# Jalveer & Ors v. State of U.P. & Anr

- **Citation:** (2019) 2 ILRA 2269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Transfer Application (Criminal) No. 378 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jalveer-ors-v-state-of-u-p-anr-44722
- **Pages:** 5

## Headnote

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged
Senior Counsel for defence, has sought
an adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This
date was given to him. On that particular
date, none of the accused appeared nor
the counsel appeared, which compelled
the court for issuing warrants against
the accused persons and this was made a
2270 INDIAN LAW REPORTS ALLAHABAD SERIES
ground for Transfer Application, moved
before the court of Sessions Judge, but
nowhere it was mentioned in the said
Transfer Application that there had been a
direction by this Court for expeditious
disposal of above Sessions Trial, that too,
in a time bound frame. This has neither
been mentioned before the court of
Sessions Judge, Agra, nor before this
Court, in this Transfer Application, which
itself goes to show modus and intention of
the accused-applicants, who have filed this
Transfer Application, to get the trial
delayed, by getting it transferred from the
court where it is likely to be decided in
near future. (Para 7, 8 ,10, 11 & 12)

Transfer Application (Crl.) rejected (E-6)

List of Cases Cited: -

## Text

2 All. Jalveer & Ors. Vs State of U.P. & Anr.
2269
called to appear before criminal court as
an accused is serious matter affecting
one's dignity, self respect and image in
society. Hence, the process of criminal
court shall not be made a weapon of
harassment.

25. Having gone through the order
passed by the Special Judge, I am
satisfied that there is no indication on the
application of mind by the learned Special
Judge while issuing process to the
Appellants. The allegations made in the
complaint were patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the appellants. The contention that
the application of mind has to be inferred
from the fact and circumstances of the
case cannot be appreciated. Though no
lengthy formal order is required at the
stage of Section 204 Code of Criminal
Procedure, there must be sufficient
indication, in the summoning order, with
regard to the application of mind by the
trial court to the facts constituting
commission of the offence and the
statements recorded Under Section 200
and 202 of Code of Criminal Procedure so
as to assess sufficiency to proceed against
the offender. No doubt the veracity of the
allegations is a question of evidence but
here the question is not about veracity of
the allegations only, but whether those
who are being summoned to face trial, are
answerable at all before the criminal
court. There is no indication in that regard
in the summoning order passed by the
learned Special Judge. The summoning
order dated 29.3.2019 passed by the
special Court has been passed in utter
disregard to the law laid down in the
above mentioned cases and therefore the
same could not be allowed to stand.

26. Resultantly the Appeal filed by
the appellants suceeds and is Allowed and
the order dated 29.3.2019 passed by the
Special Judge SC/ST Act (Prevention of
Atrocities), Act, Bahraich in Criminal
Case No. 46 of 2019 is set aside.
----------

(2019)10ILR A 2269

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Transfer Application (Criminal) No. 378 of 2019

Jalveer & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Kuldeep Singh Chahar

Counsel for the Opposite Parties:
G.A., Sri M.L. Jain

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged
Senior Counsel for defence, has sought
an adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This
date was given to him. On that particular
date, none of the accused appeared nor
the counsel appeared, which compelled
the court for issuing warrants against
the accused persons and this was made a
2270 INDIAN LAW REPORTS ALLAHABAD SERIES
ground for Transfer Application, moved
before the court of Sessions Judge, but
nowhere it was mentioned in the said
Transfer Application that there had been a
direction by this Court for expeditious
disposal of above Sessions Trial, that too,
in a time bound frame. This has neither
been mentioned before the court of
Sessions Judge, Agra, nor before this
Court, in this Transfer Application, which
itself goes to show modus and intention of
the accused-applicants, who have filed this
Transfer Application, to get the trial
delayed, by getting it transferred from the
court where it is likely to be decided in
near future. (Para 7, 8 ,10, 11 & 12)

Transfer Application (Crl.) rejected (E-6)

List of Cases Cited: -

1. St. of Bihar Vs Hemlal Sah 2014 Crl. L.J.
1767

2. St. of Mah. Vs Ramdas Shrinivas Nayak AIR
1982 SC 1249 at page 1251

(Per Lord Atinkson in Somasundaram Chetty
Vs Subramanian Chetty AIR 1926 PC 136)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Transfer Application, under
Section 407 of Criminal Procedure Code
(Hereinafter, in short, referred to as
''Cr.P.C.'), has been filed by the accusedapplicants, Jalveer and five others, against
State of U.P. and Opposite party no.2,
Geetam
Singh,
with
a
prayer
for
transferring Sessions Trial No. 643 of
2014 (State Vs. Jalveer and others),
arising out of Case Crime No. 286/2014,
under Sections 147, 148, 149, 302 and
506 of Indian Penal Code, Police StationFatehpur Sikri, District Agra, from the
court of Additional Sessions Judge, Court
no.9, Agra, with a contention that this first
Criminal
Miscellaneous
Transfer
Application is being filed before this
Court and prior to it the same was filed
before the court of Sessions Judge, Agra,
which was rejected by the Sessions Judge,
Agra.

2. A first information report was
lodged at Police Station-Fatehpur Sikri on
30.5.2014, against these accused persons
with
an
allegation
of
murder
of
Bhupendra by the accused-applicants,
whereas in autopsy examination report,
there was only injury at the chest, within
blackening and tattooing, around it.
Investigation resulted in submission of
chargesheet against Jalveer and Sahab
Singh,
alongwith
Ghamandi,
as
a
proclaimed offender. After committal of
the case, charges were framed against
Jalveer and Sahab Singh, thenafter, an
application, under Section 319 of Cr.P.C.,
dated 26.10.2015, with a prayer for
summoning Dhirendra, Ravindra and
Satendra, was moved. Sahab Singh, on
18.9.2014 and Jalveer, on 23.9.2014, were
released on bail. Dhirendra, Ravindra and
Satendra were also released on bail by
this Court. Ghamandi is in Jail since
5.9.2015. Trial proceeded before the
Additional Sessions Judge, Court No.9,
Agra. It was scheduled on 4.5.219, when
date 30.5.2019 was fixed and signature of
accused were taken over blank papers. An
oral statement for judgment, to be
delivered on 30.5.2019, was narrated,
whereas on 30.5.2019, only one hour was
given for arguments in the case. The date
was manipulated and written to be
15.5.2019,
which
was
not
in
the
knowledge of the accused persons, then
30.5.2019 was fixed, but warrant was
issued against accused-applicants. Recall
application was moved and date 4.7.2019
was fixed. Hence, neither opportunity for
2 All. Jalveer & Ors. Vs State of U.P. & Anr.
2271
argument was given nor it was heard,
rather complainant-Opposite party no.2
was seen coming out of the chamber of
the Presiding Judge. Transfer Application
No.586 of 2019 was filed before the court
of Sessions Judge, Agra, for transferring
above case on which comment of the
concerned presiding Judge was called for,
who, in his comments expressed no
objection over it, even then said Transfer
Application was rejected, vide order dated
26.7.2019.
Thus,
this
Transfer
Application, with above prayer.

3. Learned counsel for the applicants
argued that he has no objection in case
file of Sessions Trial is being transferred
to some other court, having competent
jurisdiction, with grant of single date for
argument over trial. Hence, a request for
allowing this Transfer Application has
been made.

4. Learned AGA, appearing for the
State of U.P., has vehemently opposed
this Transfer Application.

5. Sri M.L. Jain, learned counsel
appearing for the victim, Smt. Nemwati, wife
of the deceased, has argued that it is a case of
murder, committed by the accused persons,
in which there is a direction for time bound
disposal of the trial, given in Crl. Misc. Bail
Application No. 23065 of 2017, in the order
dated 9.4.2018, but the accused persons are
not permitting for disposal of this trial and
with an ulterior motive, this Transfer
Application, on baseless ground, has been
moved.

6. Heard learned counsel for the
parties and perused materials on record.

7. Perusal of the order, passed by the
learned Sessions Judge, Agra, reveals that
allegations levelled against the Presiding
Judge, concerned, was that a manipulation
in date was made, warrant was issued,
complainant was seen coming out from
the chamber of the Presiding Judge and
there is a narration of complainant in
evidence that he will get accused persons
convicted.

8. Comment of the Presiding Judge,
filed before the learned Sessions Judge,
Agra, reveals that there had been a
direction for time bound disposal of above
Sessions Trial, in which Ghamandi is
under trial and it was a date of argument,
which was a part heard argument case.
When none of the accused persons
appeared, it resulted in issuance of
bailable warrant against them and this was
subsequently acted upon by enlarging
them on bail on Personal Bond. Learned
counsel for accused persons did not argue
on the date fixed in the court, rather a new
Vakalatnama
of
Haridutt
Sharma,
Advocate, was filed, with an assurance for
getting the case argued on the next date.
On this assurance, learned Trial Judge
adjourned the case for argument to
30.5.2019, but no argument was advanced
on that date too. Neither accused persons'
counsel nor accused persons appeared,
which compelled learned Trial judge to
issue bailable warrant. So far as allegation
of coming out of Opposite party no.2
from the chamber of the Presiding Judge
is
concerned,
the
same
has
been
vehemently opposed by the Presiding
Judge.

9. Learned Sessions Judge, found
Transfer Application with no substance,
hence rejected the same.

10. Alleged manipulation in the
ordersheet is not being substantiated by
2272 INDIAN LAW REPORTS ALLAHABAD SERIES
the counsel. It is undisputed that there was
a direction for time bound disposal of the
Sessions Trial of under trial accused and
the court was endeavouring for getting
same complied with and the Transfer
Application was moved before the court
of Sessions Judge, Agra, even in defiance
of assurance given by learned counsel for
defence, who was subsequently engaged
on 4.5.2019, that he would argue the case
on the next date fixed.

11. Apex Court in the case of State
of Bihar vs. Hemlal Sah, reported in
2014, Crl. L.J., 1767, while referring a
judgment of Apex Court, rendered in the
case of State of Maharashtra vs.
Ramdas Shrinivas Nayak, reported in
AIR 1982, SC, 1249, at page 1251, has
propounded that matters of judicial
records are unquestionable. They are not
open to doubt. Judges cannot be dragged
into the arena "Judgments cannot be
treated as mere counters in the game of
litigation." (Per Lord Atinkson in
Somasundaram
Chetty
Vs.
Subramanian Chetty, AIR 1926, PC
136), has propounded "We are bound to
accept the statement of the Judges
recorded in their judgments, as to what
transpired in Court. We cannot allow the
statement of the Judges to be contradicted
by statements at the Bar or by affidavit or
other evidences. If the Judges say in their
judgment that something was done, said
or admitted before them, that has to be
last word on the subject. The principle is
well-settled that statements of fact as to
what transpired at the hearing, recorded in
the judgment of the court, are conclusive
of the facts, so stated, and no one can
contradict such statements by affidavit or
other evidence. If a party thinks that the
happenings in the court have been
wrongly recorded in a judgment, it is
incumbent upon the party, while the
matter is still fresh in the minds of the
Judges, to call attention of the very
Judges, who have made the record to the
fact that the statement made with regard
to his conduct was a statement that had
been made in error. That is the only way
to have record corrected. If no such step is
taken, the matter must necessarily end
there".

12. In present case, in the ordersheet, it
has been specifically mentioned by the Trial
Judge that Sri Hari Dutt Sharma, newly
engaged Senior Counsel for defence, has
sought an adjournment of the case and given
an assurance that he will argue the case on the
only date requested by him. This date was
given to him. On that particular date, none of
the accused appeared nor the counsel
appeared, which compelled the court for
issuing warrants against the accused persons
and this was made a ground for Transfer
Application, moved before the court of
Sessions Judge, Agra, but nowhere it was
mentioned in the said Transfer Application
that there had been a direction by this Court
for expeditious disposal of above Sessions
Trial, that too, in a time bound frame. This has
neither been mentioned before the court of
Sessions Judge, Agra, nor before this Court, in
this Transfer Application, which itself goes to
show modus and intention of the accusedapplicants, who have filed this Transfer
Application, to get the trial delayed, by getting
it transferred from the court where it is likely
to be decided in near future.

13. Under all above facts and
circumstances, there is no ground for
transferring this Sessions Trial from the
court of Additional Sessions Judge, Court
No.9,
Agra.
Hence,
this
Transfer
Application is being rejected, with a
direction and advise to learned counsel,
2 All. Jalveer & Ors. Vs State of U.P. & Anr.
2273
who has filed this Transfer Application, to
come to the Court with clean hands and to
remain careful in future, while presenting
any
Transfer
Application,
with
mentioning
correct
facts
and
circumstances before the Court.

14. In view of what has been
discussed
above,
this
Transfer
Application, being devoid of merits,
stands rejected.
----------