1 to the counter affidavit, wherein this Court had directed the trial court to expedite the trial without granting adjournment from either side on insufficient ground; that above order was passed more than 3 years back but due to delaying tactics of accused persons the trial is still pending; that applicant also moved an application under Section 482 Cr.P.C. No.4561 of 2017 which was disposed of vide order dated 13.2.2017, Annexure-1 to the counter affidavit, directing the trial court to decide the trial most expeditiously, if already not decided, strictly in accordance with law, after hearing the parties and without granting any unnecessary adjournment to either parties, preferably within a period of one year from the date of production of a certified copy of this order before him, provided the proceedings are not stayed by any court of law; that more than 2 yeas have passed since above direction of this Court but the accused persons are delaying the disposal of trial on one excuse or the other; that real fact is that pursuant to notification 1852/Admin.(Service)/2019 dated May 07, 2019 the Special Judge, S.C./S.T. Act, Mainpuri was empowered for trying cases under Section 14 of Scheduled Tribes (Prevention of Atrocities) Act in Exclusive Special Court established vide Govt. Notification No.08/2019/1084/VII-Nyaya-2-2019-124/89 dated 29.4.2019 at Annexure-2 to the transfer application; that since the court of Special Judge S.C./S.T. was designated as Exclusive Special Court so the regular sessions trials were withdrawn by Sessions Judge from his court and this sessions trial was transferred to his own court; that since transfer application was moved by applicant against the Sessions Judge, Mainpuri so in order to provide fair trial the Sessions Judge has suo motu transferred the case to the court of Additional Sessions Judge, Court No.2, Mainpuri; that application is frivolous, vexatious and is barred by proviso to Section 407(2) Cr.P.C. and is liable to be dismissed with special costs in view of provisions of Section 407(7) of Cr.P.C.