# Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 7 ILRA 1328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-25
- **Case number:** Transfer Application (Crl.) No. 69 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-rajesh-kumar-singh-amit-singh-anr-v-state-of-u-p-anr-opp-parties-54521
- **Pages:** 12

## Headnote

Criminal Law-The Bhartiya Nagrik Suraksha
Sanhita,
2023-Section-447)
(The
Code
of
Criminal Procedure, 1973-Section 407)-Mere
suspicion by the party that he will not get
justice would not justify transfer. There must be
a reasonable apprehension to that effect. 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. (Para5, 19 & 24)

Application rejected. (E-15)

List of Cases cited:

1.Rajkot
Cancer
Society
Vs
Municipal
Corporation, Rajkot, AIR 1988 Guj 63

## Text

1328 INDIAN LAW REPORTS ALLAHABAD SERIES
render it a body corporate by the
name under which it is registered,
having perpetual succession and a
common seal, and with power to
hold property, enter into contracts,
institute and defend suits and other
legal proceedings and to do all
things necessary for the purpose for
which it was constituted."

10. The aforesaid provisions
demonstrate that the society may sue or be
sued through its Secretary and, therefore,
once death of the secretary was an admitted
fact and specifically brought on record on
21.08.2017 itself, irrespective of the fact
that the order of making good deficiency of
court fee might have remained uncomplied
with for long, the plaint could not be
rejected on 21.08.2017 when the society
was represented by a dead person.

11. The Court also notices the fact
that the civil appeal was filed by the society
represented through a newly appointed
Secretary and the lower appellate court has
taken a view that rejection of plaint was at
a premature stage and, therefore, the
appellate court has set aside the order
rejecting the plaint and directed the trial
court to decide the suit in accordance with
law.

12. The Court may also take note
of the power of the civil court to enlarge
time for any steps, as provided under
Section 148 of C.P.C., which reads as
under:-

"148. Where any period is
fixed or granted by the Court for
the doing of any act prescribed or
allowed by this Code, the Court
may, in its discretion, from time to
time, enlarge such period,1[not
exceeding thirty days in total,] even
though the period originally fixed
or granted may have expired."

13. In the facts of the case, the
Court feels that the civil court could have
also enlarged time for making good
deficiency by granting opportunity to the
society represented by the present Secretary
had it proceeded to grant opportunity for
substitution/due representation of plaintiff
society and once the appellate court has
already set aside the decree of rejection of
plaint, the said course is still open for the
trial court, as the power under Section 148
in its restricted sense, as contemplated
under the statute itself, is vested in civil
court.

14. Since civil appeal is in
continuance of suit proceedings and was
filed by the society represented by a new
secretary, the Court finds that rejection of
plaint on 21.08.2017, on which date the
counsel for the society had duly informed
the factum of death of ex-secretary, was
improper and unwarranted exercise of
power by the civil court. Consequently, the
Court does not find any error in the view
taken by the appellate court.

15. No substantial question of law
arises for consideration.

16.
The
second
appeal
is
dismissed.
----------

(2024) 7 ILRA 1328
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.
7 All. Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr. Vs. State of U.P. & Anr.
1329
Transfer Application (Crl.) No. 69 of 2024

Rajesh Kumar @ Rajesh Kumar Singh @
Amit Singh & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Petitioners:
Sumit Kumar Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law-The Bhartiya Nagrik Suraksha
Sanhita,
2023-Section-447)
(The
Code
of
Criminal Procedure, 1973-Section 407)-Mere
suspicion by the party that he will not get
justice would not justify transfer. There must be
a reasonable apprehension to that effect. 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. (Para5, 19 & 24)

Application rejected. (E-15)

List of Cases cited:

1.Rajkot
Cancer
Society
Vs
Municipal
Corporation, Rajkot, AIR 1988 Guj 63

2. Pasupala Fakruddin & anr. Vs Jamia Masque
& anr., AIR 2003 AP 448

3. Nandini Chatterjee Vs Arup Hari Chatterjee,
AIR 2001 Cul 26

4.Transfer Application (Civil) No. 519 of 2014
(Amit Agarwal vs. Atul Gupta)

5.Smt. Sangeetha S. Chugh Vs Ram Narayan V.
& ors., AIR 1995 Kar 112

6. Official Assignee, Madras Vs InspectorGeneral of Registration, Bangalore & anr., AIR
1981 Mad 54
7. Gujarat Electricity Board & anr. Vs Atmaram
Sungomal Poshani; AIR 1989 SC 1433 (1436).

8. G. Lakshmi Ammal Vs Elumalai Chettiar &
ors., AIR 1981 Mad 24

9. Ajay Kumar Pandey, Advocate, (1998) 7 SCC
248

10.Smt. Munni Devi & ors. Vs St. of U.P. & ors.,
2013(2) AWC 1546

11. Gurcharan Das Chadha Vs St. of Raj. (1966)
2 SCR 686.

12. Jawant Singh Vs Virender Singh 1995 Supp
(1) SCC 384

13. Chetak Construction Ltd. Vs Om Prakash &
ors., (1998) 4 SCC 577

14. R.K. Anand Vs Registrar, Delhi High Court
(2009) 8 SCC 106

15. Kulwinder Kaur Vs Kandi Friends Education
Trust reported in (2008) 3 SCC 659

16. Abdul Nazar Madani Vs St. of T.N.
MANU/SC/0349/2000 : (2000) 6 SCC 204

17. Captain Amarinder Singh Vs Parkash Singh
Badal & ors. MANU/SC/0797/2009 : (2009) 6
SCC 260

18. Lalu Prasad alias Lalu Prasad Yadav Vs St. of
Jhar. MANU/SC/0796/2013 : (2013) 8 SCC 593

19. Rajesh Talwar Vs CBI [(2012) 4 SCC 217]

20. Nahar Singh Yadav & anr. Vs U.O.I. & ors.
MANU/SC/0964/2010 : (2011) 1 SCC 307]

21. Usmangani Adambhai Vahora Vs St. of Guj.
& ors., MANU/SC/0014/2016 (AIR 2016 SC 336),

22. Rohit Yadav & anr. Vs St. of U.P. & anr.
2016 SCC OnLine All 3052

23. Afjal Ali Sha @ Abjal Shaukat Sha Vs St.
W.B.& ors. 2023 SCC OnLine SC 282

(Delivered by Hon'ble Saurabh Lavania, J.)
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Heard.

2. Present application has been
filed under Section 407 Cr.P.C./Section 447
of Bhartiya Nagrik Suraksha Sanhita, 2023
(in short "BNSS") for transfer of the Case
No. 16166 of 2013 (State vs. Rajesh Pratap
Singh and Another), arising out of
FIR/Case Crime No. 0324 of 2023 under
Section 323, 504, 506 & 307 IPC, P.S.-
Kotwali
Nagar,
District-Pratapgarh,
pending before C.J.M., Pratapgarh to any
other district of Uttar Pradesh.

3. The facts, relevant as indicated in
the affidavit filed in support of application
seeking transfer of the case in issue is to the
effect that the opposite party No.2/Guarav
Singh, Advocate are a practicing Advocate in
the District-Pratapgarh and as such he with
the help of other Advocates beaten the
applicant Nos. 1 and 2 on 01.06.2023 and
thereafter with the help of Police personnel
lodged the false FIR against the applicants
alongwith
two
unknown
persons
on
01.06.2023 registered as Case Crime No.
0324 of 2023 under Section 323, 504, 506,
394 & 307 IPC, P.S.-Kotwali City, DistrictPratapgarh and on account of pressure of
opposite party No.2, the Advocate engaged
by the applicants is not doing smoothly
pairavi on behalf of the applicants before the
Chief Judicial Magistrate, Pratapgarh.

4. This application has been filed
with a prayer to transfer the criminal case
from District-Pratapgarh to any other
district in the State of U.P. and in view of
the prayer sought, this Court finds it
appropriate to take note of the observations
made in this regard by the Constitutional
Courts.

5. Mere suspicion by the party that
he will not get justice would not justify
transfer. There must be a reasonable
apprehension to that effect. 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. Reference
can be made to the judgment(s) passed in
the case of Rajkot Cancer Society vs.
Municipal Corporation, Rajkot, AIR 1988
Guj 63; Pasupala Fakruddin and Anr. vs.
Jamia Masque and Anr., AIR 2003 AP
448; and Nandini Chatterjee vs. Arup
Hari Chatterjee, AIR 2001 Cul 26; as also
the judgment dated 12.11.2014 passed in
Transfer Application (Civil) No. 519 of
2014 (Amit Agarwal vs. Atul Gupta).

6. A Judge is not expected to
remain silent during course of hearing and
not to express any opinion. A sphinx like
attitude is not expected from a Presiding
Officer. There has to be an effective
discussion
and
effective
attempt
to
conciliate
or
to
clarify
the
misunderstanding or to get the issues clear,
so that the issues can be settled or a just and
proper decision can be arrived at. If in that
process the Presiding Officer would make a
statement it should not be misunderstood as
an expression of decision. Judges' opinions
during hearing of case do not automatically
justify transfer. [Smt. Sangeetha S. Chugh
vs. Ram Narayan V. and others, AIR 1995
Kar 112 and Official Assignee, Madras vs.
Inspector-General
of
Registration,
Bangalore and Anr., AIR 1981 Mad 54;
Gujarat Electricity Board & Anr. vs.
Atmaram Sungomal Poshani; AIR 1989 SC
1433 (1436).]
7 All. Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr. Vs. State of U.P. & Anr.
1331
7. Certain observations made by a
Judge in an earlier case can never be made
a ground for transfer of the case as held in
G. Lakshmi Ammal vs. Elumalai Chettiar
and Ors, AIR 1981 Mad 24. The
allegations of bias of Presiding Officer, if
made the basis for transfer of case, before
exercising
power
under
Section
408
Cr.P.C., the Court must be satisfied that the
apprehension of bias or prejudice is bona
fide and reasonable. The expression of
apprehension,
must
be
proved
/substantiated
by
circumstances
and
material placed by such applicant before
the Court. It cannot be taken as granted that
mere allegation would be sufficient to
justify transfer.

8. In Ajay Kumar Pandey,
Advocate, (1998) 7 SCC 248, the Hon'ble
Apex Court said that superior Courts are
bound to protect the Judges of subordinate
Courts from being subjected to scurrilous and
indecent attacks, which scandalise or have the
tendency to scandalise, or lower or have the
tendency to lower the authority of any court
as also all such actions which interfere or
tend to interfere with the due course of any
judicial proceedings or obstruct or tend to
obstruct the administration of justice in any
other manner. No affront to the majesty of
law can be permitted. The fountain of justice
cannot be allowed to be polluted by
disgruntled litigants. The protection is
necessary for the courts to enable them to
discharge their judicial functions without fear.

9. This Court also made similar
observations in Smt. Munni Devi and
others vs. State of U.P. and others, 2013(2)
AWC 1546 and in para 10, said:-

"Be that as it may, so far as
the present case is concerned,
suffice is to mention that the
Constitution makers have imposed
constitutional obligation upon the
High Court to exercise control over
subordinate judiciary. This control
is both ways. No aberration shall
be allowed to enter the Subordinate
Judiciary so that its purity is
maintained.
Simultaneously
Subordinate Judiciary can not be
allowed
to
be
attacked
or
threatened to work under outside
pressure
of
anyone,
whether
individual or a group, so as to form
a
threat
to
objective
and
independent
functioning
of
Subordinate Judiciary."

10. In assessing whether a case for
transfer of the proceedings has been made
out, it would, at the outset, be appropriate
to advert to the locus classicus on the
subject of the case. In Gurcharan Das
Chadha Vs. State of Rajasthan : (1966) 2
SCR 686.

"The law with regard to
transfer of cases is well-settled. 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
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
does not suffice. 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."

11. These sentiments have been
placed, in no uncertain terms, in the
judgment of the Hon'ble Apex Court in
Jawant Singh Vs. Virender Singh 1995
Supp (1) SCC 384 thus:

"It is most unbefitting for
an advocate to make imputations
against the Judge only because he
does not get the expected result,
which according to him is the fair
and reasonable result available to
him. Judges cannot be intimidated
to seek favourable orders...."

12. In a subsequent decision in
Chetak Construction Ltd. Vs. Om
Prakash & Ors., (1998) 4 SCC 577 the
Hon'ble Apex Court while adverting to
these observations held thus:-

"Indeed,
no
lawyer
or
litigant
can
be
permitted
to
browbeat the court or malign the
presiding officer with a view to get
a favourable order. Judges shall
not be able to perform their duties
freely and fairly if such activities
were permitted and in the result
administration of justice would
become a casualty and rule of law
would receive a setback. The
Judges are obliged to decide cases
impartially and without any fear or
favour.
Lawyers
and
litigants
cannot be allowed to "terrorize" or
"intimidate" Judges with a view to
"secure" orders which they want.
This is basic and fundamental and
no
civilised
system
of
administration of justice can permit
it. The court certainly, cannot
approve of any attempt on the part
of any litigant to go "forumshopping". A litigant cannot be
permitted "choice" of the "forum"
and every attempt at "forumshopping" must be crushed with a
heavy hand."

13. In R.K. Anand Vs. Registrar,
Delhi High Court (2009) 8 SCC 106, the
Hon'ble
Apex
Court
made
certain
observations which, though in the context
of a recusal, are of significance:-

"In the order the Judge
concerned further observed: "The
path of recusal is very often a
convenient and a soft option. This
is especially so since a Judge really
has no vested interest in doing a
particular matter. However, the
oath
of
office
taken
under
Constitution of India enjoins the
Judge to duly and faithfully and to
the best of his knowledge and
judgment, perform the duties of
office without fear or favour,
affection or ill will while upholding
the Constitution and the laws. In a
case,
where
unfounded
and
motivated allegations of bias are
sought to be made with a view of
forum hunting / Bench preference
or brow-beating the court, then,
succumbing to such a pressure
7 All. Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr. Vs. State of U.P. & Anr.
1333
would tantamount to not fulfilling
the oath of office."

14. The Hon'ble Apex Court in the
case of Kulwinder Kaur v. Kandi Friends
Education Trust reported in (2008) 3 SCC
659, observed as under:-

"23. Reading Sections 24
and 25 of the Code together and
keeping in view various judicial
pronouncements,
certain
broad
propositions as to what may
constitute a ground for transfer
have been laid down by courts.
They are balance of convenience or
inconvenience to the plaintiff or the
defendant
or
witnesses;
convenience or inconvenience of a
particular place of trial having
regard to the nature of evidence on
the points involved in the suit;
issues
raised
by
the
parties;
reasonable apprehension in the
mind of the litigant that he might
not get justice in the court in which
the suit is pending; important
questions of law involved or a
considerable section of public
interested in the litigation; "interest
of justice" demanding for transfer
of suit, appeal or other proceeding,
etc. Above are some of the
instances which are germane in
considering the question of transfer
of
a
suit,
appeal
or
other
proceeding. They are, however,
illustrative in nature and by no
means be treated as exhaustive. If
on the above or other relevant
considerations, the court feels that
the plaintiff or the defendant is not
likely to have a "fair trial" in the
court from which he seeks to
transfer a case, it is not only
thepower, but the dutyof the court
to make such order."

15. Hon'ble Apex Court in Abdul
Nazar
Madani
v.
State
of
T.N.
MANU/SC/0349/2000 : (2000) 6 SCC 204
has held that:-

"...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
or
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 hardand-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."

16. In the case of Captain
Amarinder Singh v. Parkash Singh Badal
and Ors. MANU/SC/0797/2009 : (2009) 6
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 260, while dealing with an application
for transfer petition preferred Under
Section 406 Code of Criminal Procedure, a
three-Judge Bench of Hon'ble Supreme
Court has opined that for 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 has
also been observed therein that mere an
allegation that there is an apprehension that
justice will not be done in a given case
alone does not suffice. It is also required on
the part of the Court to see whether the
apprehension alleged is reasonable or not,
for the apprehension must not only be
present but must appear to the Court to be a
reasonable apprehension. In the said
context, Hon'ble Supreme Court has held
thus:-

"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
Under Section 407 and anywhere in
the country Under Section 406
Code of Criminal Procedure.
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 21 of 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."

17. In Lalu Prasad alias Lalu
Prasad Yadav v. State of Jharkhand
MANU/SC/0796/2013 : (2013) 8 SCC 593,
Hon'ble
Apex
Court,
repelling
the
submission that because some of the
distantly related members of the trial Judge
were in the midst of the Chief Minister,
opined that from the said fact it cannot be
presumed that the Presiding Judge would
conclude against the appellant. From the
said
decision,
following
passage
is
reproduced hereinunder:-

"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
7 All. Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr. Vs. State of U.P. & Anr.
1335
of justice would be fair and
independent."

18. In the case of Rajesh Talwar
vs. CBI [(2012) 4 SCC 217] the Hon'ble
Apex Court held as under: -

"46. Jurisdiction of a court
to conduct criminal prosecution is
based on the provisions of the Code
of Criminal Procedure. Often either
the complainant or the accused
have to travel across an entire State
to attend to criminal proceedings
before a jurisdictional court. In
some cases to reach the venue of
the trial court, a complainant or an
accused may have to travel across
several States. Likewise, witnesses
too may also have to travel long
distances in order to depose before
the jurisdictional court. If the plea
of inconvenience for transferring
the cases from one court to another,
on the basis of time taken to travel
to
the
court
conducting
the
criminal trial is accepted, the
provisions
contained
in
the
Criminal
procedure
Code
earmarking
the
courts
having
jurisdiction to try cases would be
rendered
meaningless.
Convenience
or
inconvenience
inconsequential so far are as the
mandate of law is concerned. The
instant plea, therefore, deserves
outright rejection."

19. The aforesaid laws would
clearly emphasize on sustenance of majesty
of law by all concerned. Seeking of the
transfer of criminal trial at the drop of a hat
is not recognized by the courts or by any
tenent of law. 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 the conduct of
the trial by a Presiding Officer. This power
would have to be exercised cautiously and
in exceptional situations, where it becomes
necessary to do so to provide complete
justice and credibility to the trial as held in
Nahar Singh Yadav and Anr. v. Union of
India and Ors. MANU/SC/0964/2010 :
(2011) 1 SCC 307], the apprehension with
regard to the miscarriage of justice should
be real and substantial.

20. It is also worthwhile to extract
the view of the Hon'ble Supreme Court in
Usmangani Adambhai Vahora Vs. State of
Gujarat
and
Ors,
reported
in
MANU/SC/0014/2016 (AIR 2016 SC 336),
wherein it is emphasized that simply
because an accused or a party has filed an
application for transfer, a Judge is not
required to express his disinclination. He is
required under law to do his duty and not to
succumb to the pressure put by a party by
making callous allegations and he is not
expected to show unnecessary sensitivity to
such allegations.

21. In the case of Rohit Yadav and
Another vs. State of U.P. and Another
reported in 2016 SCC OnLine All 3052 the
transfer of the case was sought broadly on
two grounds; First ground was to the effect
that father of first informant is a Member of
District Court Bar Association Jhansi, as
such, he is exercising great pressure on the
Members of Bar Association, Jhansi as well
as Presiding Officer of Sessions Court,
Jhansi. Second ground was to the effect that
the first informant is a political leader as
well as student leader of Bundelkhand
Degree College and at present, he is
President of the students union. This Court,
upon due consideration, rejected the said
application. The relevant observations of
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court in the judgment passed in the
case
of
Rohit
Yadav
(supra)
on
reproduction read as under:-

"24.Vague and vexatious
accusation without an element of
truth on the working of Trial Court
not supported either by fact or
circumstances
will
notipso
factobe sufficient ground for
transfer of a case. Transfer of a
case can be made only when the
same is reasonably required under
facts and circumstances of a case.
If allegations made for transfer are
straightway discovered or found to
be affecting adversely interest of
justice instead of supporting it then
the same will tantamount to erosion
of judicial process itself and any
claim so made for transfer can be,
in
that
eventuality,
termed
unreasonable and uncalled for
transfer of a case cannot be asked
by making ostentatious, baseless
and
whimsical
personal
apprehensions.
Normally
such
attempts
should
be
strongly
deprecated and discouraged. While
considering the entirety of the
matter in hand, it is obvious that
this transfer application has not
been moved with any fair motive
but appears to be well thought
attempt to somehow occasion delay
in conclusion of the trial. If the
applicants are apprehensive of
their personal security then they
may bring relevant facts to the
notice of the trial Court itself. More
so the record reflects that the wife
of applicant No. 1 Rohit Yadav has
moved bail application on behalf of
minor son Chahat Yadav and has
sought release of her (minor) son in
her custody. This particular fact
reveals that wife of applicant No. 1
is able to do Parvi of a case in the
Court. More so applicant No. 2 is
already on bail and it cannot be
said that he is absolutely unable to
do Parvi of the cases (two sessions
trials) pending before the Sessions
Court
Jhansi.
Personal
inconvenience
and
personal
apprehension
of applicants
as
claimed by them are found to be not
based
on
reasonable
and
substantive grounds as such would
not justify transfer of the sessions
trials. Further if the transfer
application is moved with an
ulterior motive to occasion or
cause delay in disposal of the trial
itself then that application is highly
misconceived
and
cannot
be
allowed as that would adversely
affect interest of justice. In catena
of decisions, this tendency to seek
transfer on frivolous and vague
grounds
has
been
deprecated
repeatedly.
Consequently,
the
grounds urged in support of the
transfer
application
for
transferring the aforesaid sessions
trial are without any force and are
liable to be turned down.
25. Accordingly, the instant
transfer application is rejected."

22. The Hon'ble Apex Court in the
case of Afjal Ali Sha @ Abjal Shaukat Sha
vs. State of West Bengal & Ors. 2023 SCC
OnLine SC 282 observed as under:-

"C.2.
GROUNDS
FOR
TRANSFER
26. Coming to the second
limb of the contentions raised on
behalf of the parties, we may firstly
7 All. Rajesh Kumar @ Rajesh Kumar Singh @ Amit Singh & Anr. Vs. State of U.P. & Anr.
1337
notice some of the well-defined
contours in relation thereto. It has
by now been well established that a
well-founded
apprehension
that
justice will not be done is a
prerequisite for transfer of the case.
Tracing the power of transfer of a
case, we are reminded of Lord
Hewart's dictum in Rex v. Sussex
Justices stating that "It is not
merely of some importance but is of
fundamental
importance
that
justice should not only be done, but
should manifestly and undoubtedly
be seen to be done".
27. The right to a fair trial
is a fundamental right under
Article 21 of the Constitution of
India and its importance cannot be
emphasised enough. However, to
obtain the transfer of a case, the
Petitioner is required to show
circumstances from which it can be
inferred
that
he
entertains
a
reasonable
apprehension.
This
apprehension cannot be imaginary
and cannot be a mere allegation.
28. The power of transfer
under Section 406, CrPC is to be
exercised sparingly and only when
justice is apparently in grave peril.
This Court has allowed transfers
only
in
exceptional
cases
considering the fact that transfers
may cast unnecessary aspersions
on the State Judiciary and the
prosecution agency. Thus, over the
years, this Court has laid down
certain guidelines and situations
wherein
such
power
can
be
justiciably invoked.
29. In Amarinder Singh v.
Parkash Singh Badal, this Court
observed as follows:
"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
under Section 407 and anywhere in
the country under Section 406
CrPC."
30. In Nahar Singh Yadav
v. Union of India after analysing
the
case-law,
this
Court
enumerated the basic principles of
the power of transfer under Section
406, CrPC as follows:
"29. Thus, although no
rigid and inflexible rule or test
could be laid down to decide
whether
or not
power
under
Section 406 CrPC should be
exercised, it is manifest from a bare
reading of sub-sections (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:
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 some persons are so
hostile that they are interfering or
are likely to interfere either directly
or indirectly with the course of
justice."
31. In R. Balakrishna Pillai
v. State of Kerala, this Court noted
the crucial separation of powers
between the judiciary and the
executive and held that "Judges are
not influenced in any manner either
by the propaganda or adverse
publicity. Cases are decided on the
basis of the evidence available on
record and the law applicable."
32. The convenience of
parties and witnesses as well as the
language spoken by them are also
relevant factors when deciding a
transfer petition, as has been noted
by this Court in a catena of
judgments.
33. In some of the recent
decisions including in Neelam
Pandey v. Rahul Shukla, this Court
has viewed that transfer of a
criminal case from one state to
another implicitly reflects upon
credibility of not only the State
Judiciary
but
also
of
the
prosecution agency."

23.

Having
considered
the
observations made by the Constitutional
Courts on the issue of transfer of a case
from one Court to another Court as also the
fact(s) of the present case that (i) Applicant
No. 1 is brother-in-law of opposite party
No. 2; (ii) Sister of opposite party No. 2
(wife of applicant No. 1) lodged an FIR
against the applicants under Section 498-A,
323 I.P.C. & Section-3/4 D.P. Act in two
Districts in respect of same alleged incident
in which one has been registered as a Case
Crime No. 29/2020 at Police StationDariyabad, District-Barabanki and another
in Case Crime No. 01/2020 at Police
Station-Kotwali Nagar, District-Pratapgarh
and both the cases Investigating Officers
have submitted the Charge-sheets against
the applicants; (iii) Allegations that under
the pressure of opposite party No. 2 the
charge sheets have been filed in the cases
instituted by the sister of the opposite party
No. 2 are completely vague; (iv) The
applicant No. 1 is already on bail in the
case in issue and this fact indicates that
opposite party No. 2 did not influence
either the Advocate appearing in the case or
the Police of the district or the Presiding
7 All. Radheshyam Vs. State of U.P. & Ors.
1339
Officer and accordingly it reveals that
family members of the applicant No. 1 and
applicant are able to do pairavi in the case;
(v) Applicant No. 1 has to attend the case
instituted at District-Pratapgarh by wife,
this Court finds no force in the application.

24.

Accordingly,
present
application is rejected. No order as to
costs.
----------
(2024) 7 ILRA 1339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 6890 of 2024
Alonwith
Writ-A No. 18846 of 2018

Radheshyam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Uma Nath Pandey

Counsel for the Respondents:
C.S.C.

A. Service matter- Constitution of India,
1950-Article 226-U.P. Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules 1978-Rule 4-Petitioner
sought payment of contributory provident
fund, pension, and salary arrears-The
court had previously held( in 2018) that
seniority would only count from the year a
teacher
obtained
the
necessary
qualifications, making one Ravendra Singh
senior to the respondents-The Director of
Education, however ruled in 2018 that
seniority should be based on initial
appointment dates, disregarding the 2018
court
ruling-The
court
quashed
the
Director's
order
and
reaffirmed
that
seniority should be determined from the
date of obtaining training qualifications,
not initial appointment-The director was
ordered to reconsider the seniority claims
within two months.(Para 1 to 33)

The petition is allowed. (E-6)

List of Cases cited:

1. U.P. Basic Shiksha Parishad & anr Vs Hari
Deo Mani Tripathi & ors. (1996) 9 SCC 623

2. Shitla Prasad Shukla Vs St. of U.P. & ors.
(1986) UPLBEC 473

3. Panchami Singh & ors. Vs Jt. Dir. of Edu.
Gorakhpur & ors. (2003) 1 363 All

4. Arvind Kumar Tripathi Vs St. of U.P. & ors.
(2013) 1 UPLBEC 419

5. Jagdish Narain Shastri Vs Basic Shiksha
Parishad Etawah (1986) UPLBEC 1058 (CMWP
No. 10920 of 1986)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Case called out in the revised
list.

2. Heard Sri Kushmondeya Shahi,
the learned counsel for the petitioner, Sri
Manoj
Srivastava,
learned
Standing
Counsel representing respondents no. 1, to
3 and Sri Uma Nath Pandey, learned
counsel appearing for respondent no. 6. No
other
counsel
is
present
and
no
adjournment of the case has been sought.

3. By means of Writ-A No. 18846
of 2018 filed under Article 226 of the
Constitution of India, the petitioner -
Ravendra
Singh,
has
challenged
the
validity of an order dated 07.08.2018,
passed by the Director of Education
(Secondary), U.P. Lucknow, rejecting the
petitioner's
representation
dated