# Sonam Rai v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1046
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Crl. Misc. Transfer Appl. No. 620 of 2022
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonam-rai-v-state-of-u-p-anr-50074
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Sections 407 ,125 &128- The
applicant has filed an application under
Section 125 Cr.P.C. against the opposite
party no. 2 for providing Rs. 25,000/- per
month to her and her minor daughter as
maintenance allowance-applicant sought
the transfer of proceedings from Family
court Azamgarh to the Family court Mau
citing
safety
concerns
and
financial
hardship-The
family
court
Azamgarh
awarded her Rs. 4000 per month-due to
non-payment, she filed for recovery-the
applicant
claimed
threats
and
harassement from her husband during
court appearance in Azamgarh-she also
expressed financial hardship, inability to
travel alone with her minor child and her
fathers inability to accompany her due to
old
age-
Resultantly,
the
transfer
application is allowed. (Para 1 t0 16)

b. 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. 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 10)

The application is allowed. (E-6)

List of Cases cited:

## Text

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
5 All. Sonam Rai Vs. State of U.P. & Anr.
1047
Counsel for the Applicant:
Kusum Lata

Counsel for the Respondents:
G.A., Sri Chandra Kumar Rai

A. Criminal Law - Criminal Procedure
Code,1973-Sections 407 ,125 &128- The
applicant has filed an application under
Section 125 Cr.P.C. against the opposite
party no. 2 for providing Rs. 25,000/- per
month to her and her minor daughter as
maintenance allowance-applicant sought
the transfer of proceedings from Family
court Azamgarh to the Family court Mau
citing
safety
concerns
and
financial
hardship-The
family
court
Azamgarh
awarded her Rs. 4000 per month-due to
non-payment, she filed for recovery-the
applicant
claimed
threats
and
harassement from her husband during
court appearance in Azamgarh-she also
expressed financial hardship, inability to
travel alone with her minor child and her
fathers inability to accompany her due to
old
age-
Resultantly,
the
transfer
application is allowed. (Para 1 t0 16)

b. 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. 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 10)

The application is allowed. (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 UOI & Ors JT
(2010) 12 641

12. Lalu Prasad Vs St. of Jhar.(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.)

1. Heard learned counsel for the
revisionist and learned A.G.A. for the State.
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

2. As per office report dated
16.01.2023, notice issued by this Court
vide order dated 13.12.2022 has been
served upon opposite party no. 2 but
despite service of notice, no one has
appeared on his behalf. Therefore, the
Court is proceeding to decide the case on
merits.

3. The present transfer application has
been moved under Section 407 Cr.P.C.
against the opposite party no. 2 Rakesh Rai
with
prayer
to
transfer
the
entire
proceedings of Case No. 173 of 2020
(Sonam Rai Vs. Rakesh Rai), under Section
128 Cr.P.C., Police Station Tahabarpur,
District Azamgarh, pending before the
learned Principal Judge, Family Court,
Azamgarh to the court of competent
jurisdiction at District Mau.

4. Succinctly, the applicant case is
that applicant has filed an application under
Section 125 Cr.P.C. against the opposite
party no. 2 for providing Rs. 25,000/- per
month to her and her minor daughter Ruchi
as maintenance allowance. This application
is registered as Case. No. 442 of 2019
(Sonam Rai and others Vs. Rakesh Rai) in
the court of Principal Judge, Family Court,
Azamgarh.

5. Notices were issued to opposite
party but none appeared in the trial court to
file objection in the aforesaid proceedings.
Ultimately,
after
considering
all
the
material evidence available on record,
learned Principal Judge, Family Court,
Azamgarh has allowed the aforesaid
application
exparte
vide
order
dated
09.12.2020, directing the opposite party to
pay Rs. 4,000/- per month to the applicant
from the date of institution of application.
In compliance of the aforesaid order dated
09.12.2020, the opposite party no. 2 has not
paid
any
maintenance
allowance
till
December, 2020 and total amount of Rs.
74,000/- is remained to be paid. Thereafter,
the applicant filed an application under
Section 128 Cr.P.C. on 16.12.2020 before
the court concerned for recovery of balance
amount of Rs.74,000/- from the opposite
party no. 2, which is still pending. After
filing the aforesaid application under
Section
128
Cr.P.C.,
the
same
was
registered as Case No. 173 of 2020 in
which the objections of opposite party no. 2
were invited. Later on, recovery warrant
has
been
issued
on
17.03.2021.
In
compliance of the impugned order dated
17.03.2021, the opposite party no. 2 has
paid an amount of Rs.25,000/- in the
account
of
the
applicant,
therefore,
recovery warrant was cancelled by learned
trial court vide its order dated 18.03.2021.
Thereafter the opposite party no. 2
(husband) prayed to pay remaining amount
till date. Again recovery warrant was issued
against the opposite party no. 2 on
05.08.2022. The applicant is poor lady and
she has no source of income and depends
upon the income of her father, who also
bears the liability of other family members.
The applicant has one minor daughter aged
about 4 years with her and she cannot
attend the court proceedings at District
Azamgarh on each and every date so she
wants to transfer the entire proceedings at
District Mau. Father of the applicant is an
old person, who is unable to attend the
court on every date with the applicant and
in absence of him, the opposite party no. 2
was regularly threatened her when she goes
to attend the court proceeding alone. In that
circumstances, the life of the applicant is
not safe seeing the previous conduct of the
opposite party no. 2. She is ready to face
trial if the case is transferred to any court at
District Mau. Due to fear of the opposite
party no. 2 as well as his family members,
5 All. Sonam Rai Vs. State of U.P. & Anr.
1049
she do not want to face the trial at District
Azamgarh. The opposite party no. 2 has
good relation with the anti social elements
and he is waiting an occasion to take
revenge from the applicant if she goes to
Azamgarh for doing pairvi of the case in
question. The applicant has no source of
income and she is not in a position to bear
the expenses for doing pairvi of the case
pending before the learned Principal Judge,
Family
Court,
Azamgarh.
In
these
circumstances, the entire proceedings of the
case pending in the court of Principal
Judge, Family Court, Azamgarh may be
transferred to the competent court at
District Mau for fair trial.

6. The applicant is originally resident
of
village
Kothiyar,
Police
Station
Tahabarpur, District Azamgarh. Presently
she is resident of Hakikatpura, Police
Station Dakshin Tola, Tehsil Maunath
Bhanjan, District Mau while the opposite
party no. 2 (husband) is resident of village
Kothiyar,
Police
Station
Tahabatpur,
District Azamgarh.

7. Learned A.G.A. vehemently
opposed the submissions made by learned
counsel for the applicant, but could not
dispute the aforesaid facts.

8. The instant transfer application has
been moved by applicant Sonam Rai 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:-

9. 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.

(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
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

10. 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
5 All. Sonam Rai Vs. State of U.P. & Anr.
1051
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."

(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
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
5 All. Sonam Rai Vs. State of U.P. & Anr.
1053
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 under Section 406 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
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

11. 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.

12. Under Section 407 Cr.P.C. when it
is shown that public confidence in the
fairness of the trial would be undermined
any party can seek transfer of the case
5 All. Sonam Rai Vs. State of U.P. & Anr.
1055
within the State. Thus, the court may
transfer the case to another court where it
feels that fair and proper trial is conducive
for deciding a transfer petition, the court
has also to see convenience of the parties
and witnesses to be adduced at trial if also
relevant consideration. The convenience of
the parties is a misconceived motion of
apprehension where the convenience of not
only of prosecution, the accused and
witness in the larger interest of the society.
The apprehension that the applicant will
not
meet
the
ends
of
justice
and
convenience and availability of legal
services, the court may exercise its power
of transfer. This is cardinal principle of
jurisprudence that although circumstances
may be myriad and may vary case to case.
The court has to test petitioner's ground for
transfer on the touchstone bearing in the mind
the rule that normally complainant has right
to choose any court having jurisdiction even
so the process of justice should not harass the
parties and from that angle the court may
weigh. The apprehension not receiving
justice must be reasonable apprehension
based on strong material and not hypothetical
merely making vague allegation that there is
apprehension oin the mind of the applicant
that justice will not be given in a given case
and not lame excuse or for delaying tactics.

13. To analyse the grounds, facts and
circumstances, submissions of learned
counsel for the parties and guidelines laid
down by the Apex Court, it emerges that at
present the applicant is residing in District
Mau while the opposite party no. 2
(husband) is resident of District Azamgarh.
It is not disputed that both the cases, filed
by applicant are pending in the District
Azamgarh.

14. Learned counsel for the applicant
submits that she is a poor lady having no
source of income and depends upon the
income of her father, who also bears the
liability of other family members. The
applicant herself has a minor daughter aged
about four years. The father of the applicant
is an old person who is unable to attend the
court on every date with the applicant and
in absence of him, the opposite party no. 2
regularly threatened her, when she goes to
attend the court alone. Thus, life of the
applicant is not safe in view of the previous
conduct of the opposite party no. 2. Due to
fear of opposite party no. 2 as well as his
family members, she could not face the
trial in District Azamgarh. In these
circumstances, there is apprehension to her
life keeping in view the previous conduct
of opposite party no. 2. The opposite party
no. 2 has good relation with anti social
elements and he is waiting the occasion to
take revenge from the applicant if she goes
to Azamgarh for doing pairvi of the case in
question. She is also not able to bear the
expenses of pairvi of the case and opposite
party
is
not
paying
the
awarded
maintenance allowance to her.

15. Considering the facts and
circumstances of the case and submissions
of learned counsel for the parties in the
light of guidelines laid down by the Apex
court, I find that applicant has filed a
maintenance petitioner before the Principal
Judge, Family Court, Azamgarh wherein
she was granted maintenance allowance.
Now she has instituted an application under
Section 128 Cr.P.C. for recovery of
maintenance allowance. Applicant has no
source of income independently. She has a
baby of four years who is also dependent
upon her. She is totally dependent in all
respect on her father who is living presently
at District Mau. Although she did not
disclose
the
income
of
her
father
nevertheless it is the duty of the opposite
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
party no. 2 maintain the applicant and her
child. It has been argued that opposite party
no. 2 has paid only Rs. 25,000/- and Rs.
74,000/-
is
still
in
arrears
towards
maintenance. In these circumstances, it is
clear that the applicant has no sufficient
income to maintain herself, her minor
daughter and meet expenses of the
litigation. It is axiomatic that in the present
days of high inflammation, it is difficult to
lead a life without sufficient income. There
is another case which has been instituted at
District Azamgarh by the applicant under
Sections 498-A, 323, 504, 506, 120-B IPC
and Section 3/4 Dowry Prohibition Act.
Thus, she is living in her parental home due
to this matrimonial dispute between both
the parties. She has to attend the
proceedings at Azamgarh in both the cases.
It has been submitted that the father is to
look her and her daughter after only. It is
also submitted that he is an old man and
unable to company her on the each and
every date fixed at Azamgarh. This
compells the applicant to go the court at
Azamgarh. Seizing the opportunity of her
loneliness in the court, the opposite party
no. 2 may mishandle and cause injuries and
he even intimidate her life. Although there
is no any other proof to substantiate these
grounds nevertheless in the affidavit filed
in support of transfer application confirm
these allegations. Moreover, District Mau
and Azamgarh are situated nearby each
other. So the cases may conveniently be
attended at Mau. Thus, in the opinion of
this court apprehension expressed by the
applicant is reasonable. In view of the
above facts and legal scenario, I am of the
view that it is in the interest of justice that
the instant transfer application should be
allowed.

16.

Resultantly,
the
transfer
application is allowed. Let the Case No.
173 of 2020 (Sonam Rai Vs. Rakesh Rai),
under Section 128 Cr.P.C., Police Station
Tahabarpur, District Azamgarh, pending
before the learned Principal Judge, Family
Cour, Azamgarh be transferred to the
Principal Judge, Family Court, Mau for
disposal in accordance with law within
three months.

17. Let the copy of the order be sent
to the Principal Judge, Family Court, Mau
for necessary action and compliance.
----------
(2023) 5 ILRA 1056
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

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

Crl. Misc. Transfer Appl. No. 644 of 2022

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

Counsel for the Applicant:
Kusum Lata

Counsel for the Respondents:
G.A., Sri Chandra Kumar Rai

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 407 - Indian Penal
Code, 1860-Sections 498-A, 323, 504, 506
& 120-B - Section 3/4 Dowry Prohibition
Act-applicant has filed a complaint and
she has also instituted an application
under Section 128 Cr.P.C. for recovery of
maintenance allowance-the applicant has
no sufficient income to maintain herself,
her minor daughter and meet expenses of
the litigation-she is living in her parental
home due to this matrimonial dispute
between both the parties-She has to
attend the proceedings at Azamgarh in
both the cases-Her father is an old man