# Rohit Yadav & Anr v. State of U.P. & Anr

- **Citation:** (2016) 3 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-04
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-yadav-anr-v-state-of-u-p-anr-43587
- **Pages:** 6

## Text

688 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2016

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Transfer Application Criminal No.- 585 of 2015

Rohit Yadav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for Applicants:
Sri Gaurav Kakkar
Counsel for Opposite Parties:
G.A., Sri Ashwini Kumar Ojha

Transfer u/s 407 CrPC Refused - No Reasonable Apprehension - Prayer to transfer ST
No.159/2015 (u/ss 147,148,149,307,302,34 IPC, CC No.873/2014, PS Navabad, Jhansi) from Sessions
Court Jhansi - Held, vague claims of influence unsubstantiated; prior transfer applications
withdrawn/rejected; repeated counsel absences, bail conditions indicate delay tactics. (Paras 1-9)

Free & Fair Trial - Not Compromised - No specific instances of pressure on court/Bar; affluent
parties, applicants on bail (with cooperation condition); family able to attend - Held, transfer only on
concrete grounds affecting justice, not personal inconvenience. (Paras 7-9)

Transfer Application Rejected

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Gaurav Kakkar, learned counsel for the applicants, Sri A.K. Ojha, learned
counsel for opposite party no.2, learned AGA for the State and perused record.

2. The instant transfer application has been moved by the applicants Rohit Yadav and
Randheer Yadav, under Section 407 Cr.P.C., for transferring of the entire proceedings of
Sessions Trial No.159 of 2015, under Sections 147, 148, 149, 307, 302, 34 IPC, Police
Station Navabad, District Jhansi from Sessions Court Jhansi to any other neighbouring
district.

3. The facts germane to the present transfer application as reflected from the record
appears to be that one first information report was lodged on 11.12.2014 by the first
informant/opposite party no.2 Bijrendra Yadav son of Prem Vijay Yadav, at Case Crime
No.873 of 2014 under Sections 147, 148, 149, 302, 34 IPC, Police Station Navabad,
District Jhansi wherein the present applicants have been named. Thereafter the matter was
investigated into by the police and charge sheet against the applicants and other accused
persons was submitted and the case was committed to the Court of Sessions and has been
3 All. Rohit Yadav & Anr. Vs State Of U.P. & Anr.
689
numbered as Sessions Trial No.60 of 2015 pending in the court of the Additional Sessions
Judge, Court No.5, Jhansi.

4. It is gathered that an application for transfer under Section 408 Cr.P.C. being
numbered as 27 of 2015 was moved before the Sessions Judge, Jhansi, on 24.07.2015
which transfer application as per supplementary affidavit filed on behalf of the applicants
has been rejected by the Sessions Judge, Jhansi vide order dated 20.11.2015. A certified
copy whereof has been placed on record as annexure SA-II to the supplementary affidavit.

5. Pertinent to mention that the order dated 20.11.2015 was passed by the Sessions
Judge, Jhansi during pendency of the instant transfer application which has been taken up
by a coordinate Bench of this Court on 06.11.2015. It is reflected from record that against
two applicants, two Sessions Trials have been numbered as Sessions Trial No.60 of 2015
and Sessions Trial No.159 of 2015 and both have been consolidated for the purpose of trial.

6. The grounds of transfer have been made to the extend that the trial court is acting in
absolutely arbitrary manner as charge had been framed against the applicants in absence of
his lawyer and the accused was asked to cross examine PW-1 when the trial court was
informed that the defence counsel was not available. The father of the first informant is a
member of the district court Bar Association Jhansi as such he is exercising great pressure
on the members of the Bar Association Jhansi as well as Presiding Officer of Sessions
Court, Jhansi.

7. Certain averments have also been made in the accompanying affidavit to the transfer
application regarding the aforesaid transfer application (27 of 2015) moved before the
Sessions Judge, Jhansi, for transfer of the aforesaid sessions trials but this matter has ended
because the transfer application has already been disposed of by the Sessions Judge, as
observed above, on 20.11.2015 during pendency of instant transfer application before this
Court. It has also been averred that the applicant no.1, Rohit Yadav is in jail and his father,
Randheer Yadav is aged person who does not keep good health and is under regular medical
treatment. Since family members of the applicants do not consist of any other male
member, deponent who is real sister of the applicants is looking after and doing Parvi of the
said case and is running from pillar to post and she is facing great hardships on account of
pendency of the aforesaid sessions trial. The first informant and his father are exercising
extraordinary influence in district Jhansi due to political connection. Though the applicants
also happen to be permanent resident of district Jhansi, but they are praying for transfer of
the proceedings from district court Jhansi to any other neighbouring district only because
they are sure that they are not going to get free and fair trial in district court Jhansi.

8. The first informant Bijendra Yadav son of Prem Vijay Yadav is a political leader as
well as student leader of Bundelkhand Degree College and at present he is President of the
students union. Three sisters of the applicants namely Ruchi, Milan and Hema Yadav
(deponent) are married and are living at different places. It is clear that there is an imminent
hardship being faced by family members of the applicants in doing Parvi of the said case at
Jhansi as family members of the first informant have links with local Mafia and they are
690 INDIAN LAW REPORTS ALLAHABAD SERIES
continuously threatening family members of the applicants. The applicants Rohit Yadav and
Randheer Yadav are having criminal antecedents and several cases have also been
registered against them. In the aforesaid circumstances, it is incumbent upon the court (trial
court) concerned to ensure free and fair justice. Jurisprudential tenets stipulate that justice
should not only be done but it should seem to have been done.

9. Counter affidavit has been filed on behalf of opposite party no.2, Bijendra Yadav,
who is deponent. He has denied the averments raised in the accompanying affidavit to the
transfer application and has brought to the notice of the Court that in fact the applicant no.2
had earlier moved a transfer application before the Sessions Judge, Jhansi and the same has
been rejected as withdrawn on 22.07.2015. Copy whereof has been placed on record as
annexure CA-I to the counter affidavit.

10. An application was filed by co-accused Chahat Yadav through Sri Shanker Lal
Agarwal on 11.08.2015, for obtaining bail and release in custody of his mother.

11. The opposite party no.2 filed an Appeal No.88 of 2015 against the order dated
15.09.2015 passed by the Juvenile Justice Board, the same has been set aside in appeal and
the matter has been remanded by the Juvenile Justice Board for determination of juvenility
afresh. Copy of the order dated 16.12.2015 passed in Appeal No.88 of 2015 has been placed
on record as Annexure CA-III to the counter affidavit.

12. It is reflected from counter affidavit that the applicant no.2 Randheer Yadav has
been enlarged on bail after imposing certain conditions by a coordinate Bench of this Court
vide order dated 27.04.2015 in Criminal Misc. Bail Application No.12697 of 2015, but the
present applicants are trying to delay the proceedings of the trial by filing false and
frivolous application to get the trial transferred to some other court but the same has been
withdrawn. Consequently, it was dismissed as withdrawan. Thereafter, applicant no.1, Rohit
Yadav filed yet another transfer application before the Sessions Judge, and the same has
also been dismissed on 20.11.2015. Several counsels have been engaged by the applicants
namely Sri Arun Kumar Dixit, Sri Shanker Lal Agarwal, Shailendra Singh of district
(judgeship) Orai and Sri Arun Kumar Dixit, Sri Mayank Bajpayee, Sri Ashirwad Dwivedi,
Sri Sayeed Naqvi and Sri Ramendra Awasthi, Advocates have been engaged to argue the
case of accused Chahat Yadav. Their Vakalatnamas have been placed on record as annexure
CA-5 to the counter affidavit.

13. PW-2 Ravindra Yadav has also moved an application before Senior Superintendent
of Police, Jhansi on 03.01.2016 regarding threats extended by Hema Yadav daughter of
Randheer Yadav. Copy whereof has been placed on record as annexure CA-6 to the counter
affidavit.

14. While replying to the various contents of the accompanying affidavit to the transfer
application, it has been claimed that the applicants filed transfer application and engaged
several counsel and tried to prolong the matter on one pretext or other.
3 All. Rohit Yadav & Anr. Vs State Of U.P. & Anr.
691

15. No doubt, the father of the complainant is a member of the Bar Association district
court Jhansi but he is not a practising advocate and at present, he is engaged in doing
business and has no concern with advocacy and allegations made by the applicants that they
are not getting justice from the trial court stand belied by the aforesaid facts. The medical
prescription relates to the year 2007, 2011 and 2014 and it has been stated by the deponent
that he is under regular treatment. This shows concealment of real facts. Only frivolous
grounds for transfer have been tried to be invented which invention is futile exercise in
view of the existing facts and circumstances of the case made by the applicants themselves.

16. No doubt, the deponent is a students' union leader and is President of the students'
union but he has no concern with the district court Jhansi. The father of the applicant no.1
Rohit Yadav is on bail and he can do Parvi of the case very well. Milan Yadav as well as
Hema Yadav are married ladies but in the present transfer application moved under Section
407 Cr.P.C. address of both the ladies given by the deponent relates to that of district Jhansi.
The applicants have filed an application under Section 156 (3) Cr.P.C. in order to create
pressure in the murder case. The claim of the applicants for transferring the proceedings of
Sessions Trial to another district appears to be mischievous one and based on extraneous
causes.

17. Rejoinder affidavit has been filed on behalf of the applicants denying the claim
raised on behalf of the opposite party no.2 in the counter affidavit. However, specific
contention raised in paragraph no.20 of the counter affidavit regarding fact that father of the
first informant is a practising lawyer has not been specifically denied, whereas, as per claim
of opposite party no.2 this fact was specifically brought to the fore in paragraph no.6 of the
transfer application moved before the Sessions Judge, Jhansi, wherein an affidavit was filed
stating therein that father of the first informant is a member of the Bar Association Jhansi
and is a practising lawyer but the fact has not been specifically denied as such, and it
appears that the averment qua father of the first informant that he is a practising lawyer at
district court Jhansi is not borne out.

18. The contentions raised, inter-alia, are based on fact that free and fair justice will not
flow if the concerned sessions trials are allowed to proceed further as the first informant
and his father exercise great deal of influence over the district court and Bar Association
Jhansi and they may adversely influence and affect the proceedings of the aforesaid
sessions trial as such and they have intimate connections with local Mafia as well.

19. The moot point arises whether the sessions trials deserve to be transferred to some
another district on the basis of above contention?

20. Perusal of the record profusely reflects that the applicant no.2 Randheer Yadav,
father of the applicant no.1 Rohit Yadav has been admitted to conditional bail by this Court
vide order dated 27.04.2015 in criminal misc. bail application no.12697 of 2015, copy
whereof has been annexed as annexure CA-4 to the counter affidavit, wherein as many as
three conditions have been imposed and condition no.1 is that the applicant will cooperate
with the trial and remain present on each and every date fixed for framing of charge,
692 INDIAN LAW REPORTS ALLAHABAD SERIES
recording of evidence as well as recording of statement under Section 313 Cr.P.C.
Obviously, this bail order was obtained on 27.04.2015 and thereafter transfer application
was also filed by the applicant no.2 Randheer before the Sessions Judge, Jhansi for transfer
of the Sessions Trial No.60 of 2015 which transfer application was not pressed and has
been dismissed as withdrawn.

21. Besides, perusal of the record also establishes that service of advocate was available
to the applicants, particularly the applicant no.1 Rohit Yadav. On several occasions when
the prosecution witnesses were present, learned counsel for the applicants was absent and
he was lastly given a choice to engage service of amicus curiae at the government expenses
which he flatly refused. Even at this stage, the applicant no.1 has not come out with any
explanation about such refusal. But this particular act reflects on the bonafides of the
applicant no.1.

22. Perusal of the first information report brings out fact that both the parties are
affluent and belong to families having sufficient means at their command as the first
informant at the alleged time of the incident (in the first information report) was driving his
Scorpio jeep, whereas, the accused side was driving a Fortuner car/jeep which collided with
Scorpios jeep of the first informant and thereafter offence of murder was committed.

23. I have also scanned the entire order sheet annexed with the affidavit to the transfer
application as annexure no.2 which also reveals that the applicants are somehow trying to
delay conclusion of the trial. Contention regarding the fact that applicant no.1 Rohit Yadav
was not given an opportunity of hearing at the time of framing of charge and the charge was
framed in absence of his counsel then he had ample opportunity to challenge that order by
way of appropriate legal remedy. Instead of doing the needful he is woeful complaining
against the Presiding Judge of the concerned sessions trial. This act itself casts doubt about
the bona-fides of the applicants.

24. Learned counsel for the applicants has vehemently pleaded that the first informant
is the sitting President of students' union of degree college Jhansi, therefore, he is having
great influence in the area and fair trial is not expected in such a situation. Apt reply has
been given with equal force by learned counsel for opposite party no.2 by submitting that
specific denial has been made on behalf of the opposite party no.2 and it is true that he is
the sitting President of the students' union, but it is equally true that he does not have any
influence over district court Jhansi or the Presiding Officer of the trial court. Nothing
substantial or circumstantial has been brought to the notice of this Court as to how the
aforesaid reply of the learned counsel for opposite party no.2 should not be taken to be true
and correct. More so, the applicants have not given particular or instance regarding exercise
of such influence over the court at Jhansi or the Presiding Officer concerned by the opposite
party no.2. Thus it cannot be said that a person being the sitting President of a college or
degree college will invariably exercise pressure and influence over judicial institution. In
this regard, the contention so raised by the applicants falls flat.
3 All. CM A.S. Degree College Association & Anr. Vs State Of U.P. & Anr.
693

25. Vague and vexatious accusation without an element of truth on the working of trial
court not supported either by fact or circumstances will not ipso facto be 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 can not be asked by making ostentatious, baseless and whimsical
personal apprehensions. Normally such attempts should be strongly deprecated and
discouraged.

26. 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.

27. Accordingly, the instant transfer application is rejected.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ - C No. - 8553 of 2016

CM A.S. Degree College Association & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners: