# (In Jail) v. State of U.P. & another 726 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

- **Citation:** (2006) 2 ILRA 725
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-05
- **Case number:** Criminal Misc. Transfer Application No. 161 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-another-726-indian-law-reports-allahabad-series-2006-40645
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 408Transfer
of
S.T.
No.
198/02
u/s
302/307/504 I.P.C. with section 7 of
Criminal Law Amendment Act-on the
ground the same Special Judge who
recorded the evidence of six witnesses is
available as IIIrd Addl. Session Judge in
the
same
district-Rejection
on
the
ground of heavy pendancy-held no good
ground-as
evidence
has
already
concluded-fit case for transfer-direction
issued accordingly.

Held: Para 6

The
Sessions
Judge
rejected
the
application on the ground of heavy
pendency. This can not be a ground for
rejecting the Transfer application as
evidence
in
the
case
has
already
concluded and there was nothing much
to be done.
Case law discussed:
1983 (20)-37 Punjab Singh"
1984 ACC-240
2006 SCC-204

## Text

2 All] Azeem V. State of U.P. and another
725

"6.
The
representation
was
immediately processed for consideration
and the case of the detenu was put up
before the Under Secretary, Ministry of
Home Affairs on 06.10.2005. The Under
Secretary carefully considered the case
and put up the same before the OSD (S)
on 06.10.2005. The O.S.C. (S) carefully
considered the same and with his
comments put up the same before the
Joint Secretary, Ministry of Home Affairs
on 06.10.2005. The Joint Secretary
carefully
considered
the
case
and
forwarded the same to the Special
Secretary, Ministry of Home Affairs on
07.10.2005.
The
Special
Secretary
considered the case and forwarded the
same before the Union Home Secretary
on
13.10.2005.
The
Union
Home
Secretary (who has been delegated
powers by the Union Home Minister to
decide such cases) considered the case of
the detenu and rejected the representation
of the detenu on 18.10.2005."

6. It spills beyond comprehension
that the representation sent by the
detaining
authority
through
special
messenger on 27.9.2005 could take seven
days in reaching the concerned desk in the
Ministry of Home Affairs. Further, there
is no explanation as to how the
representation was dealt with on two
days, i.e., 4th and 5th October, 2005. When
the representation from the District
Magistrate,
Noida
through
special
messenger could be received by the State
Government at Lucknow on 28.9.2005, it
would have definitely been delivered in
the Central Government latest by 28th
September 2005. The distance from
Gautam Budh Nagar to the seat of Central
Government
was
also
about
20
kilometers.
The
interval
between
28.9.2005 to 3.10.2005 goes by default by
plausible explanation.

7. The delay was unreasonable with
no explanation. Unexplained delay on the
part of the Central Government in dealing
with the representation of the detenu with
all promptitude vitiates the detention
order.

8. Learned counsel for the petitioner
also argued that all relevant materials, i.e.,
bail applications/bail orders of related
case crimes had not been sent for
consideration
before
the
detaining
authority and as such the detention order
suffers from the vice of non-application of
mind de hors of relevant material. It is not
necessary to dilate on this aspect of the
matter for the reason that the continued
detention of the petitioner is rendered
illegal because of unexplained delay in
decision of his representation by the
Central Government as stated above.

9. In net conclusion, we allow this
writ petition. The continued detention of
the petitioner is rendered illegal. We
direct that the petitioner shall be set at
liberty forthwith if not wanted in any
other connection.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2006

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Transfer Application No.
161 of 2006

Azeem

...Applicant (In Jail)
Versus
State of U.P. & another ...Opposite Party
726 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Applicant:
Sri R.S. Shukla

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 408Transfer
of
S.T.
No.
198/02
u/s
302/307/504 I.P.C. with section 7 of
Criminal Law Amendment Act-on the
ground the same Special Judge who
recorded the evidence of six witnesses is
available as IIIrd Addl. Session Judge in
the
same
district-Rejection
on
the
ground of heavy pendancy-held no good
ground-as
evidence
has
already
concluded-fit case for transfer-direction
issued accordingly.

Held: Para 6

The
Sessions
Judge
rejected
the
application on the ground of heavy
pendency. This can not be a ground for
rejecting the Transfer application as
evidence
in
the
case
has
already
concluded and there was nothing much
to be done.
Case law discussed:
1983 (20)-37 Punjab Singh"
1984 ACC-240
2006 SCC-204

(Delivered by Hon'ble K.N. Sinha, J.)

1. The present transfer application
has been moved on behalf of Azeem who
is an accused in Session Trial No. 198/02,
State
Vs.
Azeem
under
Section
302/207/504 IPC and Section 7 of
Criminal Law Amendment Act, Police
Station Rosa, District Shahjahanpur.

2. The allegations set forth in the
application are that the above noted trial
was pending in the court of Special Judge
(EC Act) Court No. 9, Shahjahanpur,
which was presided over by G.S.
Chandel, who recorded the evidence of
six witnesses. Thereafter Sri Chandel was
posted in the court of Third Additional
Sessions Judge and one Rajveer Sharma
took over in the court of Special Judge
(EC Act) in place of Sri G.S. Chandel.
The contention of learned counsel for
applicant is that as the major part of
evidence was recorded by Sri G.S.
Chandel and he is at the same Sessions
division, i.e. the same district hence the
case should be transferred and tried by Sri
Chandel.

3. He approched the Sessions Judge
for transfer but the prayer was declined
and transfer application was rejected by
order dated 21.3.2006.

4. Learned counsel for the petitioner
has relied upon Punjab Singh Vs. State
of U.P. reported in 1983 (20) page 37 in
which it was held that where whole or
part of the evidence has been recorded by
a particular judge who is available in the
district the case may be transferred to that
court.

5. Learned counsel for the applicant
relied upon Radhey Shyam and another
Vs. State of U.P. reported in 1984 ACC
240 in which it was held that the Sessions
Judge was empowered under Section 408
Cr.P.C. to transfer a part heard appeal
from the court of Additional Sessions
Judge to another Sessions Division, if it
was expedient in the interest of justice
and lastly he also relied upon Abdul
Nazar Madani Vs. State of Tamil Nadu
2006, SCC 204. So far as the case of
Abdul
Nazar
Madani
(Supra)
is
concerned, it was held in this case that the
relevant consideration for transfer should
be the public confidence.
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
727

6. This is not the ground of the
present application. The case of Radhey
Shyam and another Vs. State of U.P.
(Supra) relates about the power of the
Sessions Judge. This is also not the
ground for transfer of the present case. So
far as the case of Punjab Singh (Supra)
is concerned the evidence of six witnesses
was reported by Sri G.S. Chandel when
he ceased to have jurisdiction over that
court. The Sessions Judge rejected the
application on the ground of heavy
pendency. This can not be a ground for
rejecting the Transfer application ----as
evidence
in
the
case
has
already
concluded and there was nothing much to
be done.

7.

Consequently,
the
transfer
application is allowed and it is hereby
directed that the Session Trial No. 198/02,
State
Vs.
Azeem
under
Section
302/307/504 IPC and Section 7 of
Criminal Law Amendment Act, Police
Station Rosa, District Shahjahanpur, be
transferred to the court of Additional
Sessions Judge where Sri G.S. Chandel is
presiding who shall conclude the trial and
decide it according to law.
Application
Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 19512 of 1999
Vice Chancellor, Chandra Shekhar Azad
Krishi
Evam
Prodyogiki
Vishwavidayalaya, Kanpur
...Petitioner
Versus
Presiding Officer Industrial Tribunal (3)
U.P. Kanpur and others ...Respondent

Counsel for the Petitioner:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri Bhupendra Nath Singh
Sri Pradeep Chauhan
S.C.

Constitution
of
India
Act
226Regularisation- Workman engaged on
01.07.80 as Lab Assistant/Attendantworking
continuously-Labour
Court
recorded specific finding juniors to the
workman have been already regularized-
denial of regularization amounts unfair
labour practice finding of facts recorded
by labour court can not be inter fund by
writ court- petition dismissed.

Held-Pra 13 and 15 to be printer

I have heard the learned counsel for the
petitioner and the 'Standing Counsel and
have also perused the record. From the
record it is clear that admittedly the
respondent workman was first time
engaged in the year 1980and is working
continuously. There is no denial by the
employer to this effect. A finding to this
effect has also been recorded by the
Labour
Courtthat
junior
persons
to
respondent
no.2
have
been
made
regular. The Labour Court has also
recorded a finding to this effect that
some daily wagers had approached the
High Court and the High Court has
directed to consider their claim and
various persons on the basis of the order
passed by the High Court have been
regularized. A finding to this effect has
also been recorded by the Labour Court
that from July 1980 to August 1983
respondent no.2 has worked on the post
of Lab. Assistant I Attendant and the
post of Lab Assistant is in the nature of
permanent and from the record it also
appears that there is not break in the
service of respondent no.2. The Court
has a perused the reference. From the
reference it is clear that the Labour