# Criminal Misc. Transfer Application No. 64 of 2008 Rakesh Srivastava "Nyayik" v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-15
- **Case number:** Criminal Misc. Transfer Application No. 64 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/criminal-misc-transfer-application-no-64-of-2008-rakesh-srivastava-nyayik-v-43101
- **Pages:** 7

## Headnote

Cr.P.C. Section 407- Transfer of Session
Trail
Case
from
Varanasi
to
another
adjoining district-on ground the applicant
being social worker and author of book
subject to life of prisoners- explosure of
mafia, bureaucrats and politicians-safety of
applicant in danger as per report confirmed
by
SSP-held-mere
apprehension
not
enough-unless
supported
by
same
material-can not be grated on a fancied
notion of litigant-transfer not be allowedbut considering entire fact and with consent
of both parties counsel-application allowed
with observation of expedition conclusion
of Tail within 6 month-necessary followup
directions to jailor, SSP given.
Held: Para-15 & 17

## Text

3 All]. Rakesh Srivastava "Nyayik" Vs. State of U.P. & Anr.
1217
still alive and it has wrongly been
mentioned that he has expired.
17. In the entire body of the
application nowhere it has been stated that
Shri R.D. Maheshwari has expired and
that therefore it was necessary to appoint
a new Arbitrator. It is only in the
chronology list of dates and events that it
has
been
stated
that
Shri
R.D.
Maheshwari had expired in the meantime.
However, since this fact has not been
categorically stated in the application
under Section 11(6) of the Act, 1996 and
does not appear to be correct in view of
the categorical denial of his death in
paragraph 3 of the counter affidavit and
undenied by the applicant, I do not find
any illegality or infirmity if the dispute
has
been
remanded
to
Shri
R.D.
Maheshwari to consider afresh in the light
of the observations made by the District
Judge.
18. In this view of the matter, the
application under section 11(6) of the Act,
1996 is absolutely misconceived in law,
devoid of merit and not maintainable and
is accordingly rejected.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2014
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Criminal Misc. Transfer Application No. 64
of 2008
Rakesh Srivastava "Nyayik"
...Applicant
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Sri Sanjay Srivastava, Sri S.I. Siddiqui,
S.M.A Kazmi
Sri Saiful Islam Siddiqui, Tahira Kazmi, Sri
Syed Safdar Ali Kazmi
Counsel for the Respondents:
A.G.A., Sri Manish Tewari, Sri Ankur
Tandon, Sri Ashwani Kumar Awasthi
Cr.P.C. Section 407- Transfer of Session
Trail
Case
from
Varanasi
to
another
adjoining district-on ground the applicant
being social worker and author of book
subject to life of prisoners- explosure of
mafia, bureaucrats and politicians-safety of
applicant in danger as per report confirmed
by
SSP-held-mere
apprehension
not
enough-unless
supported
by
same
material-can not be grated on a fancied
notion of litigant-transfer not be allowedbut considering entire fact and with consent
of both parties counsel-application allowed
with observation of expedition conclusion
of Tail within 6 month-necessary followup
directions to jailor, SSP given.
Held: Para-15 & 17
15. Mere allegations like substantial
prejudice, non-availability of congenial
atmosphere for a free trial cannot be
held the sole ground of transfer. Mere
apprehension is not enough unless it is
supported with some material. A party,
either complainant or the accused should
not ordinarily be allowed to have the
Forum of his/her own choice. A transfer
applicant cannot be allowed to make
unfounded charges. A transfer should
not be granted on a fancied notion of a
litigant. Where the ground for transfer is
not substantiated and as such does not
exist, the application for transfer should
not be allowed. It should not be allowed
to help a litigant to choose a Bench of his
own choice.
17. Looking to the entire facts of the
case and also with consent of learned
counsel
appearing
for
parties,
for
transfer of trial at Allahabad, in my view,
it would be appropriate if the aforesaid
Sessions Trial is transferred to Allahabad
with
appropriate
direction
for
its
expeditious adjudication and conclusion.
1218
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
1999 (9) SCC 67
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri S.M.A.Kazmi, learned
Senior Advocate, assisted by Sri Saiful
Islam Siddiqui, learned counsel for the
applicant, Sri Ankur Tandon, Advocate,
holding brief of Sri Manish Tewari,
learned counsel for opposite party no.2,
learned A.G.A and perused the record.
2. This is an application under
Section 407 Cr.P.C. filed by applicant
seeking transfer of Session Trial No.201
of 2007 (State Vs. Rakesh Srivastava
Nyayik), pending in the Court of Special
Judge, SC/ST Act, Varanasi to some other
district on the ground that opposite party
no.2, complainant, is influential person in
Varanasi and therefore, applicant has
several apprehension, which have been
detailed in the application.
3. In fact further proceeding of trial
was stayed by this Court in 2008 and for
the last six years and more, nothing has
proceeded in the matter.
4.
Facts in brief as disclosed in the
affidavit accompanying transfer application
are, that, the applicant is a social worker. He
is also author of the book on the subject of
Life of prisoners in U.P., titled as "Jail
Apradh". A number of other facts have been
stated in respect of various other litigations in
which the applicant is involved, which,
according to him were for reform of social
system, exposure of mafia, bureaucrats and
politicians' nexus etc, which in my view is
not necessary to be detailed so far as this
transfer application is concerned. Suffice it to
mention that the applicant is a retired Custom
Officer. FIR was lodged on 27.05.1990 by
the applicant's father against one Rajendra
Kumar Gaur who is alleged to be closest
man of Awadhesh Rai, brother of respondent
no.2. In the aforesaid matter, chargesheet
was filed and Sessions Trial No. 155 of 1991
under Sections 452/307/504 IPC commenced
in the Ciourt of 8th Additional Sessions
Judge, Varanasi. It is said that the aforesaid
report caused reason of enmity between
applicant and his family vis a vis the family
of
Awadhesh
Rai,
elder
brother
of
respondent no.2 Ajay Rai.
5. Respondent no.2 lodged a report
against applicant, being Case Crime No.
229
of
1991,
under
Sections
147/148/149/302 IPC, at P.S. Chetganj on
3.8.1991 reporting an incident of firing in
which
Awadhesh
Rai,
brother
of
respondent no.2 died. The applicant was
named as one of the accused therein along
with Mukhtar Ansari, Kamlesh Singh,
Bheem Singh and Abdul Kalam.
6. Police submitted chargesheet
no.101
of
1991
dated
02.10.1991
whereupon the Court took cognizance and
trial proceeded against applicant and
others. The applicant is being tried in
Sessions Trial No. 201 of 2007 under
Sections 147/148/149/302 IPC.
7. It is said that respondent no.2
used to threat the applicant in Court
premises to eliminate him. The applicant
brought this fact to the notice of Court
vide application dated 23.11.2007 and
26.11.2007, whereupon trial court sought
report from Senior Superintendent of
Police, Varanasi (hereinafter referred to as
"S.S.P.") vide order dated 07.12.2007.
The report was submitted on 10.12.2007
in which threat to safety of applicant was
confirmed by S.S.P. and he clearly said
that trial involves a notorious criminal
3 All]. Rakesh Srivastava "Nyayik" Vs. State of U.P. & Anr.
1219
mafia and may go to the extent of
eliminating, even by taking recourse to
help
of
unsocial
elements.
He
recommended that trial may be held at
Central Jail Varanasi, instead of Court
premises. It is in these circumstances, this
application has been filed seeking transfer
of Sessions Trial No. 201 of 2007 to some
other district from Varanasi.
8. At the initial stage, when this
matter was taken up by on 29.01.2008,
notice was issued to respondent no.2 and
learned A.G.A. was also permitted to file
counter affidavit. The Court in the
meantime, stayed further proceedings in
the aforesaid Sessions Trial until further
orders. That is how trial has not
proceeded at all for the last more than six
years.
9. A Parcha has been filed by Sri
Ashwini Kumar Awasthi and Manish
Tiwary Advocates on behalf of opposite
party but no counter affidavit has been
filed at all.
10. On behalf of the State respondent
no.1, a counter affidavit through Additional
Government Advocate has been filed stating
that the present application has been filed
only to linger trial and therefore, it should be
rejected. It is said that the applicant even
otherwise has no grievance and he can
always approach S.S.P. for redressal of his
grievance.
11. When this matter was taken up
for hearing, learned counsel appearing for
respective parties did not seriously
dispute transfer of trial. Report of SSP
which has been filed as Annexure 18 to
the application is self speaking and
paragraphs no. 3 and 4 thereof may be
reproduced as under:
^^3-
mDr
eqdnesa
dh
lquokbZ ,d dq[;kr ekfQ;k ds
fo:) py jgh gSA og vius fo:)
lk{; dks lekIr djus ds fy;s
fdlh
Hkh
vlekftd
rRo
dk
lgkjk ysdj ?k`f.kr dk;Z djk
ldrk gSA
4-
mDr
fjiksVZ
}kjk
mijksDr
eqdnesa dh lquokbZ
U;k;ky; ds ctk; lsUVay tsy]
okjk.klh esa djk;s tkus dk
vuqjks/k fd;k x;k gSA**
"3. Hearing of the aforesaid case is
going on against a notorious Mafia. In
order to eliminate evidence against him,
he can take resort to any vicious act with
the help of unsocial elements.
4. Through the aforesaid report, a
prayer for conducting hearing of the
aforesaid case at Central Jail, Varanasi
instead of Court, has been made."(English
translation by Court)
12.
The aforesaid report, facts and
recommendation contained in paras 3 and 4
of the report of S.S.P., as noted above, show
seriousness of the matter and degree of threat
perception in the case in hand. This fact by
itself is sufficient for this Court to pass
appropriate order so that trial must conclude
expeditiously and within reasonable time but
without possibility of any untoward incident.
In case like the present one, final
adjudication of the matter at the earliest is of
utmost importance. In the garb of transfer
application, trial in the matter of a heinous
crime can/should not be allowed to remain
suspended for a long time.
13. Power under Section 407
Cr.P.C. can be exercised by this Court
where it is made to appear:
1220
 INDIAN LAW REPORTS ALLAHABAD SERIES
(a) that a fair and impartial inquiry
or trial cannot be had in any Criminal
Court subordinate thereto, or
(b) that some question of law of
unusual difficulty is likely to arise, or
(c) that an order under this section is
required by any provision of this Code, or
will tend to the general convenience of the
parties or witnesses, or is expedient for
the ends of justice.
14. The Court, therefore, can act suo
moto or when such an request comes from
Court below or on an application made by
a party concerned. The conditions, on
which the power can be exercised under
Section 407 Cr.P.C., are:
(i) fair and impartial inquiry or trial
cannot be had;
(ii) some question of law of unusual
difficulty is likely to arise;
(iii)an order under Section 407
Cr.P.C. is required by any provision of
Code
of
Criminal
Procedure,
i.e.,
Cr.P.C.;
(iv) it will tend to the general
convenience of the parties or witnesses;
(v) it is expedient for the ends of
justice.
15. Mere allegations like substantial
prejudice, non-availability of congenial
atmosphere for a free trial cannot be held
the sole ground of transfer. Mere
apprehension is not enough unless it is
supported with some material. A party,
either complainant or the accused should
not ordinarily be allowed to have the
Forum of his/her own choice. A transfer
applicant cannot be allowed to make
unfounded charges. A transfer should not
be granted on a fancied notion of a
litigant. Where the ground for transfer is
not substantiated and as such does not
exist, the application for transfer should
not be allowed. It should not be allowed
to help a litigant to choose a Bench of his
own choice.
16 In Vijay Pal and others Vs. State
of Haryana and another 1999 (9) SCC 67,
the Court said that in absence of any
justified reason, it is not proper and legal
to exercise power under Section 407
Cr.P.C.
17. Looking to the entire facts of the
case and also with consent of learned
counsel appearing for parties, for transfer
of trial at Allahabad, in my view, it would
be appropriate if the aforesaid Sessions
Trial is transferred to Allahabad with
appropriate direction for its expeditious
adjudication and conclusion.
18. The application is accordingly
disposed of. I direct that Sessions Trial
No. 201 of 2007 (State Vs. Rakesh
Srivastava Nyayik), pending in the Court
of Special Judge, SC/ST Act, Varanasi
shall stand transferred to a competent
Sessions Court at Allahabad. The trial
court at Varanasi shall forthwith transmit
record of the aforesaid trial to Allahabad
and the District and Sessions Judge,
Allahabad, after receiving record, shall
either hear the case himself or nominate
any other Court of competent jurisdiction
for trial, expeditiously. The Court at
Allahabad shall make endeavour to
conclude trial within six months. In case
the Presiding Officer of Trial Court at
Allahabad finds difficulty in completion
of trial within six months, a progress
report, justifying extension of time shall
be submitted to this Court, before expiry
of the period of six months, for
3 All]. Rakesh Srivastava "Nyayik" Vs. State of U.P. & Anr.
1221
appropriate order. If any such report or
application is submitted by Trial Court,
the Registry shall place the same before
Court for appropriate order.
19.
Before parting, this Court would
like to place on record another aspect, which
has seriously disturbed it. It is evident from
the record that earlier Sessions Trial No. 201
of 2007 was proceeding against the applicant
and other co-accused. However, the Trial
Court used to adjourn, noticing the message
conveyed to it by a co-accused or the
complainant's witness that they shall not
remain present in Court on that date and,
therefore, the matter should be adjourned.
Similarly on another date, again trial was
adjourned because the accused detained in
jail could not be produced by jail authorities.
Two orders of Trial Court dated 19.12.2007
and 08.01.2008 are on record as Annexure
22 to the affidavit filed in support of transfer
application. It would be appropriate to
reproduce orders dated 19.12.2007 and
08.01.2008, passed by Trial Court, to see the
manner,
in
which,
Trial
Court
was
adjourning the case, as if it was working
under the command of the accused or
complainant. In fact the tone and tenor of the
order is sufficient to show otherwise
influence enjoyed by such persons. The
orders dated 19.12.2007 and 08.01.2008 read
as under:
^^19-12-07
46&[k] 47&[k] 48&[k] 49&[k] 50&[k
vkt eqdnek izLrqr gqvkA vkt
vfHk;qDr eq[rkj vgen is'kh ij vfHkj{kk
esa xkthiqj tsy ls ugha vk;saxs
D;ksafd bl ckcr xkthiqj tsy v/kh{kd dk
i= Hkstk x;k gS tks i=koyh esa 50[k
layXu gSa ! vfHk;qDrx.k jkds'k dqekj
JhokLro] deys'k dh gktjh ekQh dh
nj[okLrA is'k gksdj vkns'k gqvk fd vkt
ds fy, Lohd`rA vkt vt; jk; xokg ds rjQ ls
muds vf/koDrk us izkFkZuk i= fn;k fd
os xSj ftyk x;s gSaA vkt mifLFkr ugha
jgsaxs] vr% vYi frfFk gsrq izkFkZuk
Lohd`rA eqdnek fnukad 08-01-2008
okLrs 'ks"k ftjg is'k gSA**
^^08-01-08
51&[k] 52&[k] 53&[k]
^vkt
eqdnek
izzLrqr
gqvkA
vfHk;qDr jkds'k dqekj U;kf;d dh gktjh
vkt muds vf/koDrk }kjk ekQ dh x;hA
eqyfteku Hkhe flag o deys'k ftyk dkjkxkj
xkthiqj ls ryc gksdj U;k;ky; esa is'k ugha
fd;s x;sA vfHk;qDr eq[rkj vgen ds ckjs
esa ftyk dkjkxkj v/kh{kd xkthiqj ls i= ds
lkFk Nk;k izfr esfMdy Hksth x;h gS fd
mudks is'kh ij Hkstuk laHko ugha gS
D;ksafd chekj gSaA vkt vfHk;qDrx.k ds
vf/koDrk mifLFkr gSaA vkt oknh vt; jk; ds
vf/koDrk }kjk izkFkZuk i= izLrqr fd;k x;k fd
os xSj ftyk ls okil ugha vk;s gSa vr% vYi
frfFk okLrs - - - fu;r fd;k tk;A nj[kkLr
,Mhthlh dksVZ }kjk lefiZr fd;k x;kA vr%
Lohd`r fd;k x;kA i=koyh fnukad 22-012008 okLrs 'ks"k ftjg ihMCyw0 1 is'k
gksA**
"19-12-07
46 Kha, 47-Kha,48-Kha,49-Kha, 50
Kha
Case was presented today. Today
accused Mukhtar Ahmad in custody shall not
appear before the Court from Ghazipur Jail
because in this regard a letter of Ghazipur
Jail Superintendent has been received which
is enclosed to file as Paper no. 50 Kha.
Application of accused Rakesh Kumar
Srivastava and Kamlesh for exemption from
personal appearance, presented and orderedAllowed for today. On behalf of witness
Ajay Rai, his counsel has given application
that he has gone outside the District and will
not
remain
present,
therefore
the
adjournment application for a short period, is
allowed. The case be placed on 08.01.2008
for remaining cross examination.
1222
 INDIAN LAW REPORTS ALLAHABAD SERIES
"08.01.2008
51 Kha, 52-Kha,53 Kha
Case was presented today. Personal
appearance of accused Rakesh Kumar
exempted
through
counsel.
Accused
Bheem Singh and Kamlesh were not
produced in Court from District Jail
Ghazipur.
With
respect
to
accused
Mukhtar
Ahmad,
medical
certificate
along with a letter has been sent by the
Superintendent, District Jail, Ghazipur,
stating that it is not possible to present
him in Court because he is ill. Counsel for
accused persons is present today. An
application has been moved by counsel
for complainant Ajay Rai, praying that he
has not come back from outside the
district, hence the case may be fixed after
short period..... Application moved in
Court by ADG (ADGC). Hence, allowed.
File be put up on 22.01.2008 for
remaining cross examination of PW-1."
20.
This attitude of Presiding Officer
of Trial Court, proceeding on the dictates of
either accused or complainant, or on mere
inaction on the part of jail authorities in
producing accused before it in their own
discretion and command, deserves to be
condemned and deprecated seriously. It
appears as if the Trial Court proceeded snail
pace for convenience of the accused and
others and under their command. The two
orders placed on record do not show that it
was the Presiding Officer of Trial Court who
was commanding proceedings of his Court.
Once trial starts, it is duty of Trial Court to
proceed with trial on day to day basis and
complete it without any unnecessary delay. If
jail authorities, including Jail Superintendent
and concerned police authorities are acting
with laxity, causing non-production of
accused, detained in jail, on the date fixed
before Trial Court, enough powers are
conferred
upon
Trial
Court
to
take
appropriate action against such erring
officials but instead thereof, it has chosen to
simply adjourn the matter as if it is solely
helpless. This Court could not understand as
to why appropriate action against erring
officials
of
jail
authorities
was
not
recommended by Trial Court to higher
authorities, besides taking judicial deterrent
action available under various statutes, by
itself.
21. It is in these circumstances,
taking cognizance of the manner, in
which trials in certain criminal cases,
where accused etc. are quite influential,
resourceful and powerful personalities, do
not proceed with due expedience, some
directions are required be issued. I order
accordingly and as under:
(I)It shall be personal as well as
official responsibility of jail authorities
including Jail Superintendent/ Jailer as
also local police authorities to ensure that
all the accused are presented, without fail,
in concerned Court(s) on the date fixed
for trial.
(II)In case any accused is not able to
go to Court on account of medical
reason(s), a proper certificate issued by
Government Medical Officer. Jail Doctor,
duly countersigned by Chief Medical
Officer concerned must be produced
before
the
Court
concerned.
In
appropriate cases wherever Trial Court
finds any reason for doubt or suspicion, it
shall
take
appropriate
steps
for
verification of such ground of nonproduction of accused in Court.
(III)In case there is any laxity or
failure
on
the
part
of
authorities
concerned, Courts concerned shall take
immediate deterrent action against erring
officer/officials. It will also be open to
3 All]. Rakesh Srivastava "Nyayik" Vs. State of U.P. & Anr.
1223
them to make reference for contempt to
this Court under Contempt of Courts Act
1971.
(IV)I also direct the Chief Secretary,
Government of U.P., Lucknow, Principal
Secretary, Home, Government of U.P.
Lucknow, Director General of Police,
U.P., Lucknow and Additional Director
General (Prison), U.P., Lucknow to take
appropriate steps in this regard and issue
necessary directions to all the jail
authorities to ensure presence of all
under-trials before the Court(s) concerned
on
the
date
fixed
for
trial.
(V)Similarly, if any other witness or
complainant is causing delay in trial,
appropriate action must be taken against
him/them also, in the same manner.
22. Registrar General is directed to
serve a copy of this order to the Chief
Secretary, Government of U.P. Lucknow,
Principal Secretary, Home, Government
of U.P., Lucknow, Director General of
Police,
U.P.,
Lucknow,
Additional
Director General (Prison) Government of
U.P.,
Lucknow
for
communication
forthwith.
They
shall
also
submit
compliance report after three months i.e.,
20th January 2015.
23. Let a copy of this order be
circulated to all the Judicial Officers in
the State of U.P. through concerned
District Judges for communication and
compliance.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
First Appeal from Order No. 83 of 2008
The United India Insurance Co. Ltd.
...Appellant
Versus
Smt. Meera Devi & Ors.
..Claimants
Counsel for the Appellant:
Sri Saral Srivastava
Counsel for the Claimants:
Sri S.C. Kesarwani
Motor Vehicle Act, 1988 Section-2 (9)
and 166- Owner of vehicle-driving Tata
Sumo-died
in
accident-Tribunalconsidering difination of 'Driver' as given
under Section 2(9)-held owner being
behind
stearing
is
driver-awarded
compensation-appeal
by
Isnsurance
company as no separate premium paid for
owner-insurance company not liable-heldonce the comprehensive insurance policy
of vehicle there-Rs. 15/ extra paid to
cover the driver-keeping in view of
defination of Driver the owner-driving the
vehicle being behind the stearing-coveres
the personal insurance of owner alsoappeal dismissed.
Held: Para-14 & 15
14. Section 2(9) of the Act defines driver,
which in our view encompasses the owner
also to be the person who is behind the
steering wheel and driving the vehicle. The
cover note of the insurance policy in the
instant case includes the insured and any
other person, who is entitled to drive. The
words used in the insurance policy are as
under:
"Persons or classes of persons entitled to
drive
Any person including insured:"
15. The premium of Rs.15/- was paid for
driver. Nothing has been indicated in the
appeal nor has anything been addressed
by the learned counsel for the appellant
to the effect that personal insurance of
the owner of the vehicle under the
comprehensive policy could invite a
different
premium
other
than
that