# (In Jail) v. State of U.P

- **Citation:** (2007) 2 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-24
- **Case number:** Criminal Misc. Application No. 555 of 2006
- **Bench:** Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40898
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 407Transfer of Session Trail-on groundstaken
senior
Advocate
in
District
Varanasi is not ready to appear on behalf
of applicant-appointment of Amiecus
Curiae-itself denotes this fact- heldapart from violation of section 302 of the
Code,
there
shall
be
denied
of
fundamental
Rights
of
applicantconferred under Article 21 and 22 (1) of
constitution-case
transferred
from
Session Division Varanasi to session
judge Ghaziabad.

Held: Para 7

The appointing of amicus curiae for
defending the case of the applicant
shows that he was unable to engage any
Advocate in the district of Varanasi as
well as out side of district Varanasi
according to his choice. It appears that
there is violation of provision of Section
302 of the Code-of Criminal Procedure,
1973 as well as the fundamental rights
conferred by Articles 21 and 22(1) of the
Constitution of India, as the applicant is
ready to engage an Advocate of his
choice for doing the Pairvi of his case. In
such
circumstances,
it
will
be
appropriate in the ends of justice that
the above three connected sessions trials
pending in the court of Special Judge
(E.C.Act), Varanasi be transferred to any
other district.
Case law discussed:
2006 (3) SCC(Crl.)-400
2005(8) SCC-771
2004 SCC(Crl.)-999
1974 SCC(Crl.)-59
1973 SCC(Crl.)-349

## Text

2 All] Walliullah V. State of U.P.
409
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2006

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Application No. 555 of 2006

Walliullah

...Appellant (In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellant:
Sri Vinay Saran

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 407Transfer of Session Trail-on groundstaken
senior
Advocate
in
District
Varanasi is not ready to appear on behalf
of applicant-appointment of Amiecus
Curiae-itself denotes this fact- heldapart from violation of section 302 of the
Code,
there
shall
be
denied
of
fundamental
Rights
of
applicantconferred under Article 21 and 22 (1) of
constitution-case
transferred
from
Session Division Varanasi to session
judge Ghaziabad.

Held: Para 7

The appointing of amicus curiae for
defending the case of the applicant
shows that he was unable to engage any
Advocate in the district of Varanasi as
well as out side of district Varanasi
according to his choice. It appears that
there is violation of provision of Section
302 of the Code-of Criminal Procedure,
1973 as well as the fundamental rights
conferred by Articles 21 and 22(1) of the
Constitution of India, as the applicant is
ready to engage an Advocate of his
choice for doing the Pairvi of his case. In
such
circumstances,
it
will
be
appropriate in the ends of justice that
the above three connected sessions trials
pending in the court of Special Judge
(E.C.Act), Varanasi be transferred to any
other district.
Case law discussed:
2006 (3) SCC(Crl.)-400
2005(8) SCC-771
2004 SCC(Crl.)-999
1974 SCC(Crl.)-59
1973 SCC(Crl.)-349

(Delivered by Hon'ble Shiv Shanker, J.)

1. This is a transfer application
moved under Section 407 of the code of
Criminal Procedure on behalf of accusedapplicant Waliullah son of Habibullah
praying to recall three connected Sessions
Trial No. 368 of 2006, under Sections
3/4/5/ Explosive Substance Act; 15/16
Unlawful Activities Prevention Act and
302/307/324/326
IPC,
Police
station
Lanka, district Varanasi, Sessions Trial
No.
400
of
2006,
under
section
302/307/324/326/424/120-B
IPC
and
3/4/5/ Explosive Substance Act, Police
station G.R.P. Cantt, district Varanasi and
Sessions Trial No. 388 of 2006 under
sections 3/4/5/ Explosive Substance Act.
Police station Dashaswamedh, district
Varanasi and transfer to some other court
of sessions outside the court of Sessions,
Varanasi.

2. Heard Sri Vinay Saran, learned
counsel for the applicant and learned
A.G.A. as well as perused the whole
records, including the supplementary
affidavit filed on 22.11. 2006 which was
taken on record.

3. It is contended by the learned
counsel for the applicant that no Advocate
of district Varanasi is available to conduct
the case of the applicant according to his
choice. It was case where the public
sentiment is involved. Therefore, he is
410 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
unable to get lawyer of his choice and
most of the senior lawyers of the city have
refused to appear on behalf of the
applicant
in
the
trial
of
the
aforementioned three cases. It is further
contended that the atmosphere at the
Court of Sessions at Varanasi is very
hostile towards the applicant so much so
that on 21.4.2006, while the applicant
\Vas produced before the court after his
so called arrest, heavy stone pelting was
done by the public and activists of various
organization posing serious threats to the
life of the applicant. Photocopy of newspaper cutting to the effect is available on
record as Annexure-XI to the application.
It is further contended that when the
applicant was again produced in court on
23.4.2006, a mob of lawyers, numbering
in hundreds, gathcrc9 and assaulted the
applicant in court premises itself while,
the administration and police party remain
a silent spectator. Photocopy of newspaper cutting to this effect is available on
record as Annexure-XII to the application.
It is further contended that the atmosphere
of Court of Sessions at Varanasi is so
charged that on 3.10.2006, a resolution
was brought to the Bar Association on a
signature campaign by the local lawyers
that no lawyer would appear on behalf of
the applicant in the aforesaid connected
sessions trials. The true copy of the said
resolution is also available on record as
Annexure-XIII to the application. It is
further contended that the applicant and
his father also brought these facts to the
notice of the Sessions Judge, Varanasi
and, thereafter, the dates in the trials arc
being given inside jail in specially
constituted court. It is also contended that
till dates none of the family members
were allowed to meet the applicant at
Varanasi and it was only when the
applicant was produced at Allahabad in a
previous Sessions Trial No. 872 of 2001,
the
brothers
met
the
applicant
in
Allahabad Court. Therefore, the applicant
is being denied of his legal right of being
defended by the pleader of his choice as
contemplated under Section 303 of the
Code of Criminal Procedure, which is
against Articles 21 and 22(1) of the
Constitution of India. Without his choice,
an Amices Curiae has been appointed to
defend the case of the applicant, which is
also against the provision of Section 303
of the Code of Criminal Procedure. It is
further contended that no lawyers from
out side of Varanasi are ready to go and
conduct the trials at Varanasi on behalf of
the applicant. I t is further contended that
the applicant is inside jail and he does not
have any near relative or friend at
Varanasi who may do Pairvi for him at
Varanasi. The learned counsel for the
applicant has attracted the attention of the
Court on the following decisions of the
Apex Court:-

(1) Ravir Godbole vs. State of M.P.
(2006) 3 Supreme Court Cases (Cri) 400.
(2) Sri Jayendra Saraswathy Swami gal
(II) T.N Vs. State of T.N. and others;
(2005) 8 Supreme Court Cases 771
(3) Zalziura Habibulla H. Sheikh and
another Vs.
State of Gujarat and others 2.004
Supreme Court Cases (Cri) 999
(4) Ranchod Mathur Wasawa vs. State of
Gujarat, 1974 Supreme Court Cases (Cd)
59.
(5) Sesamma Phillip & ETe Vs. P.
Phillip & Etc.
1973 Supreme Court Cases (Cd) 349.

4. On the other hand, it is submitted
by the learned A.G.A. that there will be
difficulty of the prosecution witnesses,
who are fifty five in nwnber in each
2 All] Walliullah V. State of U.P.
411
sessions trial, to go in another district for
giving their evidence. It is further
contended that hearing of the above
sessions trials is being made in Varanasi
Jail as per the orders of the appropriate
authority. In such circumstances, there
will be no danger to the applicant in jail
for doing the Pairvi of the ease. It', is
'further contended that the Advocates of
outside district can also be engaged to do
the Pairvi of his case. The names of the
Advocates have not been disclosed in the
transfer application to whom the Pairokar
of the applicant had met to do the Pairvi
of the above sessions trials. In these
circumstances, the session's trials should
not be transferred merely on the choice of
the applicant and the transfer application
is liable to be rejected.

5.

The incident had alleged
happened in the city of Varanasi at a very
religious place i.e. premises of Sankat
Mochan Mandir by making bomb blast at
three places simultaneously on the same
date and time. Photocopy of news-paper
cutting (Annexure-XI) reveals that heavy
stone pelting was done by the public
upon-the applicant when he was produced
firstly in the court of Varanasi. Similarly,
second time, stone pelting was made as
per Annexure-XII. Therefore, it appears
that after considering the safety of the
applicant, who is facing the above
sessions trials, the trials are being
conducted
inside
the
District
Jail,
Varanasi as per the orders of the
appropriate authority.

Section 303 of the Code of Criminal
Procedure, 1973 is produced as under:-

"303. Any person accused of an
offence before a Criminal Court, or
against whom proceedings are instituted
under this Code, may of right be defended
by a pleader of his choice."

6. The resolutions of Bar, which are
Annexures 12 and SA-1 available on
record,
to
the
application
and
supplementary
affidavit,
reveal
that
resolution
was
made
in
the
Bar
Association for not doing the Pairvi on
behalf of the applicant but doing the
Pairvi of the prosecution free of costs and
fee will be paid from the funds of the Bar
Association of Varanasi. Although such
resolution was deferred in the absence of
adequate quorum. However, no Advocate
has been prepared for defending the case
of the applicant in district Varanasi.
Similarly, no Advocate of the outside of
district is ready to go to Varanasi for
doing the Pairvi of the case of the
applicant.
These
facts
have
been
mentioned
in
the
affidavit
and
supplementary affidavit filed on behalf of
the applicant. No counter affidavit or
supplementary counter affidavit has been
filed on behalf of the State controverting
the facts. In such circumstances, Amicus
Curiae have been appointed by the Court
for doing the Pairvi of the case on behalf
of the applicant. This shows that the
applicant cannot engage an Advocate of
his choice for doing the Pairvi of the case.
It is also the fundamental right of the
citizen as provided in Articles 21 and
22(1) of the Constitution of India which
are quoted as below:-

"21. Protection of life and personal
liberty: - No person shall be deprived of
his life or personal liberty except
according to procedure established by
law.
22.
Protection
against
arrest
and
detention in certain cases:-(1) No person
who is arrested shall. be detained in
412 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
custody without being informed, as soon
as may be, of the grounds for such arrest
nor shall he be denied the right to
consult, and to be defended by, a legal
practioner of his choice."

7. It is important to note here that
justice not only be done but appears to be
done. The appointing of amicus curiae for
defending the case of the applicant shows
that he was unable to engage any
Advocate in the district of Varanasi as
well as out side of district Varanasi
according to his choice. It appears that
there is violation of provision of Section
302 of the Code-of Criminal Procedure,
1973 as well as the fundamental rights
conferred by Articles 21 and 22(1) of the
Constitution of India, as the applicant is
ready to engage an Advocate of his choice
for doing the Pairvi of his case. In such
circumstances, it will be appropriate in
the ends of justice that the above three
connected sessions trials pending in the
court
of
Special
Judge
(E.C.Act),
Varanasi be transferred to any other
district.

8. It is worthwhile to mention here
that about fifty five prosecution witnesses
in each sessions trial, aforementioned, are
to be produced for their examinations.
The applicant is resident of district
Allahabad and it will not be appropriate to
transfer the cases from Varanasi Sessions
Division to nearby Sessions Division of
districts. In the circumstances, in my
view, it will be justified in the interest of
justice that the aforementioned sessions
trials be transferred to the Sessions
Division, Ghaziabad as there will be no
problem for engaging the counsel by the
applicant of his choice of Ghaziabador
nearby districts or New Delhi for
conducting his trials fairly.
9. After considering the facts and
circumstances
of
the
case
and
submissions made on behalf of both the
parties, this transfer application is liable
to be allowed.

10. Consequently, the transfer
application is hereby allowed and the L
aforementioned three connected sessions
trials, pending in the court of Special
Judge (E.C. Act), Varanasi are hereby
recalled and transferred to the court of
Sessions Judge, Ghaziabad for trial. The
Sessions Judge, Gbaziabad is specially
directed to conduct the trial of the
aforementioned sessions trials himself
according to law.
Transfer application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2007

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Review Application No. 63852
of 2006

Chandra Bhan and others ...Petitioners
Versus
Deputy
Director,
Consolidation
and
others

...Respondents

Counsel for the Petitioners:
Sri. S.N. Tripathi

Counsel for the Respondents:
Sri. Sanjay Goswami
S.C.

Constitution of India Article-226- Power
to
decide
the
revenue
cases-by
administrative
officer-cannot
be
equipped with qualification of law-High
Court following the decision of Apex
Court-issued Mandamus to create a
separate
judicial
cadre-cannot
be