# Manju Bansal & Ors v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-21
- **Case number:** Crl. Misc. Transfer Appl. No. 286 of 2022
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manju-bansal-ors-v-state-of-u-p-anr-50072
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 407 - Indian Penal
Code, 1860-Sections 498-A, 323, 504,
506, 307, 120-B - Section 3/4 Dowry
Prohibition Act -the marriage of applicant
and opposite party was solemnized two
years ago and the allegations are that the
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1037
applicant used to beat the opposite party
for money- the dispute is of between
husband and wife-The opposite party
along with her daughter had gone to her
parents' house and was living there.-She
had given a written letter stating therein
that she was not being physically hurt that
is why she did not go for her medical
examination, therefore, it appears that
neither
applicant
nor
opposite
party
received any injury- Thus, the applicant
failed to show any sufficient cause for
transferring the Sessions Trial- mere
allegations that there is apprehension that
justice will not be done in a given case
does not suffice- Mere suspicion by the
party that he will not get justice would
not justify transfer.-There must be a
reasonable apprehension to that effect- A
judicial
order
made
by
a
Judge
legitimately cannot be made foundation
for a transfer of case-Mere presumption of
possible apprehension should not and
ought not be the basis of transfer of any
case from one case to another-It is only in
very special circumstances, when such
grounds are taken, the Court must find
reasons exist to transfer a case, not
otherwise.(Para 1 to 16)

B. For a transfer of a criminal case, there
must be a reasonable apprehension on the
part of the party to a case that justice will
not be done. It is one of the principles of
administration of justice that justice
should not only be done but it should be
seen to be done. On the other hand, mere
allegations that there is apprehension that
justice will not be done in a given case
does not suffice. In other words, the court
has further to see whether apprehension
alleged is a reasonable or not. The
apprehension
must
not
only
be
entertained but must appear to the court
to be a reasonable apprehension. Seeking
transfer
at
the
drop
of
a
hat
is
inconceivable. An order of transfer is not
to be passed as a matter of routine or
merely because an interested party has
expressed
some
apprehension
about
proper conduct of the trial. The power has
to
be
exercised
cautiously
and
in
exceptional situations, where it becomes
necessary to do so to provide credibility to
the
trial.
There
has
to
be
a
real
apprehension
that
there
would
be
miscarriage of justice. (Para 13)

The transfer application is rejected. (E-6)

List of Cases cited:

## Text

1036 INDIAN LAW REPORTS ALLAHABAD SERIES

22. It is well settled that it is neither
feasible nor desirable to lay down an
abstract formula to determine the age of a
person. The date of birth is to be
determined on the basis of material on
record and on appreciation of evidence
adduced by the parties. The medical
evidence as to the age of a person, though
a very useful guiding factor, is not
conclusive and has to be considered along
with other cogent evidence.

27. The benefit of the principle of
benevolent legislation attached to the JJ
Act would thus apply to only such cases
wherein the accused is held to be a juvenile
on the basis of at least prima facie evidence
regarding his minority as the benefit of the
possibilities of two views in regard to the
age of the alleged accused who is involved
in grave and serious offence which he
committed and gave effect to it in a wellplanned manner reflecting his maturity of
mind rather than innocence indicating that
his plea of juvenility is more in the nature
of a shield to dodge or dupe the arms of
law, cannot be allowed to come to his
rescue." [Emphasis added] From the above
decision, it is clear that the purpose of
Juvenile Justice Act, 2000 is not to give
shelter to the accused of grave and heinous
offences."

12. Since in this matter the proper
inquiry has been done by the Juvenile
Justice Board and the Juvenile Justice
Board has rightly concluded that the date of
birth of the revisionist is 6.3.2003.
Presently as per conclusion of the Juvenile
Justice Board, age of the revisionist is more
than 20 years. If the statement of PW-1 is
accepted as true, then the age of the
revisionist is 23 years.

13. Keeping in view the above ruling
of the Apex Court in Mukarrab Etc (supra)
that when the revisionist has attained
majority, then at this stage exact age could
not be determined. So the learned Juvenile
Justice
Board
determined
the
age
considering
the
material
facts
and
circumstances. Even at this stage, the
medical board could not determine the
exact age of the revisionist conflict with
law. So in this matter, there is no reason to
disbelieve the conclusion arrived by the
Juvenile
Justice
Board.
Thus,
the
conclusion arrived by the appellate court is
erroneous.

14. Consequently, the present revision
is hereby allowed and the impugned order
dated 31.7.2019 passed by the appellate
court is hereby set aside.
----------
(2023) 5 ILRA 1036
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Crl. Misc. Transfer Appl. No. 286 of 2022

Manju Bansal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Prateek Kumar Srivastava, Sri Ritukar Gupta,
Sri V.P. Srivastava(Sr. Advocate)

Counsel for the Respondents:
G.A., Sri Raj Kumar Kesari

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 407 - Indian Penal
Code, 1860-Sections 498-A, 323, 504,
506, 307, 120-B - Section 3/4 Dowry
Prohibition Act -the marriage of applicant
and opposite party was solemnized two
years ago and the allegations are that the
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1037
applicant used to beat the opposite party
for money- the dispute is of between
husband and wife-The opposite party
along with her daughter had gone to her
parents' house and was living there.-She
had given a written letter stating therein
that she was not being physically hurt that
is why she did not go for her medical
examination, therefore, it appears that
neither
applicant
nor
opposite
party
received any injury- Thus, the applicant
failed to show any sufficient cause for
transferring the Sessions Trial- mere
allegations that there is apprehension that
justice will not be done in a given case
does not suffice- Mere suspicion by the
party that he will not get justice would
not justify transfer.-There must be a
reasonable apprehension to that effect- A
judicial
order
made
by
a
Judge
legitimately cannot be made foundation
for a transfer of case-Mere presumption of
possible apprehension should not and
ought not be the basis of transfer of any
case from one case to another-It is only in
very special circumstances, when such
grounds are taken, the Court must find
reasons exist to transfer a case, not
otherwise.(Para 1 to 16)

B. For a transfer of a criminal case, there
must be a reasonable apprehension on the
part of the party to a case that justice will
not be done. It is one of the principles of
administration of justice that justice
should not only be done but it should be
seen to be done. On the other hand, mere
allegations that there is apprehension that
justice will not be done in a given case
does not suffice. In other words, the court
has further to see whether apprehension
alleged is a reasonable or not. The
apprehension
must
not
only
be
entertained but must appear to the court
to be a reasonable apprehension. Seeking
transfer
at
the
drop
of
a
hat
is
inconceivable. An order of transfer is not
to be passed as a matter of routine or
merely because an interested party has
expressed
some
apprehension
about
proper conduct of the trial. The power has
to
be
exercised
cautiously
and
in
exceptional situations, where it becomes
necessary to do so to provide credibility to
the
trial.
There
has
to
be
a
real
apprehension
that
there
would
be
miscarriage of justice. (Para 13)

The transfer application is rejected. (E-6)

List of Cases cited:

1. Gurcharan Dass Chadha Vs St. of Raj.(1966)
AIR SC 1418

2. Vijay Pal & Ors Vs St. of Har. & anr. (1999) 9
SCC 67

3. Anjali Ashok Sadhwani Vs Ashok Kishinchand
Sadhwani (2009) AIR SC 1374

4. Fatema Vs Jafri Syed Husain @ Syed Parvez
Jafferi (2009) AIR SC 1773

5. Maneka Sanjay Gandhi Vs Rani Jethmalani
(1979) 4 SCC 167

6. Abdul Nazar Madani Vs St. of T.N. (2000) 6
SCC 204

7. K.P. Tiwari Vs St. of M.P. (1994) SCC (Cri)
712

8. K. Anbazhagan Vs S.P. (2004) 3 SCC 767

9. Zahira Habibulla H. Sheikh Vs St. of Guj.
(2004) 4 SCC 158

10. Captain Amarinder Singh Vs Parkash Singh
Badal & ors. (2009) 6 SCC 260

11. Nahar Singh Yadav & anr. Vs U.O.I. & ors. JT
(2010) 12 641

12. Lalu Prasad Vs St. of Jharkhand (2013) 8
SCC 593

13. Amit Agarwal Vs Atul Gupta (2014) 11 ADJ
414 (All.)

14. Usmangani Adambhai Vahora Vs St. of Guj.
& anr. (2016) 3 SCC 370

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri V.P. Srivastava, learned
Senior Counsel assisted by Sri Ritukar
Gupta, learned counsel for the applicant,
learned A.G.A. for the State as well as Sri
Raj Kumar Kesari, learned counsel for the
opposite party no.2 and perused the record.

2. The present application has been
moved by the accused-applicant Sahib
Bansal (husband) under Section 407 of the
Code of Criminal Procedure, 1973 seeking
transfer of entire proceedings of Sessions
Trial No.19 of 2020 (State Vs. Manju
Bansal and others), arising out of Case
Crime No.567 of 2018, under Sections
498A, 504, 506, 307, 120B I.P.C. and
Section 3/4 of Dowry Prohibition Act,
Police Station- Pilakhuva, District Hapur,
pending in the court of Additional District
& Sessions Judge/Fast Track Court, Court
No.1, Hapur to any other court of
competent jurisdiction of another District.

3. Succinctly, the applicant's case is
that the opposite party no.2- Shivangi
Bansal has lodged an F.I.R. against the
applicant
and
his
family
members
registered as Case Crime No.567 of 2018,
under Sections 498A, 504, 506, 307, 120B
I.P.C. and Section 3/4 of Dowry Prohibition
Act, Police Station- Pilakhuva, District
Hapur, which is registered as Sessions Trial
No.19 of 2020 (State Vs. Manju Bansal and
others).

4. It is submitted by learned Senior
Counsel that the marriage of the applicant
Sahib Bansal was solemnized with opposite
party no.2- Shivangi Bansal on 5.12.215
without demand of any dowry and after
sometime the dispute arose between
husband and wife. It is further submitted
that the parents of the applicant got the
applicant and opposite party no.2 separated
from them and shifted them in a rented
house in New Delhi. It is further submitted
that the disputes between applicant and
opposite party no.2 could not be cured and
under some misconception, a false and
frivolous F.I.R. was lodged by opposite
party no.2 against the applicant and his
family members on 22.10.2018 for the
offences punishable under Sections 498A,
323, 504, 506, 307, 376, 511, 120B, 377,
313, 342 I.P.C. and Section 3/4 of Dowry
Prohibition Act, which was registered as
Case Crime No.567 of 2018 at Police
Station Pilakhuva, District Hapur.

5. It is further submitted that as a
matter of fact before lodging the aforesaid
F.I.R., the opposite party no.2 has made a
call to the police of Police Station Subhas
Place, North West, Delhi on 4.10.2018 in
the morning from the house where she was
living with her husband at New Delhi with
the allegation that her husband was beating
her. It is further submitted that the aforesaid
complaint was inquired into and it was
found that the marriage of applicant and
opposite party no.2 was solemnized two
years ago and the allegations are that the
applicant used to beat the opposite party
no.2 for money. It is further submitted that
the applicant and opposite party no.2 were
examined and it was found that the dispute
is of between husband and wife. The
opposite party no.2 along with her daughter
had gone to her parents' house and was
living there. She had given a written letter
stating therein that she was not being
physically hurt that is why she did not go
for her medical examination, therefore, it
appears that neither applicant nor opposite
party no.2 received any injury. It is further
submitted that the first information report
was lodged against Mukesh Bansal (fatherin-law), Manju Bansal (mother-in-law),
Sahib Bansal (husband), Chirag Bansal
(Devar) and Shipra Jain (sister-in-law), but
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1039
during investigation it was found that
Chirag Bansal and Shipra Jain were falsely
been implicated in the case and the chargesheet against the applicant was submitted
for offences punishable under Sections
498A, 323, 504, 506, 307 I.P.C. and
Section 3/4 of D.P. Act. It is further
submitted that against the aforesaid F.I.R., a
Criminal Misc. Writ Petition No.31131 of
2018 was filed before this Court, whereby
the arrest of accused Chirag Bansal and
Shipra Jain was stayed till submission of
charge-sheet and the remaining accused
were directed to appear before the court
below and apply for their bail. It is further
submitted that against the order of this
Court dated 2.11.2018 passed in Criminal
Misc. Writ Petition No.31131 of 2018, the
applicant preferred S.L.P. No.9714 of 2018
before
Hon'ble
the
Supreme
Court,
whereby
an
order
was
passed
on
15.11.2018 directing that no coercive
measure
will
be
taken
against
the
applicants and the notice was issued to the
opposite party no.2.

6. It is further submitted that vide
order dated 4.1.2019, Hon'ble Supreme
Court has directed the parties to explore the
possibility of settlement and on 21.1.2019
it was apprised to the Hon'ble Supreme
Court that there is no chance of any
settlement
between
the
parties,
and
therefore, the matter was proceeded further
and the aforesaid S.L.P. was dismissed with
a direction to the applicant to appear before
the court below. It is further submitted that
the father-in-law of the opposite party no.2
had applied for his bail before the court
below, but the same was rejected and
thereafter, he approached this Court by way
of
Criminal
Misc.
Bail
Application
No.42691 of 2019 and was granted bail
vide order dated 24.10.2019. It is next
submitted that after submission of chargesheet, it was challenged before this Court
by moving Criminal Misc. Application
No.4270 of 2020 and this Court by order
dated 17.2.2020 referred the matter for
mediation. It is further submitted that the
applicant has also approached this Court by
way
of
Criminal
Misc.
Application
No.7475 of 2020, whereby the matter was
referred for mediation by connecting it with
Criminal Misc. Application No.4270 of
2020. It is further submitted that opposite
party no.2 has initiated the proceedings of
Complaint Case No.248 of 2019 (Shivangi
Bansal Vs. Sahib Bansal and others), under
Section 12 of the Protection of Women
from Domestic Violence Act. Thereafter,
the applicant has also approached this
Court by filing Criminal Misc. Application
No.16418 of 2020 and this case was also
clubbed with Criminal Misc. Application
No.7475 of 2020 and interim order was
continued. It is further submitted that the
opposite party no.2 has also lodged a
Complaint Case No.3692 of 2020 under
Section 406 I.P.C., which was rejected by
the court of learned Magistrate vide order
dated 21.1.2021 against all the accused
except the accused Sahib Bansal. It is
further submitted that against the order of
learned Magistrate dated 21.1.2021, the
opposite party no.2 has filed a revision in
the court of Sessions Judge, Hapur, which too
was dismissed vide order dated 2.8.2021. It is
further submitted that the opposite party no.2
has challenged the order of Sessions Judge
dated 2.8.2021 before this Court by filing
petition under Article 227 of the Constitution
of India, which is still pending. It is further
submitted that when the mother-in-law of
opposite party no.2 was exonerated from the
offence punishable under Section 307 I.P.C.,
the opposite party no.2 moved an application
under Section 319 Cr.P.C. on 10.1.2020,
which was also dismissed vide order dated
27.2.2020.
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is further submitted that on
4.10.2018, the opposite party no.2 made a
call to the applicant (husband) and
demanded Rs.5 crores. It is further
submitted that as per allegations of
opposite party no.2, Rs.7 crores were
incurred in their marriage by her father,
which is false because neither she nor her
father was in a position to incur such huge
amount in the marriage. It is further
submitted that on 24.8.2021, the applicant
and his parents moved an application
seeking their discharge under Section 227
Cr.P.C., which was rejected by learned
Additional District & Sessions Judge/Fast
Track Court No.1, Hapur vide order dated
24.8.2021.

8. It is further submitted that the
applicant is resident of Pitampura, Delhi
and the proceedings of the case is going on
before the court of Additional District &
Sessions Judge/Fast Track Court No.1 at
Hapur and whenever the applicant goes to
do pairvi in the case at Hapur, the opposite
party no.2 along with her associates gives
threat to life. It is next submitted that
whenever the matter is taken up in the
court, not only the opposite party no.2 but
also as many as five advocates engaged by
her creates hue and cry for being passed
adverse orders against the applicant. It is
further submitted that on 9.8.2019, the
applicant and his parents were assaulted by
Rajesh Goel, Gaurav Goel, Ankur Goel,
Subhas and one another person regarding
which an F.I.R. was lodged, which was
registered as Case Crime No.402 of 2019,
under Sections 323, 504, 506, 294 I.P.C. at
Police Station Pilakhuva, District Hapur. It
is further submitted that on 25.11.2019, the
applicant moved an application to the
Superintendent of Police, Hapur regarding
apprehension of threat to life at the behest
of family members of opposite party no.2.
It is further submitted that on 3.3.2022, the
applicant no.2 moved an application stating
therein that one Advocate of Sessions
Division, Hapur namely Satish Chandra @
Satish Kumar Mittal has taken entire fee,
but he is not attending his case and also
gives threat to the applicant not to pursue
the case. It is further submitted that
aforesaid advocate managed to lodge an
application under Section 156(3) Cr.P.C.
through his colleague Vijay Pal Singh
Gautam, Advocate, which was directed to
be registered as complaint case vide order
dated 19.8.2020. Thereafter, the aforesaid
complaint was dismissed for want of
prosecution vide order dated 11.12.2020
passed by Additional District Judge/Special
Judge (SC/ST Act), Hapur. It is further
submitted that the aforesaid Advocate
namely Satish Chandra has again lodged a
first
information
report
against
the
applicant and his parents, which was
registered as Case Crime No.18 of 2022,
under Sections 420, 406, 467, 468, 506,
120B I.P.C., Police Station- Hapur Nagar,
Hapur. It is next submitted that in the
aforesaid facts and circumstances, the
applicant has no hope of justice from the
present court and if the aforesaid case is
permitted to be continued in the court of
Additional District & Sessions Judge/Fast
Track Court No.1, Hapur, the applicant
shall suffer irreparable loss.

9. Learned A.G.A. for the State as
well as learned counsel for the opposite
party no.2 have opposed the application
and have submitted that the present
application has been moved with ulterior
motive to delay the trial. It is further
submitted that the present application has
been moved on the basis of wrong facts. It
is further submitted that the opposite party
no.2 is a lady and is living along with her
daughter at Hapur and if the case is
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1041
transferred to any other district, it will
cause undue hardship to her, therefore, the
application seeking transfer of the aforesaid
case deserves to be rejected.

10. The applicant is originally
resident of 44 Kapil Vihar, Pitampura,
North West, Delhi.

11. The instant transfer application
has been moved by applicant Sahib Bansal
under Section 407 Cr.P.C., which deals
with transfer of criminal cases by High
Court from one district to other district or
from one court to another court in the same
district. A resume of Section 407 Cr.P.C.
may be mentioned as under:-

12. Here it is apposite to mention that
in view of sub-section (1) of Section 407
Cr.P.C. a case can be transferred, whenever
it is made to appear to High Court-

407. Power of High Court to transfer
cases and appeals.
(1) Whenever it is made to appear to the
High Court-

(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,

It may order-

(i) that any offence be inquired into or
tried by any Court not qualified under
sections 177 to 185 (both inclusive), but in
other respects competent to inquire into or
try such offence;

(ii) that any particular case or appeal,
or class of cases or appeals, be transferred
from a Criminal Court subordinate to its
authority to any other such Criminal Court
of equal or superior jurisdiction;

(iii) that any particular case be
committed for trial to a Court of Session;
or

(iv) that any particular case or appeal
be transferred to and tried before itself.

(v) The High Court may act either on
the report of the lower Court, or on the
application of a party interested, or on its
own initiative: Provided that no application
shall lie to the High Court for transferring
a case from one Criminal Court to another
Criminal Court in the same sessions
division, unless an application for such
transfer has been made to the Sessions
Judge and rejected by him.

(3) Every application for an order
under sub- section (1) shall be made by
motion, which shall, except when the
applicant is the Advocate- General of the
State,
be
supported
by
affidavit
or
affirmation.

(4) When such application is made by
an accused person, the High Court may
direct him to execute a bond, with or
without sureties, for the payment of any
compensation which the High Court may
award under sub- section (7).

(5) Every accused person making such
application shall give to the Public
Prosecutor notice in writing of the
application, together with copy of the
grounds on which it is made; and no order
shall be made on of the merits of the
application unless at least twenty- four
hours have elapsed between the giving of
such notice and the hearing of the
application.

(6) Where the application is for the
transfer of a case or appeal from any
subordinate Court, the High Court may, if
it is satisfied that it is necessary so to do in
the interests of justice, order that, pending
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
the disposal of the application, the
proceedings in the subordinate Court shall
be stayed, on such terms as the High Court
may think fit to impose: Provided that such
stay shall not affect the subordinate Court'
s power of remand under section 309.

(7) Where an application for an order
under sub- section (1) is dismissed, the
High Court may, if it is of opinion that the
application was frivolous or vexatious,
order the applicant to pay by way of
compensation to any person who has
opposed the application such sum not
exceeding one thousand rupees as it may
consider proper in the circumstances of the
case.

(8) When the High Court orders under
sub- section (1) that a case be transferred
from any Court for trial before itself, it
shall observe in such trial the same
procedure which that Court would have
observed if the case had not been so
transferred.

(9) Nothing in this section shall be
deemed to affect any order of Government
under section 197.

13. There is plethora of cases wherein
the Apex court has on several occasions
considered the issue of transfer of cases, in
different circumstances and after elaborate
discussion
with
reference
to
the
circumstances of each case laid down
guidelines in this behalf, which are cited as
under:-

(i) Gurcharan Dass Chadha Vs. State
of Rajasthan AIR 1966 SC 1418, (ii) Vijay
Pal and others Vs. State of Haryana and
another, 1999 (9) SCC 67, (iii) Anjali
Ashok Sadhwani Vs. Ashok Kishinchand
Sadhwani, AIR 2009 SC 1374, (iv) Fatema
Vs. Jafri Syed Husain @ Syed Parvez
Jafferi, AIR 2009 SC 1773, (iv) Maneka
Sanjay Gandhi Vs. Rani Jethmalani
(1979) 4 SCC 167, (vi) Abdul Nazar
Madani Vs. State of Tamil Nadu (2000) 6
SCC 204, (vii) K.P. Tiwari Vs. State of
M.P. 1994 SCC (Cri) 712, (viii) K.
Anbazhagan Vs. Superintendent of Police
(2004) 3 SCC 767, (ix) Zahira Habibulla
H. Sheikh Vs. State of Gujarat (2004) 4
SCC 158, (x) Captain Amarinder Singh
Vs. Parkash Singh Badal and others
(2009) 6 SCC 260, (xi) Nahar Singh Yadav
and another Vs. Union of India and
others JT 2010 (12) 641, (xii) Lalu Prasad
Vs. State of Jharkhand (2013) 8 SCC 593,
(xiii) Amit Agarwal Vs. Atul Gupta 2014
(11) ADJ 414 (All.) and (xiv) Usmangani
Adambhai Vahora Vs. State of Gujarat
and another (2016) 3 SCC 370.

(i)
In
Maneka
Sanjay
Gandhi
(Supra), the Apex Court has observed as
under:-

"2. Assurance of a fair trial is the first
imperative of the dispensation of justice
and the central criterion for the court to
consider when a motion for transfer is
made is not the hypersensitivity or relative
convenience of a party or easy availability
of legal services or like mini‐grievances.
Something
more
substantial,
more
compelling, more imperilling, from the
point of view of public justice and its
attendant environment, is necessitous if the
Court is to exercise its power of transfer.
This is the cardinal principle although the
circumstances may be myriad and vary
from case to case. We have to test the
petitioner's grounds on this touchstone
bearing in mind the rule that normally the
complainant has the right to choose any
court having jurisdiction and the accused
cannot dictate where the case against him
should be tried. Even so, the process of
justice should not harass the parties and
from that angle the court may weigh the
circumstances."
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1043

(ii) In the case of Vijay Pal and others
(Supra), the Apex Court has held that in
absence of any justified reason, it is not
proper and legal to exercise power under
Section 407 Cr.P.C.

(iii) In the cases of Anjali Ashok
Sadhwani (Supra) and Fatema Vs. Jafri
Syed Husain @ Syed Parvez Jafferi
(Supra), it is held in matrimonial cases the
convenience of wife and in particular that
she has no one in her family escort her to
undertake a long journey, is a good ground
for transfer of cases.

(iv) In Gurcharan Dass Chadha
(Supra), the Apex Court held:-

"13. .....A case is transferred if there is
a reasonable apprehension on the part of a
party to a case that justice will not be done.
A petitioner is not required to demonstrate
that justice will inevitably fail. He is
entitled to a transfer if he shows
circumstances from which it can be inferred
that he entertains an apprehension and that
it is reasonable in the circumstances
alleged. It is one of the principles of the
administration of justice that justice should
not only be done but it should be seen to be
done. However, a mere allegation that there
is apprehension that justice will not be
done in a given case does not office. The
Court has further to see whether the
apprehension is reasonable or not. To judge
the reasonableness of the apprehension the
State of the mind of the person who
entertains the apprehension is no doubt
relevant
but
that
is
not
all.
The
apprehension must not only be entertained
but must appear to the Court to be a
reasonable apprehension."

(v) In Abdul Nazar Madani (Supra),
the Apex Court observed as follows:-

"7. The purpose of the criminal trial is
to dispense fair and impartial justice
uninfluenced by extraneous considerations.
When it is shown that public confidence in
the fairness of a trial would be seriously
undermined, any party can seek the
transfer of a case within the State under
Section 407 and anywhere in the country
under Section 406 of the Cr.P.C. The
apprehension of not getting a fair and
impartial inquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. If it appears that
the dispensation of criminal justice is not
possible impartially and objectively and
without any bias, before any Court on even
at any place, the appropriate Court may
transfer the case to another Court where it
feels that holding of fair and proper trial is
conducive. No universal or hard and fast
rules can be prescribed for deciding a
transfer petition which has always to be
decided on the basis of the facts of each
case. Convenience of the parties including
the witnesses to be produced at the trial is
also a relevant consideration for deciding
the transfer petition. The convenience of
the parties does not necessarily mean the
convenience of the petitioners alone who
approached the Court on misconceived
notions of apprehension. Convenience for
the purposes of transfer means the
convenience of the prosecution, other
accused, the witnesses and the larger
interest of the society."

(vi) In K.P. Tiwari (Supra) Apex court
has held :-

"4....It has also to be remembered that
the lower judicial officers mostly work
under a charged atmosphere and are
constantly under a psychological pressure
with all the contestants and their lawyers
almost breathing down their necks - more
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
correctly up to their nostrils. They do not
have the benefit of a detached atmosphere
of the higher courts to think coolly and
decide patiently. Every error, however
gross it may look, should not, therefore, be
attributed to improper motive."

(vii) In K. Anbazhagan (Supra), the
Apex Court had held as follows:-

"30. Free and fair trial is sine qua non
of Article 21 of the Constitution. It is trite
law that justice should not only be done but
it should be seen to have been done. If the
criminal trial is not free and fair and not
free from bias, judicial fairness and the
criminal justice system would be at stake
shaking the confidence of the public in the
system and woe would be the rule of law. It
is important to note that in such a case the
question is not whether the petitioner is
actually biased but the question is whether
the circumstances are such that there is a
reasonable apprehension in the mind of the
petitioner."

(viii) In Zahira Habibulla H. Sheikh
(Supra), the Apex court propounded that
fair trial obviously would mean a trial
before an impartial judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial
means a trial in which bias or prejudice for
or against the accused, the witnesses, or the
cause which is being tried is eliminated.

(ix) In the case of Captain Amarinder
Singh (Supra), the Apex Court while
dealing with two transfer applications
preferred under section 406 of the Code, on
the ground that with the change in State
Government, the trial was suffering setback
due to the influence of the new Chief
Minister as also the lack of interest by the
Public Prosecutor, has observed in paras
18, 19 and 20 as follows:-

"18. For a transfer of a criminal case,
there must be a reasonable apprehension
on the part of the party to a case that
justice will not be done. It is one of the
principles of administration of justice that
justice should not only be done but it
should be seen to be done. On the other
hand, mere allegations that there is
apprehension that justice will not be done
in a given case does not suffice. In other
words, the court has further to see whether
apprehension alleged is a reasonable or
not. The apprehension must not only be
entertained but must appear to the court to
be a reasonable apprehension.

19.Assurance of a fair trial is the first
imperative of the dispensation of justice.
The purpose of the criminal trial is to
dispense
fair
and
impartial
justice
uninfluenced by extraneous considerations.
When it is shown that the public confidence
in the fairness of a trial would be seriously
undermined, the aggrieved party can seek
the transfer of a case within the State
underSection 407and anywhere in the
country underSection 406Cr.P.C.

20. However, the apprehension of not
getting a fair and impartial inquiry or trial
is required to be reasonable and not
imaginary. Free and fair trial is sine qua
non of Article 21of the Constitution. If the
criminal trial is not free and fair and if it is
biased, judicial fairness and the criminal
justice system would be at stake, shaking
the confidence of the public in the system.
The apprehension must appear to the Court
to be a reasonable one."

(x) In the case of Nahar Singh Yadav
and another (Supra), the Apex Court has
observed as follows:-

"Thus, although no rigid and inflexible
rule or test could be laid down to decide
whether or not power un0der Section 406
5 All. Manju Bansal & Ors. Vs. State of U.P. & Anr.
1045
of the Cr.P.C. should be exercised, it is
manifest from a bare reading of subsections (2) and (3) of the said Section and
on an analysis of the decisions of this Court
that an order of transfer of trial is not to be
passed as a matter of routine or merely
because an interested party has expressed
some apprehension about the proper
conduct of a trial. This power has to be
exercised cautiously and in exceptional
situations, where it becomes necessary to
do so to provide credibility to the trial.
Some of the broad factors which could be
kept
in
mind
while
considering
an
application for transfer of the trial are:-

(i) when it appears that the State
machinery or prosecution is acting hand in
glove with the accused, and there is
likelihood of miscarriage of justice due to
the
lackadaisical
attitude
of
the
prosecution;

(ii) when there is material to show that
the accused may influence the prosecution
witnesses or cause physical harm to the
complainant;

(iii) comparative inconvenience and
hardships likely to be caused to the
accused, the complainant/the prosecution
and the witnesses, besides the burden to be
borne by the State Exchequer in making
payment of travelling and other expenses of
the official and non-official witnesses;

(iv)
a
communally
surcharged
atmosphere, indicating some proof of
inability of holding fair and impartial trial
because of the accusations made and the
nature of the crime committed by the
accused; and

(v) existence of some material from
which it can be inferred that the some
persons are so hostile that they are
interfering or are likely to interfere either
directly or indirectly with the course of
justice."

(xi) In Lalu Prasad (Supra), Apex
court
has
observed
as
under:-
"20. Independence of judiciary is the basic
feature of the Constitution. It demands that
a Judge who presides over the trial, the
Public Prosecutor who presents the case on
behalf of the State and the lawyer vis-a-vis
amicus curiae who represents the accused
must work together in harmony in the
public interest of justice uninfluenced by
the personality of the accused or those
managing the affairs of the State. They
must ensure that their working does not
lead to creation of conflict between justice
and jurisprudence. A person whether he is a
judicial officer or a Public Prosecutor or a
lawyer defending the accused should
always uphold the dignity of their high
office with a full sense of responsibility and
see that its value in no circumstance gets
devalued. The public interest demands that
the trial should be conducted in a fair
manner and the administration of justice
would be fair and independent."

(xii) This Court in case of Amit
Agarwal (Supra), considering the scope of
transfer in such a matter has held that:-

"24. Mere suspicion by the party that
he will not get justice would not justify
transfer. There must be a reasonable
apprehension to that effect. A judicial order
made by a Judge legitimately cannot be
made foundation for a transfer of case.
Mere presumption of possible apprehension
should not and ought not be the basis of
transfer of any case from one case to
another. It is only in very special
circumstances, when such grounds are
taken, the Court must find reasons exist to
transfer a case, not otherwise. (Rajkot
Cancer Society vs. Municipal Corporation,
Rajkot, AIR 1988 Gujarat 63; Pasupala
Fakruddin and Anr. vs. Jamia Masque and
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
Anr., AIR 2003 AP 448; and, Nandini
Chatterjee vs. Arup Hari Chatterjee, AIR
2001 Culcutta 26)

25. Where a transfer is sought making
allegations regarding integrity or influence
etc. in respect of the Presiding Officer of
the Court, this Court has to be very careful
before passing any order of transfer.
26. In the matters where reckless false
allegations are attempted to be made to
seek some favourable order, either in a
transfer application, or otherwise, the
approach of Court must be strict and
cautious to find out whether the allegations
are bona fide, and, if treated to be true on
their face, in the entirety of circumstances,
can be believed to be correct, by any
person of ordinary prudence in those
circumstances. If the allegations are
apparently false, strict approach is the call
of the day so as to maintain not only
discipline in the courts of law but also to
protect judicial officers and maintain their
self esteem, confidence and above all the
majesty of institution of justice."

(xiii) The Apex Court in case of
Usmangani Adambhai Vahora (Supra),
considering the previous judgments of the
Supreme Court has held:-

"Seeking transfer at the drop of a hat is
inconceivable. An order of transfer is not to
be passed as a matter of routine or merely
because an interested party has expressed
some apprehension about proper conduct of
the trial. The power has to be exercised
cautiously and in exceptional situations,
where it becomes necessary to do so to
provide credibility to the trial. There has to be
a real apprehension that there would be
miscarriage of justice."

14. On the basis of the law enunciated
and guidelines laid down by the Apex Court in
various decisions, the legal scenario emerges
may be summarized as under:- A free and fair
trial sine qua non of Article 21 of the
Constitution. It is also established principle of
law in dispensation of justice is that justice
should not only be done but it should be seen to
have been done. If criminal trial is not free and
fair, criminal justice system would be at stake
shaking the confidence of the public in the
system and rule of law. A fair trial means a trial
before an impartial judge, a fair prosecutor and
atmosphere of the judicial calm. Fair trial also
means in which bias or prejudice for or against
the party or witness.

15. Upon hearing learned counsel for the
parties and perusal of record, I find that the
applicant has failed to show any sufficient cause
for transferring the Sessions Trial No.19 of
2020 (State Vs. Manju Bansal and others),
arising out of Case Crime No.567 of 2018,
under Sections 498A, 504, 506, 307, 120B
I.P.C. and Section 3/4 of Dowry Prohibition
Act, Police Station- Pilakhuva, District Hapur,
pending in the court of Additional District &
Sessions Judge/Fast Track Court, Court No.1,
Hapur. The application is frivolous, vexatious
and deserves to be rejected.

16. The present transfer application is
accordingly, rejected.
----------
(2023) 5 ILRA 1046
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Crl. Misc. Transfer Appl. No. 620 of 2022

Sonam Rai ...Applicant
Versus
State of U.P. & Anr. ...Respondents