# Surendra Singh & Ors v. State of U.P. & Anr

- **Citation:** (2013) 3 ILRA 1304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-24
- **Bench:** Kalimullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-singh-ors-v-state-of-u-p-anr-42693
- **Pages:** 6

## Headnote

A.G.A.,
Sri
K.P.S.
Yadav,
Sri
Rajul
Bhargava
Sri Yogesh Srivastava

Cr.P.C.-Section 407- Transfer application
by accused applicants-on ground in Distt.
Firozabad-no
counsel
of
their
choice
available-almost 5 time case has been
transferred from one court to other-lastly
transfer order passed by District Session
Judge-on behest of informant-although
recorded specific finding all the allegation
against presiding judge Court No. 9 are
vague-even then transferred the trail of
four cases from court no. 9 to court no. 1undisputed that pursuant to direction High
Court-all 23 witness of prosecution as well
as defence witness recorded by judge
Court No. 9 and the statement under
section 313 Cr.P.C. recorded who had
privilege
to
watch
the
demure
of
witnesses-considering
such
facts
and
circumstances-transfer
order
quashedJudge court No.9 shall try and decide the
cases within 30 days.

Held: Para-16, 17 & 18

## Text

1304 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Since I have come to conclusion
that the evidence relied by the revisionist
while filing the review petition would
amount to re-appreciation of evidence
which will touch the merit of the
judgment and award passed by the
Tribunal, as such, I am of the view that
the review petition filed by the revisionist
was
not
maintainable.
The
learned
Tribunal has rightly rejected the review
petition.

30. The instant civil revision as such
having no force is dismissed.

31. However, the revisionist shall
have the right to challenge the judgment
and award dated 28.8.2008 passed in
Claim Petition No. 109 of 1996 by filing
First Appeal From Order before the High
Court.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2013

BEFORE
THE HON'BLE KALIMULLAH KHAN, J.

Criminal Misc. Transfer Application No.
117 of 2013.

Surendra Singh & Ors.
 Applicants
Versus
State of U.P. & Anr.
 ...Opp. Parties.

Counsel for the Petitioner:
Sri Ajay Kumar Pandey, Sri Satish Trivedi

Counsel for the Respondents:
A.G.A.,
Sri
K.P.S.
Yadav,
Sri
Rajul
Bhargava
Sri Yogesh Srivastava

Cr.P.C.-Section 407- Transfer application
by accused applicants-on ground in Distt.
Firozabad-no
counsel
of
their
choice
available-almost 5 time case has been
transferred from one court to other-lastly
transfer order passed by District Session
Judge-on behest of informant-although
recorded specific finding all the allegation
against presiding judge Court No. 9 are
vague-even then transferred the trail of
four cases from court no. 9 to court no. 1undisputed that pursuant to direction High
Court-all 23 witness of prosecution as well
as defence witness recorded by judge
Court No. 9 and the statement under
section 313 Cr.P.C. recorded who had
privilege
to
watch
the
demure
of
witnesses-considering
such
facts
and
circumstances-transfer
order
quashedJudge court No.9 shall try and decide the
cases within 30 days.

Held: Para-16, 17 & 18
16. To my mind, it would be a mockery
to the judicial system that a party is
given such a latitude to choose Presiding
Officer of his own choice and then allow
the trial court to proceed with the case.

17. In the totality of the facts and
circumstances of the case, this Court
appears to be under obligation, judicial
as well as supervisory, to see that the
session trials in question be disposed of
by
the
available
present
Presiding
Officer, who had got the opportunity of
recording the evidence of prosecution
and defence witnesses and to see their
demeanour. Once the allegations made
by
the
informant
in
the
transfer
application was found false, bearing no
substance at all, the learned Sessions
Judge was not supposed to allow his
transfer
application
and
recall
the
aforesaid session trials from the court of
the learned Additional Sessions Judge,
Court No. 9, Firozabad and transfer it to
the court of the learned Sessions Judge,
Court No. 1, Firozabad, who has neither
recorded the evidence of prosecution
and defence witnesses nor heard the
arguments so far.

18. In the result, the transfer order
dated 19.02.2013 passed by the learned
3 All] Surendra Singh & Ors. Vs. State of U.P. & Anr.
1305
Sessions Judge, Firozabad is, hereby, set
aside.

(Delivered by Hon'ble Kalimullah Khan, J.)

1. This transfer application has been
filed by 12 accused applicants, under section
407 Cr.P.C. to transfer Session Trial No. 753
of 2008 (State v Ashok Dixit & others)
connected with Session Trial Nos. 757 of
2008, 758 of 2008 and 759 of 2008 pending
before the court of the learned Additional
Sessions Judge, Court No. 1, Firozabad to
any other court of competent jurisdiction of
any adjoining district.

2. Counter and rejoinder affidavits
have been exchanged.

3. The grounds for transfer have
been taken in the transfer application
itself.

4. According to the applicants they are
accused in the aforesaid session trials, which
were pending in the court of the learned
Additional Sessions Judge, Court No. 9,
Firozabad, who after recording the evidence
of prosecution and defence witnesses, heard
the arguments of prosecution and when the
date was fixed for final arguments of the
accused, first informant, opposite party no. 2,
Om Prakash Yadav, filed transfer application
before the court of the learned Sessions
Judge, Court No. 1, Firozabad to transfer the
main Session Trial No. 753 of 2008 from the
court of the aforesaid learned Additional
Sessions Judge, Court No. 9, Firozabad to
any other court of the competent jurisdiction
on the ground that he had no faith in the
Presiding Officer of the aforesaid court.
Comments were called for from the learned
Additional Sessions Judge, Court No. 9,
Firozabad by the learned Sessions Judge on
which the Presiding Officer concerned
submitted his report contending that the
allegations made by the first informant are
false but since the informant claims to have
has lost confidence in him, he himself is not
inclined to try the aforesaid sessions trials.
Since the High Court has already given
directions twice for expeditious disposal of
the aforesaid trials, preferably within six
months and therefore, he had sit tight over
the matter and did not allow frivolous and
fictitious attempted adjournments made by
the parties.

5. Having heard learned counsel for
the parties and going through the records,
including the comments of the concerned
Presiding Officer, the learned Sessions
Judge opined that the grounds of the
transfer application bear no substance at
all and that deserves to be dismissed but
considering the unwillingness of the
learned Additional Sessions Judge, Court
No. 9, Firozabad, he transferred the
aforesaid session trials from the court of
the concerned Presiding Officer to the
court of the learned Sessions Judge, Court
No. 1, Firozabad to proceed with the case
in accordance with law.

6. Feeling aggrieved, the instant
transfer application has been moved by
accused applicants on the ground that
some of the accused persons are still in
jail for about six years, right since the
year 2007 and in one way or the other the
strategy of the first informant is that the
aforesaid accused should languish in jail
for indefinite period as pre-trial convict
without getting their trials adjudicated in
accordance with law and, therefore, he is
accustomed to file number of transfer
applications, more precisely, six in
numbers, one after the other, as pleaded in
para 11 of the transfer application.
Learned Sessions Judge while allowing
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
the transfer application of the first
informant, has observed in so many words
that the grounds taken by the informant in
his transfer application are false and lacks
substance
still
he
allowed
transfer
application, as stated above. Since the
informant has no faith in any of the courts
in the Firozabad judgeship, therefore, the
aforesaid
sessions
trials
should
be
transferred from Firozabad judgeship to
the nearby judgeships in Uttar Pradesh.
Due to the pressure tactics adopted by
opposite party no. 2 and his supporters
from
the
District
Bar
Association,
Firozabad no advocate of the choice of
the applicants want to come to defend
them, resultantly, the applicants had to
engage the services of advocates from
another district Agra to appear and argue
their case, although, the said advocate
also had to face the ire of opposite party
no. 2 and advocates of Firzoabad. The
session trials had gone to the files of
atleast five Additional Sessions Judges in
the judgeship of Firozabad on the transfer
application made by opposite party no. 2
but in none of those Presiding Officers he
reposed confidence. It is noteworthy that
evidence of some of the witnesses only
have been recorded by the then learned
Additional Sessions Judge, Court No. 5
and
the
evidence
of
remaining
prosecution witnesses and all the defence
witnesses have been recorded by the
learned Additional Sessions Judge, Court
No. 9. The Presiding Officer of the court
of the learned Additional Sessions Judge,
Court No. 5 has already been transferred
to some other Sessions Division.

7. At present only the learned
Additional Sessions Judge, Court No. 9,
Firozabad is there in the judgeship of
Firozabad and all the other Additional
Sessions Judges have been transferred
from the said judgeship in regular course,
therefore, according to them it is in the
fitness of things to transfer all the
aforesaid session trials to some other
judgeship for trial according to law with
strict directions to the Presiding Officer of
the transferee court to dispose of the
session trials within a stipulated time
bound frame.

8. In the counter affidavit filed by
opposite party no. 2, first informant, he
denied that the aforesaid session trials
have been transferred six times earlier,
from one court to another. It has further
been stated that at an earlier occasion, one
of the accused applicant namely; Ashok
Dixit, having a criminal history of 69
criminal
cases,
had
made
Transfer
Application No. 777 of 2008 on the
ground that there was danger to his life in
Firozabad judgeship. He made prayer in
that application to transfer the session
trials from Firozabad judgeship to some
other district but the said transfer
application was dismissed on merits by
this Court and the trial court at Firozabad
was directed to proceed with the matter
on day to day basis and conclude the trial,
preferably within a period of six months
in the year 2011 but till date the trial
could not be concluded.

9. Apart from it, accused applicants
had earlier filed petition under section 482
Cr.P.C.
before
this
Court
and
in
pursuance of the order passed therein, the
first
informant
produced
all
the
prosecution witnesses on the date fixed
and in-as-much 23 prosecution witnesses
have been examined, their statements
under section 313 Cr.P.C. have been
recorded and number of witnesses have
been produced and examined in defence.
The adjournment applications, on one
3 All] Surendra Singh & Ors. Vs. State of U.P. & Anr.
1307
pretext or the other, made by the accused
persons were rejected by the trial court.
Twenty days time was prayed for by the
prosecution for preparation of argument
but the same was rejected by the same
Presiding Officer and the informant had
heard that he could not get justice from
the said court, therefore, he made transfer
application before the learned Sessions
Judge,
who
allowed
his
transfer
application vide order dated 19.02.2012
and thereafter, this transfer application
has been filed in this Court by the accused
applicants on fictitious and frivolous
grounds.

10. The applicants have filed
rejoinder affidavit rebutting the pleadings
made by the informant in his counter
affidavit that he had not filed six transfer
applications, one after the other. The
details of the transfer applications, nature
of proceedings etc; have been mentioned
in paragraph 9 of the rejoinder affidavit
dated 2nd August 2013. Supplementary
rejoinder affidavit has also been filed
agitating the fact that informant had made
six Transfer Applications earlier and got
the Session Trial transferred from one
court to other.

11. Heard learned counsel for the
parties and perused the record.

12. It is not in dispute between the
parties that evidence of prosecution
witnesses, 23 in numbers, and defence
witnesses have already been recorded.
Some of the evidence of the aforesaid
witnesses were recorded by the learned
Additional Sessions Judge, Court No. 5,
Firozabad, who has now been transferred
from the judgeship of Firozabad to some
other judgeship. Rest of the evidence of
the prosecution and defence, major in
portion, have been recorded by the
learned Additional Sessions Judge, Court
No. 9, Firozabad. It is also not in dispute
that the Presiding Officer of the aforesaid
Court No. 9, Firozabad is still presiding
over the same court. It is also not in
dispute that some of the accused persons
are still in jail since the year 2007. This
fact is also not disputed that the
prosecution has already completed its
argument and now the arguments of the
applicants were to be advanced but at this
stage, the first informant, opposite party
no. 2 had filed transfer application before
the learned Sessions Judge concerned.
Learned counsel for the parties do admit
that the said transfer application of the
first informant was not allowed by the
learned Sessions Judge on the allegations
made by him against the Presiding Officer
concerned. Learned counsel for the parties
further conceded that when the first
informant levelled allegations against the
learned Presiding Officer of court No. 9,
Firozabad and comments were called for
from him by the learned Sessions Judge,
he expressed his indifference to decide the
aforesaid session trials. On one hand there
was pressure in the shape of directions
from the High Court, at least twice, to
decide the session trials in question within
six months and on the other hand parties
were not co-operating with the Presiding
Officer concerned on one pretext or the
other.

13. The matter is highly contested.
Parties often adopt lingering tactics on
one pretext or the other and in such a
scenario of facts, it is the common
reaction
of
the
Presiding
Officer
concerned to get rid of such matters,
whenever occasion, if any, arises. When a
transfer application is made against any
Presiding Officer, normally he denies the
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
allegation and yet in the concluding
portion of his comments/reports, in
specific
words,
he
expresses
his
unwillingness to conduct the trial any
further. The present comments/report sent
by the Presiding Officer to the learned
Sessions Judge on the transfer application
made by the first informant, opposite
party no. 2, is not an exception of the
aforesaid general reaction of the Presiding
Officers.

14. The scheme and spirit of the
Code
of
Criminal
Procedure,
1974
appears to be that one who has started a
sessions trial must decide the same in-asmuch as in a criminal trial the impression
gathered by Presiding Officer about the
demeanour of a witness goes a long way
and plays a prominent part in deciding the
trial.

15. The instant sessions trials are
undisputedly part-heard trials of learned
Additional Sessions Judge, Court No. 9,
Firozabad, who had recorded the evidence
of a number of prosecution witnesses and
evidence of all the defence witnesses,
examined accused persons under section
313 Cr.P.C. and heard the arguments of
prosecution and only the arguments of
defence was to be heard by him for
pronouncement of judgement, therefore, it
is in the fitness of things and also the
propriety demands that all the aforesaid
four trials must be decided by him. His
indifference and reluctance to decide the
trials-in-question under the circumstances,
noted above must be given gobye to
ensure justice according to law.

16. To my mind, it would be a
mockery to the judicial system that a
party is given such a latitude to choose
Presiding Officer of his own choice and
then allow the trial court to proceed with
the case.

17. In the totality of the facts and
circumstances of the case, this Court
appears to be under obligation, judicial as
well as supervisory, to see that the session
trials in question be disposed of by the
available present Presiding Officer, who
had got the opportunity of recording the
evidence of prosecution and defence
witnesses and to see their demeanour.
Once the allegations made by the
informant in the transfer application was
found false, bearing no substance at all,
the learned Sessions Judge was not
supposed to allow his transfer application
and recall the aforesaid session trials from
the court of the learned Additional
Sessions Judge, Court No. 9, Firozabad
and transfer it to the court of the learned
Sessions Judge, Court No. 1, Firozabad,
who has neither recorded the evidence of
prosecution and defence witnesses nor
heard the arguments so far.

18. In the result, the transfer order
dated 19.02.2013 passed by the learned
Sessions Judge, Firozabad is, hereby, set
aside.

19. Sessions Trial No. 753 of 2008
(State v Ashok Dixit & others) connected
with Session Trial Nos. 757 of 2008, 758
of 2008 and 759 of 2008 are recalled from
the file of the learned Sessions Judge,
Court No. 1, Firozabad and transferred to
the court of learned Additional Sessions
Judge, Court No. 9, Firozabad, who is
directed to proceed with the trials strictly
in
accordance
with
the
provisions
contained under Section 309 Cr.P.C. by
proceedings day to day and conclude the
trial within a period of thirty days from
the date of receipt of copy of this order.
3 All] Babloo Vs. State of U.P.
1309
Parties are directed to appear thereon
07.10.2013 before the learned trial court.
Registry is directed to communicate copy
of this order within three days to the
learned Sessions Judge concerned as well
as to the concerned trial court for
compliance of the order in letter and
spirit.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.09.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Revision No. 364 of 2006

Babloo

 ...Revisionist
Versus
State of U.P. ...Opp. Party.

Counsel for the Petitioner:
Sri A.K. Dixit

Counsel for the Respondents:
G.A.

Criminal Revision- Claim of juvenile
Justice Act under section 22(5)-based
upon date of birth on school leaving
certificate-ignored-order
not
sustainable-quashed-with
direction
of
fresh consideration.

Held: Para-13 & 14
13. In the instant case, court below has not
considered this aspect regarding the age
mentioned in School Leaving Certificate and
its evidentiary value and has not given any
finding about the same.

14. In view of above discussion and the
reasons mentioned above, this criminal
revision is liable to be allowed and is
hereby by allowed. Impugned order is
quashed. The matter is remanded back
to the Court below to decide the matter
afresh, after giving opportunity to the
revisionist to adduce all such evidence
which he wants to adduce, within a
period of six months.

Case Law discussed:
2013(1) JIC 192; AIR 1965 SC 282; 2002(2)
JIC 984(All.)

(Delivered by Hon'ble Arvind Kumar
Tripathi(II), J.)

1. This criminal revision has been filed
by Babloo challenging the order dated
31.5.2006 passed by Additional Sessions
Judge,
Sitapur
in
Sessions
Trial
No.361/1997(State
Vs.
Babloo)
under
Section 307 IPC, P.S.Maholi, District-
Sitapur, by which the application of the
revisionist under Section 20/49 of Juvenile
Justice (Care and Protection of Children Act,
2000) (hereinafter referred as the Act), was
rejected and the revisionist was not declared
juvenile on the date of occurrence.

2. Heard learned counsel for the
revisionist and learned AGA for the State.

3. It was submitted that learned
Court below has erred in not believing the
School
Leaving
Certificate
of
the
revisionist which shows date of birth to be
12.6.1979. It was also submitted that
learned trial court has wrongly held that
this plea was not taken at the time of
appearance in the Court so it cannot be
taken at the stage of recording of
statement under Section 313 Cr.P.C.

4. In the case of Hari Ram Vs. State
of Rajasthan and Another 2010 (68) ACC
367 Apex Court has held that plea of
juvenile can be raised before any Court at
any stage even after final disposal of a
case.

"Section 7-A makes provision for a
claim of juvenility to be raised before any