# Tarun Raj Singh v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 1278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-08
- **Case number:** Transfer Application (Criminal) No. 133 of 2020
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarun-raj-singh-v-state-of-u-p-anr-45769
- **Pages:** 8

## Headnote

Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 407 - Transfer of
case permissible only when - reasonable
apprehension that justice will not be
done - however, merely making vague
allegation, without any basis/material
on record that there is an apprehension
in the mind of applicant that justice will
not be done - cannot constitute a
legitimate ground to transfer a case from
one court to another court

Applicant/complainant sought transfer of bail
application from Court of Special Judge SC/ST
- alleging accused persons & concerned
Presiding Officer both are Brahmin by caste,
therefore accused will get relief from that
court - Held - allegations leveled wholly vague
& general in nature - not supported by any
material on record - nothing on record to
indicate that the presiding officer did any act
calculated to create such an apprehension in
the mind of the applicant that applicant would
not get justice from Court where case is
pending (Para 10)

Dismissed.
(E-5)
6 All. Tarun Raj Singh Vs. State of U.P. & Anr. 1279
List of cases cited

## Text

1278 INDIAN LAW REPORTS ALLAHABAD SERIES
account while granting bail to the
opposite party no. 2 / accused. The order
granting bail specifically mentions therein
that as per the charge-sheet there is no
reported criminal antecedent of the
accused. There is no averment whatsoever
that
while
the
investigation
was
continuing the accused has tampered or
was
tampering
with
evidence.
The
charge-sheet has been submitted against
the opposite party no. 2 / accused. The
accused
was
not
arrested
during
investigation and a notice under Section
41 (1) of the Code of Criminal Procedure,
1973
was
served
upon
him.
The
allegations as referred to in paragraph 19
and 20 of the affidavit are vague and
without any corroboration whatsoever.
The same are extracted herein below:-

"19. That accused i.e. (opposite
party no. 02) after having being released on
bail is misusing the liberty of bail and is also
tampering prosecution witnesses.

20. That intention of grant of bail is
not to misuse liberty of bail, while in the
present case accused i.e. (opposite party no.
02) after being released on bail is tampering
First Informant / Applicant to prosecute the
Criminal Case against accused i.e. (opposite
party no. 02)."

12. After hearing the learned counsel for
the parties and perusing the material on
record, in my opinion there is no specific
ground which would warrant interference by
way of cancelling the bail of the opposite
party no. 2 granted by the court below. The
discretion as exercised vide order dated
29.11.2019 is just and proper and not
demanding any interference whatsoever.

13. The present bail cancellation
application is thus devoid of any merit
and is hereby, dismissed.
----------

(2020)06ILR A1278
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Transfer Application (Criminal) No. 133 of
2020

Tarun Raj Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ram Bahadur Singh

Counsel for the Respondents:
A.G.A.

Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 407 - Transfer of
case permissible only when - reasonable
apprehension that justice will not be
done - however, merely making vague
allegation, without any basis/material
on record that there is an apprehension
in the mind of applicant that justice will
not be done - cannot constitute a
legitimate ground to transfer a case from
one court to another court

Applicant/complainant sought transfer of bail
application from Court of Special Judge SC/ST
- alleging accused persons & concerned
Presiding Officer both are Brahmin by caste,
therefore accused will get relief from that
court - Held - allegations leveled wholly vague
& general in nature - not supported by any
material on record - nothing on record to
indicate that the presiding officer did any act
calculated to create such an apprehension in
the mind of the applicant that applicant would
not get justice from Court where case is
pending (Para 10)

Dismissed.
(E-5)
6 All. Tarun Raj Singh Vs. State of U.P. & Anr. 1279
List of cases cited

1. Gurcharan Dass Chadha Vs St. of Raj AIR
1966 SC 1418

2. Maneka Sanjay Gandhi Vs Rani Jethmalani
(1979) 4 SCC 167

3. K.P. Tiwari Vs St. of M.P. 1994 SCC (Cri)
712

4. Abdul Nazar Madani Vs St. of T.N. (2000) 6
SCC 204

5. K. Anbazhagan Vs Superintendent of Police
(2004) 3 SCC 767

6. Zahira Habibulla H. Sheikh Vs St. of Guj
(2004) 4 SCC 158

7. Captain Amarinder Singh Vs Parkash Singh
Badal & ors. (2009) 6 SCC 260

8. Nahar Singh Yadav & anr. Vs U.O.I. & ors.
JT 2010 (12) 641

9. Lalu Prasad Vs St. of Jharkhand (2013) 8
SCC 593

10. Amit Agarwal Vs Atul Gupta 2014 (11) ADJ
414 (All.)

11. Usmangani Adambhai Vahora Vs St. of Guj
& anr. (2016) 3 SCC 370

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Shri Ram Bahadur Singh
learned counsel for the applicant, Shri
N.D. Rai learned Additional Government
Advocate-1st assisted by Shri Virendra
Kumar Maurya learned A.G.A. for the
state of U.P./ opposite party no.1 and
perused the record.

2. This transfer application u/s 407
Cr.P.C. has been moved by applicant with
the prayer to transfer the bail application
No. 693 of 2019 (State Vs. Chandra
Kumar Mishra), under Sections 323, 307,
504, 506 IPC and 3(2)5 SC/ST Act,
Police Station Cantt., District Bareilly
from the court of Special Judge SC/ST
Bareilly to any other competent court of
District court Bareilly.

3. Relevant facts of the case in brief
as mentioned by the applicant in the
present application are that the applicant
is complainant, who has filed complaint
dated 20.05.2016 against opposite party
no.2 (Chandra Kumar Mishra) for the
alleged offence under Sections 323, 325,
307, 357 IPC and 3(2)5 SC/ST Act, on
which opposite party no.2 was summoned
vide order dated 19.04.2018 by Special
Judge, SC/ST Act, Bareilly to face trial.
On 05.10.2019, opposite party no.2 filed
his bail application praying therein to
release him on bail. Thereafter applicant
filed
transfer
application
dated
11.10.2019 before District and Sessions
Judge, Bareilly alleging that accused
persons told the applicant that they are
Brahmin by caste and the concerned
Presiding Officer, who is their distant
relative is also Brahmin by caste,
therefore, they will get the relief from that
court. It is also alleged that the opposite
party no.2 has been spotted on several
occasions by the applicant while coming
out of the Court of the concerned judge
and prayed therein to transfer bail
application of opposite party no.2 from
the court of Special Judge SC/ST Bareilly
to any other competent court. On the
aforesaid transfer application of the
applicant, comment was called from the
concerned
presiding
officer
by
the
District Judge, Bareilly, who in turn
submitted his report mentioning that
apprehension expressed by the applicant
is baseless, imaginary and fabricated.
Neither he has any concern with the
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
accused or complainant nor has any
relation with them. On behalf of opposite
party no.2 oral objection was raised
before the District Judge, Bareilly, who
after giving opportunity of hearing to the
parties concerned rejected the transfer
application (3 ka) of the applicant vide
order dated 20.02.2020. Grounds of
transfer of case as mentioned in transfer
application
are
reproduced
here
in
below:-

"1.
अतभयुक्तगण
सम्बब्लन्धि
िािले के प्राथी से कहिे है तक हि
जाति से ब्राह्मण है और जो जज साहब
एस०सी०/एस०िी कोिग िे है, िो भी
ब्राह्मण है, तजनसे हिारी िूर की
ररश्तेिारी है, तजस कारण हिें इस
न्यायालय से बहुि राहि तिलेगी।

2. सम्बब्लन्धि िािले के प्राथी ने
उक्त
अतभयुक्तगणों
को
एस०सी०/एस०िी० न्यायालय के जज
साहब के चैम्बर से तनकलिे कई बार
िेखा है।

3. प्राथी को एस०सी०/एस०िी०
न्यायालय के जज साहब से तनष्पक्ष न्याय
की कोई उम्मीि नही है, क्योंतक
सम्बब्लन्धि िािले के अतभयुक्तगण की
जज साहब से कािी नजिीकी है।"

4. Learned counsel for the applicant
reiterating the aforesaid allegations submits
that on the said facts, applicant apprehends
that he will not get justice from the court
where the bail application of the opposite
party no.2 is pending. No other submission
has been raised on behalf of the applicant.
Lastly, it is submitted that transfer
application of the applicant is liable to be
allowed.

5. Learned Additional Government
Advocate
countered
the
aforesaid
submissions of learned counsel for the
applicant by contending that the District
Judge, Bareilly has rightly rejected the
transfer application (3 ka) of the applicant
vide order dated 20.02.2020. Except the
oral allegation levelled by the applicant
there is no material on record in support of
allegation levelled by the applicant. It is
also submitted that no detail has been given
by the applicant on how the opposite party
no.2 is related with the concerned presiding
officer. The transfer application has been
moved by the applicant for ulterior motive
on flimsy grounds, therefore same is liable
to be dismissed.

6. 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-

(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 the
code of criminal procedure,or will tend to
the general convenience of the parties or
witness,or is expedient for the ends of
justice.

7. The Apex court has on several
occasions considered the issue of transfer
of cases in different circumstances and
after elaborate and wholesome treatment
laid down guidelines in this regard, which
would be useful to quote here.

(i) In Gurcharan Dass Chadha
Vs. State of Rajasthan AIR 1966 SC
1418,
the
Apex
Court
held:-
6 All. Tarun Raj Singh Vs. State of U.P. & Anr. 1281

"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."

(ii) In Maneka Sanjay Gandhi
Vs. Rani Jethmalani (1979) 4 SCC 167,
the Apex Court has observed as under:-

"2. Assurance of a fair trial is
the first imperative of the dispensation of
justice 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."

(iii) In K.P. Tiwari Vs. State of
M.P. 1994 SCC (Cri) 712 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."

(iv) In Abdul Nazar Madani
Vs. State of Tamil Nadu (2000) 6 SCC
204, 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
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

(v) In K. Anbazhagan Vs.
Superintendent of Police (2004) 3 SCC
767 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."

(vi) In Zahira Habibulla H.
Sheikh Vs. State of Gujarat (2004) 4
SCC 158 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.

(vii) In the case of Captain
Amarinder Singh Vs. Parkash Singh
Badal and others (2009) 6 SCC 260, 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
underSection
407and
anywhere
in
the
country
underSection
406Cr.P.C.
6 All. Tarun Raj Singh Vs. State of U.P. & Anr. 1283

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."

(viii) In the case of Nahar
Singh Yadav and another Vs. Union of
India and others JT 2010 (12) 641, 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 sub-sections (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."

(ix) In Lalu Prasad Vs. State
of Jharkhand (2013) 8 SCC 593, 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
conducted in a fair manner and the
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
administration of justice would be fair
and independent."

(x) This Court in case of Amit
Agarwal Vs. Atul Gupta 2014 (11) ADJ
414 (All.) 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."

(xi) The Apex Court in case of
Usmangani Adambhai Vahora Vs.
State of Gujarat and another (2016) 3
SCC 370 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."

8. In view of dictum and guidelines
laid down by the Apex court, as
mentioned above, this court is also of the
view that the power of transfer of a case
must be exercised meticulously with
precision
under
compelling
circumstances, where on the basis of
material on record it appears to the court
that there is strong reason for doing so
and by not transferring the case there
would be miscarriage of justice. No
universal or hard and fast rules can be
applied for deciding a transfer application
which has always to be decided on the
basis of facts of each case. It is also well
settled that the apprehension concerned,
has to be one which would establish that
justice
will
not
be
done.
The
apprehension of not getting a fair and
impartial justice is required to be
reasonable based on strong material and
6 All. University Book Depot Vs. Amit Mishra 1285
not hypothetical. Merely making vague
allegation that there is an apprehension in
the mind of applicant that justice will not
be done in a given case alone does not
suffice.

9. 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 allegations
leveled by the applicant as mentioned
above are wholly vague and general in
nature, which are not supported by any
material on record. Now a days such kind
of frivolous allegations and triviality are
being used unflinchingly by one party of
a case as a tool to pressurize the presiding
officer to settle its personal score.
Entertaining such kind of frivolous
allegations without any strong material on
record will indirectly cast stigma upon the
concerned Presiding Officer for no fault
of his. Any such attempt made by any
person must be discarded in order to
maintain judicial discipline, otherwise on
each and every step of proceeding either
party will try to hamper the judicial
proceeding adopting different modus
operandi in justice delivery system and it
will very difficult for them to discharge
their judicial function with free mind. In
the opinion of this court apprehension
expressed by the applicant is not
reasonable. There is no basis for the
apprehension of the applicant that he will
not get proper justice. There is nothing on
record to indicate that the presiding
officer has done any act calculated to
create such an apprehension in the mind
of the applicant. Illegitimate apprehension
without any basis/material on record
cannot constitute a legitimate ground to
transfer a case from one court to another
court. The grounds set out by the
applicant do not justify the transfer of
case as prayed by the applicant. I do not
find any good ground to interfere in the
matter. There is no error or illegality in
the order dated 20.02.2020 passed by
District Judge, Bareilly.

10.

Consequently
transfer
application being sans merit stands
dismissed.

11.

Office
is
directed
to
communicate this order to the concerned
court below within two weeks.
----------
(2020)06ILR A1285
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 10 of 2009

University Book Depot ...Revisionist
Versus
Amit Mishra ...Opposite Party

Counsel for the Revisionist:
P.V. Chaudhary, A.S. Chaudhary, Brijesh
Kr. Saxena, Sudhakar Audichya

Counsel for the Opposite Party:
Mohd. Saeed - Ii

Civil
Law
-
U.P.
Urban
Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 20(4) -
Provincial Small Causes Courts Act, 1887
- Section 17 - amount deposited by the
tenant u/s 17 of the Act, 1887 for
setting aside ex-parte decree - could be
taken into account - for relieving the
tenant from liability of eviction under
Sub-section 4 of Section 20 of the Act,
1972 - but even after treating such
amount as one under Section 20 (4), in a