# Surendra Kumar Mishra v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 825
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Crl. Misc. Transfer Application No. 443 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-mishra-v-state-of-u-p-anr-44825
- **Pages:** 3

## Headnote

Law-Code
of
Criminal
Procedure,1973 - Section 407 & Indian
Penal
Code,1860-Sections
147,342,377,323,392,504,120-B-condition
precedent for entertaining an application
u/s 407 Cr.P.C. that no application shall lie
to the High Court for transferring a case
from one Criminal Court to another
Criminal Court in the same Session
Division, unless an application for such
transfer has been made to the Sessions
Judge and rejected by him-No Sessions
Judge is expected to pressurize any
applicant or his counsel for not pressing a
transfer application,moved before it, or
any criminal or civil proceeding,pending
before it. Applicant may move transfer
application
before
the
Session
Judge,Kanpur Nagar where it shall be
heard and decided on merit only then after
applicant may be at liberty to approach the
court under section 407 Cr.P.C. (Para 5,6,7)

Transfer application disposed off (E-6)

## Text

3 All. Surendra Kumar Mishra Vs. State of U.P. & Anr.
825
any threat, the same would have been
lodged with concerned police officer or
high ups. So far as providing of security
is concerned, application was moved
before the court and by a judicial order, it
was referred to S.S.P., Jhansi, and in case
of non compliance of same, appropriate
proceeding before the concerned court
would have been taken. But no such step
was taken by the applicants. This
complaint case, u/s 138 N.I. Act, is
pending before the Court of Magistrate in
Jhansi
Sessions
Division.
Territorial
jurisdiction is with above court and the
same is at advance stage of recording of
statement u/s 313 Cr.P.C. By moving this
application, trial has been held up.
Whereas no allegation against Presiding
Officer is there. The allegations levelled
against the complainant and his counsel
are not of noticeable substance. Hence
application merits its rejection.

6. Rejected accordingly.

7. However, the Court of Magistrate
concerned may take appropriate steps in
case of any judicial proceeding against
police
personnel
regarding
noncompliance of its order is made.

8. Interim order got vacated.

9. Both sides to appear before the
trial court at an expedient and the trial
shall be concluded at the expedient.
----------

(2019)11ILR A825

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.
Crl. Misc. Transfer Application No. 443 of 2019
(U/s 407 Cr.P.C.)

Surendra Kumar Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Suresh Kumar Gupta

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 407 & Indian
Penal
Code,1860-Sections
147,342,377,323,392,504,120-B-condition
precedent for entertaining an application
u/s 407 Cr.P.C. that no application shall lie
to the High Court for transferring a case
from one Criminal Court to another
Criminal Court in the same Session
Division, unless an application for such
transfer has been made to the Sessions
Judge and rejected by him-No Sessions
Judge is expected to pressurize any
applicant or his counsel for not pressing a
transfer application,moved before it, or
any criminal or civil proceeding,pending
before it. Applicant may move transfer
application
before
the
Session
Judge,Kanpur Nagar where it shall be
heard and decided on merit only then after
applicant may be at liberty to approach the
court under section 407 Cr.P.C. (Para 5,6,7)

Transfer application disposed off (E-6)

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

1. This Transfer Application has
been filed by Surendra Kumar Mishra,
with a prayer for transferring Criminal
Revision No. 192 of 2017, arising out of
Complaint Case No. 6477 of 2016111679 of 2017, Surendra Kumar Mishra
vs. Ram Kumar Bajpayee and others,
under Sections 147, 342, 377, 323, 392,
504 and 120-B of Indian Penal Code, of
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station Collectorganj, District
Kanpur Nagar, pending in the court of
Additional Sessions Judge, Court No. 13,
Kanpur Nagar, to any other court in
Kanpur Nagar.

2. Learned counsel for the applicant
argued that the Transfer Application was
moved before the court of Sessions Judge,
Kanpur Nagar, where applicant and his
counsel was compelled to not press Transfer
Application, owing to it, Transfer Application
was not pressed and as a result of which
Transfer Application was rejected as not
pressed by the learned Sessions Judge,
Kanpur Nagar. Applicant was compelled to
not press his Transfer Application because of
rejection of another Transfer Application,
moved by Sunil Sahgal, for the same Criminal
Revision from the same court to some other
court, before the court of Sessions Judge,
Kanpur Nagar, which was rejected by above
court and applicant was directed for not
pressing above Transfer Application. Hence,
under
above
circumstances,
Transfer
Application No. 1726 of 2019, Surendra
Kumar Mishra vs. State of U.P. and another,
was not pressed and was rejected on
26.8.2019.

3.

For
deciding
this
Transfer
Application, perusal of Section 407 of the
Code of Criminal Procedure, 1973, would be
necessary.

4. Proviso to Section 407 of the
Code of Criminal Procedure says that
"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."

5. Hence, condition precedent for
entertaining
an Application, under
Section 407 of Cr.P.C. by the High
Court, with a prayer for transferring a
criminal case from one Criminal Court
to another Criminal Court, in the same
Sessions Division, is that Transfer
Application, must be firstly moved
before the Court of Sessions Judge and
the same must be rejected by that
court.

6. Rejection of such Transfer
Application means rejection on merits by
assigning reasons and not rejection as not
pressed. In the present case, Transfer
Application has been rejected on the
ground of not pressing the same, i.e.,
Transfer
Application
has
not
been
rejected on merits. Hence, this Transfer
Application, presented before the High
Court, with a prayer for transfer of a
Criminal Case from one Criminal Court
to another Criminal Court, in the same
Sessions Division, is not maintainable, at
this stage, in view of proviso to Section
407 of Cr.P.C.

7. However, it will not be out of
place to mention that no Sessions Judge
is expected to pressurise any applicant
or his counsel for not pressing a
Transfer Application, moved before it,
or any criminal or civil proceeding,
pending before it. Applicant may move
Transfer
Application
before
the
Sessions Judge, Kanpur Nagar where it
shall be heard and decided on merit
only thenafter, applicant may be at
liberty to approach this Court, under
Section 407 of Cr.P.C.

8. With aforesaid observations, this
Transfer Application stands disposed of.
----------
3 All. Bhawani Pher Dubey Vs. State of U.P. & Ors.
827
(2019)11ILR A827

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2019

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE RAJEEV SINGH, J.

Misc. Bench No. 20867 of 2018

Bhawani Pher Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Karunakar Srivastava

Counsel for the Respondents:
Govt. Advocate, Sri Rajendra Kumar
Dwivedi

A. Criminal Law -Indian Penal Code, 1860
-Sections 307, 325, 323, 504 r/w Section
152 Railways Act-cross case-transfer of
investigation-father
of
accused(T.T.E.)
made a request for transferring the
investigation to CBCID just to save him.

B. when statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise.Otherwise, an order bad in the
beginning may, by the time it comes to
court on account of a challenge, get
validated
by
additional
grounds
later
brought out. (Para 7,8,19,20,22)

Petition allowed (E-6)

List of cases cited:-

1. Mohinder Singh Gill and another Vs. Chief
Election Commissioner, New Delhi and Ors,
(1978) 1 SCC 405

2. Commr. Of Police, Bombay Vs. Gordhandas
Bhanji, AIR 1952 SC 16
(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri Karunakar Srivastava,
learned counsel for the petitioner, Shri
Rajendra
Kumar
Dwivedi,
learned
counsel for the respondent No.6 and Shri
S.P. Singh, learned counsel for the State.

2. The petition seeks issuance of a
writ in the nature of certiorari quashing
order dated 19.06.2018 passed by Special
Secretary, Home, Government of U.P.
Lucknow
for
transferring
the
investigation of Case Crime No.208 A of
2015 Police Station G.R.P. Gonda on the
choice of accused side.

3. Learned counsel for the petitioner
has submitted that the son of petitioner
was working in Prism Cement Ltd. as
Assistant Manager (Sales) and due to
some official work, he was going to
Faizabad
from
Mankapur by Train
namely
Gorakhpur-Yashwan
Nagar
Express Train No.15023 and at the place
of Tikri. In the meantime, respondent
No.6
who
is T.T.E.
(Train Ticket
Examiner) in the Railways, came and
asked for the ticket and the son of the
petitioner has shown the ticket of General
Class. As a result, the respondent No.6
asked to pay the penalty to the ticket and
demanded Rs.1000/- and the son of
petitioner gave the same but neither the
ticket was made nor any receipt of
payment was given to the son of
petitioner. Therefore, his son requested to
make his ticket and also provide the
receipt of penalty but the opposite party
No.6 denied and started abusing by
showing his own pistol but when his son
raised objection, then he was thrown out
from the running train, as a result, he
received serious injuries and thereafter,
with the help of others, he was