MOHAMMAD MASHKOOR Vs. STATE OF U.P.

JUDGEMENT

(1.) Vide order of this Court dated 12.10.2009, this transfer petition under Section 407 Cr.P.C., has been clubbed with the two petitions filed by the same petitioner U/s 482 Cr.P.C. i.e. Crl. Misc. Case No. 3651 of 2009 and Crl. Misc. Case No. 3684 of 2009. Therefore, all the three petitions are being decided by a common judgement/order.

(2.) Heard Mohd. Naseerullah, learned counsel for the petitioner, Sri I.B. Singh, Senior Advocate, appearing on behalf of complainant, Sri R.K. Dwivedi, learned Government Advocate for State and perused the material placed on record.

(3.) This transfer petition has been filed mainly on the ground that the learned Presiding Officer has made some remarks in the open court as mentioned in paragraph 6 of the petition to the effect that whatever efforts be made but accused would be convicted. These averments have been controverted in the short counter affidavit filed on behalf of the complainant. In his parawise comments, the Presiding Officer of the Court has also specifically denied those averments. It has been further mentioned in his report that after closing of the prosecution evidence on 06.06.2009, the trial was fixed for 16.06.2009 for recording the statements of the accused under Section 313 Cr.P.C. On that date, on an application for adjournment given by one accused person, case was adjourned for 20.06.2009. Prior to that, nothing was ever said by the accused against the Court. On the aforesaid date the adjournment application was moved only by co-accused Saroj Jain and therefore, there was no question of saying anything in respect of the other co-accused persons (including the petitioner). Statements of accused persons were recorded after 12 noon, though after rising of the Court, the accused mentioned wrong time while signing the statements. Learned court below also mentioned in its report that the adjournment application No. 130 D was rejected by the court keeping in view the direction of the Hon'ble Court dated 02.02.2009 to decide the Sessions Trial within the stipulated time of three months. It appears that this order was not placed before the Court below by the accused persons on the contrary they kept on giving adjournment applications, as mentioned in the order dated 22.06.2009, passed by the learned Sessions Judge while deciding the transfer application moved earlier before him also (Annexure No. 4). It is also noteworthy that the present transfer petition has been filed only by one accused, namely, Mohd. Mashkoor. The other four coaccused have not joined it. The learned Sessions Judge, while rejecting the aforesaid transfer application has observed that after closing of the evidence on 18.05.2009, the trial was fixed for recording statements under Section 313 Cr.P.C. but on 22.05.2009, 27.05.2009, 01.06.2009, 04.06.2009, 06.06.2009 and on 16.06.2009, adjournment applications were moved on behalf of the accused persons. Besides on 27.05.2009, an application was also moved on behalf of the defence under Section 311 Cr.P.C. for recalling of the witness no. 3 which was disposed of in accordance with law. While rejecting transfer application the learned Sessions Judge also observed that from the perusal of the aforesaid order- sheets, it appeared that an effort was being made on behalf of the defence to prolong the proceedings on some ground or the other. In respect of the alleged observation made by the Presiding Officer in open court to the effect that whatever efforts may be made but conviction is inevitable, the learned Sessions Judge observed that till then no arguments were heard and it is only after hearing the arguments and going through the records, that a Presiding Officer reaches to any conclusion and forms any opinion. Therefore, the learned Sessions Judge did not believe that the learned Presiding Officer concerned made the alleged observation. Finally, he rejected the transfer application on 22.06.2009.