ANURANG KUMAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) BY means of this petition moved under Section 482/407 of the Code of Criminal Procedure, the petitioner prays for to issue directions for transfer of Sessions trial No. 41 of 2003 from Session Division, raebareli to any other Sessions Division of the State of Uttar Pradesh for just and fair trial of the case with a direction to the Opp. Party No. 3 not to proceed in the aforesaid trial any further and/or any such other order, which this Hon'ble Court deems fit and proper in the circumstances of the case, may kindly be passed.

(2.) HEARD Dr. L. P. Misra, learned Senior advocate appearing on behalf of the petitioner and sri Arun Sinha and learned a. G. A. on behalf of opposite parties and I have also perused the material available on records.

(3.) LEARNED counsel for the petitioner has submitted that threats were extended by opposite party no. 2 Akhilesh Singh on 22-2-2001; 9-3-2001 and 25-3-2001 to deceased rakesh Pandey. The first information reports were lodged which are on record as annexures 2, 3 and 4, Ultimately, opposite party No. 2 had murdered Rakesh Pandey, the brother of petitioner, on 3-7-2002 and the first information report was lodged. Copy of which is on record as annexure-1. It is further submitted that after registering the case, an application was moved on 19-8-2002 on behalf of the prosecution to issue process under Sections 82/83, Cr. P. C. before the Chief Judicial Magistrate, Raebareli. The same was not allowed. Thereafter, opposite party No. 2 was arrested on 2-9-2002 at the gate of U. P. Legislative Assembly by Lucknow Police. After his arrest, bail application on behalf of opposite party No. 2 was moved and the same was rejected on 18-10-2002 by the Additional Sessions judge, Raebareli. It is further submitted that second bail application was moved before the Sessions Judge, Rae Bareli on 29-10-2002 and the same was allowed on 7-11-2002 by Sri Sayed Hasan, additional Sessions Judge, Raebareli, on the false and frivolous grounds of illness. Thereafter, an application for cancellation of the bail was filed in this Court by petitioner. The said application was allowed on 20-12-2005 whereby the bail granted by the Additional sessions to opposite party No. 2 was cancelled. It was further submitted that Sri Syed hasan, Presiding Officer was reverted by this court by an order passed on administrative side regarding his misconduct to allow the second bail application of opposite party No. 2. Thereafter, the opposite party No. 2 did not appear/ surrender in Court, therefore, this Court has passed orders on 9-1-2006, 10-2-2006 and 6-4-2006 regarding the enquiry of the illness of opposite party No. 2, whereupon the ground of illness was found fake. Later on, he had appeared in the case and after taking into judicial custody he has been sent to jail. It is further submitted that the District Administration transferred opposite party No. 2 to District Jail, Kanpur but the concerned Court of Raebareli passed an order for bringing back the opposite party no. 2 to District Jail Raebarell on 15-1-2006. The said order was challenged by the petitioner in this Court and this Court allowed the petition of the petitioner and issued direction to the Sessions Judge, Raebareli to conduct the trial. Thereafter, opposite party no. 2 filed special leave petition before the supreme Court against the order of cancellation of bail, upon which the Apex Court, vide order dated 9-5-2006, instead of granting bail to opposite party No. 2 emphasized for initiation of trial. On 7-7-2006, the Apex court also directed that the evidence of material witnesses be recorded at the earliest and it also directed that the charge be framed in any case even in absence of accused. After interference of the apex Court, the calculated method of adjourning the case of opposite party No. 2 frustrated and charges could be framed in January, 2007. Thereafter, the material witnesses have been examined and the conduct of Presiding Officer, who was conducting the trial, raised doubt in the mind of the petitioner as he started favouring the opposite party No. 2 in open Court. It is further submitted that an application for discharging hostile witnesses was filed on 11-4-2007 (Annexure-15)but the same was rejected by the trial court and these witnesses were turned as prosecution witnesses. One prosecution witness manoj Pandey, who was ill, was forced by the Court for getting him discharged. It is further submitted that after coming to know that opposite party No. 2 has greased the palm of the presiding officer and then the petitioner moved the transfer application on 6-10-2007. On the transfer application 9-10-2007, 16-10-2007, 24-10-2007, 26-10-2007, and 31-10-2007 were the date fixed but no order of stay of trial was passed by the Sessions Judge, Raebareli. Thereafter, the petitioner waited for about a month for stay of the trial but on one hand the Sessions judge was not staying the proceedings of the trial and on the other hand the presiding Officer was running with the trial and reached up to the stage of 313, Cr. P. C. and Deepawali vacation being on head, the petitioner rushed to the Hon'ble Court and filed the present petition for transfer of the trial from District Raebareli to any other District. Thereafter, transfer application was moved in this Court on 6-11-2007 and order of staying the proceedings of trial was passed on the same day at 11. 15 a. m. Thereafter, at 1. 00 p. m. petitioner filed application before the Sessions Judge, Raebareli for not pressing the bail application. The sessions Judge allowed the application of the petitioner but mentioned that the trial has already been transferred to Additional sessions Judge, Court No. VI, though there is no such order on record. It is further submitted that the petitioner never took any adjournment in the matter and the order sheet show that the opposite party No. 2 has succeeded in getting the matter adjourned for last about five years very conveniently by exercising his influence. It is further submitted that opposite party No. 2 being local m. L. A. of Legislative Assembly, Sadar, district Raebareli and is also dreaded criminal has the capacity to exercise his influence, which is apparent from the above circumstances. Therefore, on these basis this transfer application is liable to be allowed.