# Rakesh Kumar Mishra @ Laddu Baba (In Jail) v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 818
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Crl. Misc. Transfer Application No. 81 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-mishra-laddu-baba-in-jail-v-state-of-u-p-anr-44816
- **Pages:** 6

## Headnote

A. Criminal Law-Prevention of Money
Laundering Act,2002 - Section 45 - Code of
Criminal Procedure-Section 407- a case can
be transferred from one criminal court to
some other criminal court in case if it is
made to appear to the High Court that a fair
and impartial inquiry or trial cannot be had
in any criminal court subordinate theretohowever, in the instant case no such
allegations has been made against the
Designated Court, under the PMLA Act, at
Allahabad, to attract this provision. (Para
2,3,8,9,10,11,12,13)

Transfer application rejected (E-6)

## Text

818 INDIAN LAW REPORTS ALLAHABAD SERIES
seen that Sulphur is present in Single
Super Phosphate (SSP) as Calcium
Phosphate in Gypsum (CaSO4.2H2O).
The
state
legislature
had
already
identified Gypsum (CaSO4.2H2O) for
agriculture use as a commodity exempt
from tax under notification No. 784 dated
31.3.1995.

36. Insofar as the commodity Single
Super Phosphate (SSP) has no use other
than the agricultural use as a fertilizer,
reading exemption notification No. 440
dated 12.2.2001 and the exemption
notification No. 784 dated 31.3.1995
together, it is clear that they were issued
to grant exemption to various fertilizers
used in agriculture. Thus, all contents of
Single Super Phosphate (SSP) i.e. Mono
Calcium Phosphate [CaH4(PO4)2] and
Gypsum
(CaSO4.2H2O),
remained
generally exempt.

37.

Also,
inasmuch
as
the
exemption notification nos. 784 dated
31.3.1995 does not restrict the exemption
on Gypsum (CaSO4.2H2O) to its content
excluding Sulphur, it is not possible to
allow the revenue authorities to ignore the
composite identity of compound Single
Super Phosphate (SSP) or to allow them
to ignore the identity of Gypsum
(CaSO4.2H2O) as a constituent of that
compound for the purpose of bringing to
tax the value of Sulphur in Gypsum
(CaSO4.2H2O).

38. The clear legal position that
emerges is, de hors notification No. 784
dated 31.3.1995, it may have been
permissible to the revenue authorities to
tax the value of Gypsum (CaSO4.2H2O)
[as
Gypsum
is
a
non-Phosphatic
component of Single Super Phosphate
(SSP)] if such guidelines had been found
existing. However, in absence of such
exclusionary clause in that notification, it
is not permissible for the revenue
authorities to break the identity of
Gypsum
(CaSO4.2H2O)
so
as
to
determine
the
percentage
value
of
Sulphur in Gypsum (CaSO4.2H2O) only
with the object of imposing tax on the
value of Sulphur.

33. In view and in terms of the
above, the questions of law (as framed
above), are answered in the negative i.e.
in favour of the applicant-assessee and
against the revenue, in Sales/Trade Tax
Revision Nos. 178 of 2010, 179 of 2010,
180 of 2010, 188 of 2010, 189 of 2010,
190 of 2010, 191 of 2010, 192 of 2010,
242 of 2010, 243 of 2010, 244 of 2010 &
245 of 2010. Those revisions are
accordingly allowed. The other revisions
being Sales/Trade Tax Revision Nos.
1051 of 2008, 1052 of 2008, 1067 of
2008, 1064 of 2008, 1059 of 2008, 1070
of 2008, 1056 of 2008, 1069 of 2008,
1066 of 2008, 1060 of 2008, 1057 of
2008, 1062 of 2008, 1068 of 2008, 1065
of 2008, 1058 of 2008, 1071 of 2008,
1061 of 2008 & 1063 of 2008 stand
disposed of accordingly.
----------

(2019)11ILR A818

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Transfer Application No. 81 of 2019

Rakesh Kumar Mishra @ Laddu Baba
 ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties
3 All. Rakesh Kumar Mishra @ Laddu Baba Vs. State of U.P. & Anr.
819
Counsel for the Appellant:
Sri Nitesh Kumar Singh, Sri Ashutosh
Sharma

Counsel for the Opposite Parties:
G.A., Sri Gyan Prakash

A. Criminal Law-Prevention of Money
Laundering Act,2002 - Section 45 - Code of
Criminal Procedure-Section 407- a case can
be transferred from one criminal court to
some other criminal court in case if it is
made to appear to the High Court that a fair
and impartial inquiry or trial cannot be had
in any criminal court subordinate theretohowever, in the instant case no such
allegations has been made against the
Designated Court, under the PMLA Act, at
Allahabad, to attract this provision. (Para
2,3,8,9,10,11,12,13)

Transfer application rejected (E-6)

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

1. Heard learned counsel for the
applicant over this Transfer Application,
moved under Section 407 of Code of
Criminal Procedure, 1973 (hereinafter, in
short, referred to as the 'Cr.P.C.'), by the
applicant, Rakesh Kumar Mishra @
Laddu
Baba,
with
a
prayer
for
transferring Criminal Complaint Case No.
1/2016 (Assistant Director, Director of
Enforcement Govt. of India, Allahabad
Zone vs. Rakesh Mishra & Ors.), under
Section 45 of the Prevention of Money
Laundering Act, 2002 (hereinafter, in
short, referred to as the 'PML Act'), for
offence, under Section 3 and, punishable,
under Section 4 of the PML Act, arising
out of Enforcement Case Information
Report No. ECIR/02/VSI/2010, from the
court
of
Sessions/District
Judge,
Allahabad, designated as Special PML
Act Court to the Court of Special Judge,
Antic Corruption (Central), C.B.I. Cases
at Lucknow or to the Court of Sessions
Judge, Lucknow, designated as Special
Court, under the PML Act.

2. Learned counsel for the applicant
argued that entire transaction of alleged
withdrawal of cash by way of fraud and
fraudulent cheques has been accused to
have occurred at Lucknow and the
Sessions Judge is a Designated Special
Court, for conducting trial, under the
above Act for such type of offences.
Besides this, case arising out of same
transaction, is pending before the court of
CBI Judge, at Lucknow and the accusedapplicant, being behind the bar since last
three years, and two cases are running at
two different places, one at Lucknow and
the other at Allahabad, hence, is not in a
position to get a fair trial, under above
circumstances. Therefore, this case be
also transferred to Lucknow in the court
of
Special
Judge,
Anti
Corruption
(Central), CBI Cases, Lucknow, where
Case No. 3 of 2009, (State by C.B.I. vs.
Paras Nath Verma & others), is pending
or to the Court of learned Sessions
Judge/District Judge (Special Designated
Court, under PML Act), at Lucknow or to
pass any further order, which this Court
deems fit and proper in the facts and
circumstances of the case.

3.

Learned
counsel
for
the
respondent-Directorate of Enforcement,
Government of India, has vehemently
opposed the Transfer Application on the
pretext that this Court is not having
jurisdiction to entertain this Transfer
Application because the matter is arising
out
of
Anti
Corruption
Cases
of
Enforcement Directorate and for this
Court No. 65 is competent Court where
this case may be taken up. His next
argument was that the CBI is a Police
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Organisation, which conducts criminal
investigation in criminal cases, arising out
of criminal activities of accused persons
for which Special Court of CBI at
Lucknow is conducting trial for the
chargesheet, filed by the CBI, over which
cognizance
was
taken,
whereas,
Enforcement Directorate is concerned
with financial irregularities and money
laundering cases for which complaint
cases by the Enforcement Directorate has
been filed, which is pending before the
Special Designated court, under the
Prevention of Money Laundering Act, at
Allahabad, which happens to be the Court
of Sessions Judge, Allahabad, having
jurisdiction
over
the
matter.
This
Application has been moved, with a
prayer for transferring present case,
pending at Allahabd to CBI court at
Lucknow, just to intermingle facts and
hamper the trial because the CBI court, at
Lucknow, is having no concern with the
present matter, under Prevention of
Money Laundering Act, though alternate
relief is for transferring this case to the
court of Sessions Judge, Lucknow, which
is
a
designated
court,
under
the
Prevention of Money Laundering Act,
whereas,
the
territorial
jurisdiction
regarding offence, alleged to have been
reported by North Eastern Railway,
Gorakhpur, from whom complaint was
initiated of fraud, coupled with money
laundering, was committed, was of
Special Designated Court, under the
Prevention of Money Laundering Act, at
Allahabad, over the matter and as such
the
case
cannot
be
transferred
to
Lucknow.
Thus,
this
Transfer
Application, being without any ground,
be rejected.

4. Heard, learned counsel for both
sides and gone through materials placed
on record, it is apparent that the
jurisdiction for entertaining Application,
moved under Section 407 of the Cr.P.C.,
has been assigned to this Court only. So
far as jurisdiction of Court No.65 is
concerned, it has not been assigned
jurisdiction for entertaining Applications,
under Section 407 of Cr.P.C.

5. Perusal of the jurisdiction, as
shown in the Daily Cause List of the
Court, makes it clear that following
jurisdiction has been assigned to Court
No.65:
"(Court No.65)

Fresh: i. Application under
Section
482
Cr.P.C./Criminal
Writ/Criminal
Writ/Criminal
Revision/Matters under Art.227 of the
Constitution
of
India-State
cases
pertaining to section 376 I.P.C. (Sole or
with any other offence) (includes listed
matters of 2019); ii. Matters pertaining to
Prevention of Corruption Act and/or
matters investigated by C.B.I. (except
criminal appeal); iii. Matters arising out
of
investigation
by
Enforcement
Directorate; iv. NRHM and Ghaziabad
GPF scam; v. Criminal appeal pertaining
to Members of Parliament, Members of
Legislative Assembly and Members of
Legislative
Council;
Listed:
(Order,
Admission & Hearing) i. Application
under Section 482 Cr.P.C. from the year
2013 to 2015, ii. Matters pertaining to
Prevention of Corruption Act and/or
matters investigated by C.B.I. (except
criminal
appeal);
iii.
NRHM
and
Ghaziabad GPF scam; iv. All matters
arising
out
of
investigation
by
Enforcement Directorate; v. Criminal
appeal
pertaining
to
Members
of
Parliament,
Members
of
Legislative
Assembly and Members of Legislative
Council:"
3 All. Rakesh Kumar Mishra @ Laddu Baba Vs. State of U.P. & Anr.
821

6. Whereas jurisdiction to entertain
Applications, moved, under Section 407
of Cr.P.C., has been assigned to this
Court. The jurisdiction, assigned to this
Court, as shown in the Daily Cause List
of the Court, is as follows:

"(Court No. 79)

Fresh: i. Criminal appeal under
Section 372, 378 Cr.P.C. & Government
Appeal; ii. Application under Sections
378, 372, 389(2) and 407 Cr.P.C. Listed:
(Order,
Admission
&
Hearing)
i.
Application under Sections 378, 372,
389(2) and 407 Cr.P.C.; ii. Criminal
appeal, under Section 372, 378 Cr.P.C. &
Government
Appeal;
iii.
Criminal
appeal/Jail appeal/Government appeal
from the year 2011 to 2018."

7. Thus, from perusal of jurisdiction,
assigned to this Court, as shown in the
Daily Cause List of the Court, it is clear
that jurisdiction to entertain Application,
moved, under Section 407 of Cr.P.C. lies
with this Court. The instant Transfer
Application, moved under Section 407 of
the Cr.P.C., is for considering the grounds
taken in the Application for exercising
jurisdiction
for
getting
the
case
transferred from one Court to another
Court and it is not having any concern
with the merits of the case. Hence, as
specific
jurisdiction
to
entertain
Applications, moved, under Section 407
of the Cr.P.C., has been assigned to this
Court, as such, this Court is competent to
decide this Transfer Application.

8.
From
very
perusal
of
the
complaint, annexed with the Transfer
Application,
it
is
apparent
that
a
complaint was made by the Office of FA
& CAO (Construction), Broad Gauge,
North
Eastern
Railway
(NER),
Gorakhpur,
regarding
syphoning
off
Rs.1,84,68,500/-, fraudulently through
cheques from the Account of above
Railway concern. Subsequently, it was
found to be a case of money laundering.
Hence, a complaint was filed before the
court of Special Judge/Sessions Judge,
Allahabad, Designated court, under the
Prevention of Money Laundering Act,
2002, and the same was taken into
cognisance by the above Court and the
same is pending thereat.

9. The main relief, prayed for by the
applicant, as has been specified in the
rejoinder affidavit, is for transferring of this
case from the court of Special Designated
Court, under the Prevention of Money
Laundering Act, Allahabad to the Special
Designated
Court
at
Lucknow.
But,
admittedly, offence was committed with the
office of the FA & CAO (Construction),
Broad Gauge, North Eastern Railway,
Gorakhpur, which was the first complainant
and subsequently sequence of offence was
detected and since the jurisdiction, regarding
above offence, having been committed with
above office at Gorakhpur, is vested with the
designated court, under the Prevention of
Money Laundering Act, at Allahabad, hence,
territorial jurisdiction was with the Special
Designated Court at Allahabad, whereas,
Special Designated Court, at Lucknow, is not
having jurisdiction for above territory.

10. Since this Court is deciding the
Transfer Application, moved under Section
407 of Cr.P.C., it will be pertinent to refer,
Section 407 of the Code of Criminal
Procedure, 1973, which reads as follows:

"407. Power of High Court to
transfer cases and appeals.-(1) Whenever
it is made to appear to the High Court-
822 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(2) 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 a copy of the
grounds on which it is made; and no
order shall be made on 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 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.
3 All. Sanjay Verma & Anr. Vs. State of U.P. & Anr.
823

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

11. Thus, from perusal of provisions
of Section 407 of Cr.P.C., it is clear that a
case can be transferred from one criminal
court to some other criminal court in case
if it is made to appear to the High Court
that a fair and impartial inquiry or trial
cannot be had in any Criminal Court
subordinate thereto-, however, in the case
in hand, no such allegations has been laid
or made or caused to appear before this
Court against above Designated Court,
under the PMLA Act, at Allahabad, to
attract this provision.

12. Secondly,
a
case
can
be
transferred by the High Court in the
eventuality that some question of law of
unusual difficulty is likely to arise, but
unfortunately, no such recital is there in
the instant Transfer Application, nor
having been pressed or advanced by
learned counsel for the applicant, while
arguing the case and as such in the
absence of any such ground or argument,
question of exercising of power under this
provision does not arise.

13. Lastly, a case can be transferred
by the High Court, in case 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,
whereas, no such circumstances arisen
here in the instant case for entertaining an
Application, moved, under Section 407 of
the Cr.P.C. for transfer of the case on this
ground because territorial jurisdiction is
of Special Designated Court, under the
Prevention of Money Laundering Act, at
Allahabad, where the trial has proceeded
and mere desire of an applicant for
getting the case transferred to Lucknow
and nothing else is there and, therefore,
there is no ground to attract this
provision, under Section 407 of Cr.P.C.

14. In view of what has been
discussed
above,
the
Transfer
Application, being devoid of merits, and
without any ground, stands rejected.
----------

(2019)11ILR A823

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Transfer Application No. 171 of 2019
(U/s 407 Cr.P.C.)

Sanjay Verma & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Nitin Srivastava

Counsel for the Opposite Parties:
G.A., Sri Rahul Dubey

A.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 407 - transfer
application supported with an affidavit
and the contention of the affidavit
regarding application u/s 407 Cr.P.C. is
that counsel for Opposite Party extended
threat-no evidence of this threat is there
nor any report was lodged-telephonic
call threat was being extended, this
ground for transfer of case can never be
a sufficient ground-if there was any
threat, the same would have been
lodged with concerned police officer or
high ups-no such steps taken by the
applicant-the allegations levelled against