GAURI SHANKER SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) THIS application arises in the following cir cumstances. Sri Gauri Shanker Srivastava the applicant avers that he is a Government Servant and is employed as Sub-Post Master posted at Varanasi Sanskrit Vishwavidyalaya Sub-Post Office, Varanasi but has now been placed under suspension. There was certain complaint against him alleging that he, as Sub-Post Master, committed certain embazzlement of money. A first information report to that effect was lodged on August 12, 1972 at the police station, Chetganj, Vara nasi by Amardeo Yadav, Inspector of Post Offices, Sub-Division, Shivpur. Another first information report was lodged by Senior Superintendent Post Offices, Varanasi on September 4, 1972 against the applicant for embazzlement of money. These two cases were in vestigated by the police of Chetganj, Varanasi and charge-sheets were submitted in the court at Varanasi under Section 409 I.P.C. The applicant further avers that the Criminal Branch Investigation, U.P. Police at Lucknow started the case for investigation on June, 26, 1973 in respect of an alleged misappropriation of a sum of Us. 24851-deposited by Nand Lal Dubey Cashier of Sanskrit Vishwavidalaya, Varanasi. After investigation, the Criminal Branch Investigation, U.P. Police, Lucknow submitted a charge-sheet in the Court of Spe cial Judge Anti Corruptions (East), Lucknow under Section 5 of Prevention of Corruption Act and 409 I.P.C. against the applicant. The list of witnesses in the charge- sheet submitted before the Special Judge discloses that nine witnesses are of Varanasi. The applicant also resides at Varanasi. His contention is that he shall be put to great hardship if he is to face trials at two different places simulta neously namely at Varanasi and Lucknow and that he is a poor man and it will not be possible for him to defend his case at two differ ent places. It would, therefore, be in the interest of justice that the Criminal case No. 2 of 1974 State v. andauri Shanker Srivastuva pend ing in the Court of Special Judge, Anti Corruption (East), Lucknow may be transferred to the Court at Varanasi. He has contended that the Sessions Judge, Varanasi is also Special Judge appointed under the Criminal Law Amendment Act, 1952 and is competent to try the case, on its transfer from the court of the Special Judge, Lucknow. In support of his application the applicant filed his affidavit. A counter-affidavit has been filed by Ram Naresh Singh the Investi gating Officer of the case which is pending in the court of the Spe cial Judge, Anti Corruption (East), Lucknow. In paragraph 7 of the counter-affidavit the defendant gave the names of the witnesses whose names are mentioned in the charge-sheet submitted by the Criminal Branch Investigation, U.P. Police at Lucknow on January 1, 1974 a perusal whereof discloses that out of 14 witnesses 11 witnesses hail from Varanasi. Sri D.D. Goel witness mentioned at serial No. 10 is- shown as a resident of Calcutta and Sri R. B. Rastogi mentioned at Serial No. 13 is shown as a resident of Bareilly. Sri Ram Naresh Singh, the Investigating Officer is residing at Lucknow. In paragraph 10 of the affidavit it is stated that the applicant had not given any list of the defence witnesses and at present only accused applicant's convenience cannot be considered as a factor for the transfer of the case. Further, it is stated that the applicant had been delaying the proceedings and ultimately the proceedings were taken against him under Sections 87 and 88 of the Code of Criminal Procedure for his arrest and production before the Court. On these grounds the ap plication is opposed. In the rejoinder affidavit the applicant reite rated that unless the case is transferred from Lucknow to Varanasi, he would not be able to defend the case properly and that he has to examine about 18 witnesses who reside in Varanasi and it would be impossible for him to take all these 18 witnesses for evidence, to Lucknow. He further alleged that it would require huge amount of money in bringing the witnesses to Lucknow. He contended that he is a poor man and has no means of spending huge amounts for de fending himself by bringing the witnesses from Varanasi to Lucknow. He gave a list of defence witnesses in paragraph 8 of the rejoinder affidavit and stated that all of them reside at Varanasi.

(2.) AT the outset the application was opposed on the ground that a case assigned by the State Government under the Criminal Law Am endment Act, 1952 to a Special Judge cannot be transferred at all because under the terms of that Act such a case must be tried by a Special Judge designated only. It was contended that the charge-sheet in the case pending before the Special Judge Anti Corruption (East) Lucknow was submitted by the Special Police Establishment of the Government and in view of the Notification No. 4683 (4)/VI-315-73 dated January 3, 1974 such a case is triable only by the Spe cial Judge (East) at Lucknow and cannot, therefore, be transferred to any other Special Judge. This contention does not survive in view of the decision of the Supreme Court in Gurcharan Das Chaddha v. State of Rajasthan, A.I.R. 1966 S.C. 1418. This Court in exercise of its jurisdiction and power under Section 407 of the Code of Criminal Procedure can transfer a case from one Special Judge to another Special Judge of equal or superior jurisdiction, subordinate to this Court.

(3.) IN the instant case the applicant has sought transfer of the case pending in the Court of Special Judge (East) Lucknow, on the grounds that (1) the two cases arising out of the same occurrence under Sec tion 409, I.P.C. are pending against him in the court at Varanasi, (ii) it would be convenient to the accused- applicant and the witnesses if the said case is tried at Varanasi inasmuch as the applicant as well as all the witness for the prosecution and the defence, with the excep tion of a few live in Varanasi and (iii) the applicant is a poor man and has no means to spend huge amount for his defence at Lucknow and that it would be impossible for him to take all his 18 witnesses from Varanasi to Lucknow for evidence as that would require huge expenditure. There is no merit in ground No. 1. The allegations are, as stated, that the first case pending at Varanasi relates to em-bazzlement of money with regard to which a first information report was lodged on August 12, 1972. The second case pending against him at Varanasi also relates to embezzlement with regard to which an other first information report was lodged on September 4, 1972. The case pending in the court of the Special Judge (East) Lucknow per tains to another embezzlement said to have been committed on August 31, 1971. These three cases relate to different periods and it would not in my view be a sufficient ground for transferring the case pending in the court of Special Judge (East), Lucknow to another court.