BABU LAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) In Sessions trial No. 62 of 1980 the charge was framed by Sri J. B. Singh, Vth Additional Sessions Judge, Allahabad. He also recorded the statement of one witness in part. Thereafter the designation of that Court was changed and the case was transferred to the file of Sri V.K. Sarkar. He recorded the entire evidence in the case. Again at that late stage, the designation of Sri Sarkar was changed and the case came to the file of Sri D.C. Agarwal. An application for transfer was filed before me by the accused Mulaim Singh others praying that the case be transferred from the Court of Sri D.C. Agarwal to the court of Sri V. K. sarkar, who had recorded major part of the evidence. That application was allowed by me on 25th July 1983. The case was then continued by Sri V. K. Sarkar, inasmuch as three dates for arguments viz. 1st September, 1983 2nd September 1983 and 5th September 1983 were fixed in his court. On those three dates the arguments were heard in part from both the sides and they finally concluded on 5th September 1983 and 12th September 1983 was fixed for delivery of judgment. At this stage, the complainant Babu Lal Singh has come to this Court with the instant transfer application No. 8105-B of 1983 and the prayer is that the case be transferred to the court of Sri J.B. Singh, who bad framed the charge and who had recorded part of the evidence. A narration of facts would be incomplete without mentioning that even prior to this transfer application the complainant had moved this Court by Transfer Application No. 1619 of 1983. That application was filed on 2nd March 1983. It was listed before Justice Gopi Nath and was dismissed by him in default on 9th May 1983. It appears that on May 1983 an application was filed for restoration of the transfer application and for setting aside the order dismissing the same in default. That application appears to be still pending.

(2.) In the instant application for Transfer No. 8105-B of 1983, which was filed before me on 9-9- 1983, it has been mentioned in para II that the applicant had been advised that no restoration is permissible under law in a criminal matter under the Code of Criminal Procedure and that he should make a fresh application for transfer.

(3.) It is not known as to when this legal advice was tendered to the applicant. As mentioned above two days after the dismissal of the transfer application in default by Justice Gopi Nath, the application for rest ration was filed on 11th May 1983. The applicant having not disclosed before the court the fact as to the date when such legal advice was tendered to him, it can safely be presumed that it must be sometime prior to the moving of the instant application dated 9.9.1983 or in between and after the filing of the restoration application. Be that as it may, the fact cannot be ignored that right from 11th May 1983 till 9th September 1983 the applicant did not take any step in order to move this Court afresh for the transfer of the case from the court of Sri V. K. Sarker to the court of Sri J. B. Singh. About four months have passed by. No fresh application for transfer was made. As a matter of fact, when I passed an order on 25th July 1983, transferring the said Sessions Trial from the court of Sri D. C. Agarwal to the court of Sri V. K. Sarkar, it appears that no objection was taken and the parties fully participated in the arguments which were heard on 1st September, 2nd September, and 5th September 1983. Counsel for the applicant has mentioned that the complainant did not participate. He did not deny that the State represented him. As a matter of fact, State is the custodian of the complainantTs interest, and conducts criminal cases and is responsible for the same. Sri R. P. Singh, counsel for the other side has stated that the State fully participated and advance arguments in the said transfer application on the dates mentioned above. I fail to understand as to what kept the complainant sleeping for this long period of four months. If he can come to this Court at this stage, when merely judgment has to be pronounced by the subordinate court, he could certainly have made an application to the Sessions Judge, who was hearing the arguments and objected to the continuance of the same. There is nothing on die record to indicate that any such objection was filed before Sri Sarkar. In these circumstances, I am of the view that the- instant application for transfer is a mala fide application which has been made at such a belated stage, for which there is no justification on the facts of this case.