# Ved Prakash v. State of U.P. & Anr

- **Citation:** (2019) 2 ILRA 1042
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-12
- **Case number:** U/S 407 of Cr.P.C. No. 5 of 2019
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-v-state-of-u-p-anr-44551
- **Pages:** 5

## Headnote

A. Indian Penal Code, 1860 - Sections
364/511, 504, 506 & Code of Criminal
Procedure, 1973 - Section 407-Transfer
application
has
been
moved
by
the
applicant- application - rejection - the
principles governing the transfer of criminal
cases from one District to another District -
2 All. Ved Prakash Vs State of U.P. & Anr.
1043
it is implicit under Section 407 of the Cr.P.C.
that a criminal case can be transferred if it
is made to appear that a fair and impartial
inquiry or trial could not be had -
apprehension of not getting a fair trial
should be substantial and not cosmetic -
The transfer of a case from one territorial
jurisdiction to another territorial jurisdiction
is a serious business and the same should
not be ordered at the drop of a hat unless
substantial
compelling
facts
and
circumstances are present. (Para 14 & 15)

Transfer Petition dismissed (E-6)

Precedent followed: -

## Text

1042 INDIAN LAW REPORTS ALLAHABAD SERIES
ordinarily lies against the order of
conviction of such Court."

10. The above proviso is prospective
not retrospective as held by the Hon'ble
Apex Court recently in the judgment of
Mallikarjun
Kodagali
(Dead)
represented
through
Legal
Representatives Vs. State of Karnataka
& Ors. reported in 2018 (2) S.C.Cr.R.
1310.

11. In paragraph 74 of the aforesaid
citation, Hon'ble Apex Court has held as
follows:-

"74. What is significant is that
several High Courts have taken a consistent
view to the effect that the victim of an offence
has a right of appeal under the proviso to
Section 372 of the Cr.P.C. This view is in
consonance with the plain language of the
proviso. But what is more important is that
several High Courts have also taken the view
that the date of the alleged offence has no
relevance to the right of appeal. It has been
held, and we have referred to those decisions
above, that the significant date is the date of
the order of acquittal passed by the Trial
Court. In a sense, the cause of action arises in
favour of the victim of an offence only when
an order of acquittal is passed and if that
happens after 31st December, 2009 the victim
has a right to challenge the acquittal, through
an appeal. Indeed, the right not only extends
to challenging the order of acquittal but also
challenging the conviction of the accused for
a lesser offence or imposing inadequate
compensation. The language of the proviso is
quite explicit, and we should not read nuances
that do not exist in the proviso."

12. The right to appeal is a
substantive right. The right to appeal
given to victim would be prospective and
enforceable
with
effect
from
31st
December 2009 only (Act No. 5 of 2009).
The proviso under Section 372 Cr.P.C.
has not conferred right to the victim
retrospectively as such no right accrue to
the complainant to derive any benefit.

13. Since the issue is not res integra as
such we have not find any merit to entertain
this appeal which is not maintainable as the
judgement of acquittal has been pronounced
prior to the amendment came into force under
Section 372 Cr.P.C. giving right to the victim
to prefer an appeal against the acquittal. The
delay condonation application as well as the
appeal sans any merit are hereby dismissed.
----------

(2019)10ILR A 1042

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2019

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

U/S 407 of Cr.P.C. No. 5 of 2019

Ved Prakash ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Nadeem
Murtaza,
Sri
Shubham
Tripathi

Counsel for the Opposite Parties:
Govt. Advocate, Sri Vijay Kumar Tripathi

A. Indian Penal Code, 1860 - Sections
364/511, 504, 506 & Code of Criminal
Procedure, 1973 - Section 407-Transfer
application
has
been
moved
by
the
applicant- application - rejection - the
principles governing the transfer of criminal
cases from one District to another District -
2 All. Ved Prakash Vs State of U.P. & Anr.
1043
it is implicit under Section 407 of the Cr.P.C.
that a criminal case can be transferred if it
is made to appear that a fair and impartial
inquiry or trial could not be had -
apprehension of not getting a fair trial
should be substantial and not cosmetic -
The transfer of a case from one territorial
jurisdiction to another territorial jurisdiction
is a serious business and the same should
not be ordered at the drop of a hat unless
substantial
compelling
facts
and
circumstances are present. (Para 14 & 15)

Transfer Petition dismissed (E-6)

Precedent followed: -

1. Sarasamma @ Saraswathiyamma Vs St. rep.
by Dy. D.S.P.& ors. (2018) 7 SCC 339

2. Abdul Nazar Madni Vs St. of T.N. & anr.
(2000) 6 SCC 204

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard learned counsel for the
applicant and learned AGA for the State
as well as Shri Vijay Kumar Tripathi for
opposite party no.2 as well as perused the
record.

2. This transfer application has been
moved by the applicant -Ved Prakash
with a prayer to transfer Sessions Trial
No. 370 of 2015 (State Vs. Shesh
Narayan), arising out of case crime no.
2333 of 2008, under Sections 364/511,
504, 506 IPC relating to Police Station
Kotwali, District Sultanpur, pending in
the court of Additional Sessions Judge,
Court No.1, Sultanpur to any other court
of competent jurisdiction within State of
U.P.

3. Learned counsel for the applicant
while referring to the affidavit filed in
support of the transfer application submits
that the applicant is a practicing lawyer of
this Court since 2003 and is a permanent
resident of District Sultanpur but after
enrollment with the Bar Council of U.P.
in the year 2003, he is continuously
residing and practicing at Lucknow. He
regularly visits his paternal home at
village Raniganj, District Sultanpur for
purpose of doing pairvi and giving
evidence in the cases.

4. It is further submitted that
pertaining to the murder of the father of
the applicant a case Crime No. 403 of
1986 under Sections 147,1 48, 149, 302
IPC was registered at Police Station
Kotwali Nagar, District Sultanpur. All
accused persons of this case after trial by
the trial court had been convicted by
judgment and order dated 28.11.1987. In
Appeal also the High Court sustained the
conviction of all the accused persons
except Ram Naresh, vide order dated
27.4,2006 passed in Criminal Appeal No.
724 of 1987.

5. It is further submitted that in year
2001 the nephew of the applicant, namely,
Ravindra Pratap @ Rinku aged about 10
years was kidnapped and murdered, a
criminal case was registered against the
accused persons on an application given
by the brother of the applicant at Police
Station Kotwali Nagar, District Sultanpur.

6. It is next submitted that pertaining
to a property dispute he filed a Writ
Petition No. 863 of 1993 on behalf of his
client, namely, Kalu Ram and an order for
maintaining status-quo was passed by the
Court, however, opposite party no.2,
namely, Shesh Narayan Mishra after
purchasing the land in dispute started
selling the land by carving plots and on
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
being informed about existence of stay
order on 6.9.2008, he (opposite party
no.2) by entering into the house of the
applicant threatened and assaulted him
along with his companions regarding
which an FIR was lodged by the applicant
at Police Station Kotwali Nagar, District
Sultanpur as Case Crime No. 2333 of
2008, under Sections 147, 148, 149, 504,
506, 364 and 511 IPC and the same case
is now pending before the Additional
Sessions Judge, Court No.1, Sultanpur. It
is further alleged that on 14.8.2014 the
elder brother of the applicant, who was an
Advocate, was murdered by assailants
while he was going to Court for pairvi of
a case, pertaining to which Case Crime
No. 1231 of 2014, under Section 302 IPC
was registered at Police Station Kotwali
Nagar, District Sultanpur. It is further
submitted that vide order dated 9.10.2015
passed in Misc. Bench No. 8636 of 2015,
he was provided security for his visits to
Sultanpur and the same is being provided
to the applicant without charging any
costs.

7. It is next submitted that on
23.7.2016 when he (applicant) was
returning from the Court after attending
the above mentioned matter he was
followed by opposite party no.2 and his
other companions, he made a complaint to
D.G. P. (Prosecution) asking for security
and the D.G.P. (Prosecution) directed the
Joint Director (Prosecution) to take
appropriate action, who entered issued an
order dated 3.8.2016 directing the I.G.
Zone, Lucknow to provide appropriate
security to the applicant.

8. It is further alleged that opposite
party no.2 is a history sheeter and he is
indulged in criminal activities and is
threatening the applicant as well as the
witness Kallu to the extent that the
witness Kallu has lost his mental balance
and he is also trying to influence the
applicant.

9. Highlighting the above factual
matrix, learned counsel for the applicant
submits that the above criminal case is at
the stage of recording his evidence and he
hds appeared before the court on various
dates, however, his evidence could not
been recorded. It is further alleged that
allurement of some money is being also
extended to him by opposite party no.2,
therefore, there is no hope of getting fair
trial and justice and the above mentioned
case must be transferred to any other
court of competent jurisdiction within the
State of U.P.

10. Learned counsel for the
applicant
while
substantiating
his
argument
relied
on
Sarasamma
@
Saraswathiyamma Vs. State represented
by Deputy Superintendent of Police and
others, reported in (2018) 7 Supreme
Court Cases 339 and Abdul Nazar Madni
Vs. State of T.N. and another reported in
(2000)6 Supreme Court Cases 204.

11. Learned AGA while opposing
the contention of learned counsel for the
applicant submits that in pursuance of the
order of this Court passed in Misc. Bench
No. 8636 of 2015 dated 9.10.2015
admittedly security is being provided to
the applicant and therefore there is no
need to transfer the case.

12. Learned counsel for opposite
party no.2 submits that so far as other
criminal cases mentioned by learned
counsel for the applicant is concerned the
opposite party no.2 is not having any
concern with them and only instant
2 All. Ved Prakash Vs State of U.P. & Anr.
1045
criminal case is related to the opposite
party no.2 which has been lodged on
wrong and concocted facts. It is further
submitted that nothing as claimed by the
applicant has been done by the opposite
party no.2 and all the allegations are false
and baseless while referring to paragraph
25 of the affidavit filed in support of
transfer application he mentioned that the
facts given in this paragraph of attending
the trial court by the applicant are wrong
and false, as on these dates the case was
not fixed for prosecution evidence.
Therefore the application has been moved
by quoting wrong facts.

13. Having heard learned counsel
for the parties and having perused the
record,
I
find
that
an
application
pertaining tot he incident mentioned in the
transfer application, on the basis of which
transfer of the above mentioned case is
being sought, was given by the applicant
to the Additional Sessions Judge- Ist,
Sultanpur on 1.12.2018. A copy of that
application has been placed as Annexure
No.11 to the affidavit filed in support of
the application and the incident described
therein is alleged to have happened on
30.7.2016. It is only alleged therein that
on that date opposite party no.2 followed
the applicant to a Hotel at Trivedi Ganj
and also that he was staring towards the
applicant. No more overact with regard to
the conduct of opposite party no.2 has
been alleged in that application and a
prayer of only fixing the case only on
Saturday and to take the case at 3.00 P.M.
in the after-noon session has been made.
Another
incident
which
has
been
mentioned in that application is pertaining
to the fact that the opposite party no.2
also approached the brother of the
applicant to settle the dispute. He is also
stated therein that opposite party no.2 is a
hardened criminal and seven criminal
cases are pending against him. Record
further reveals that the applicant earlier
approached this Court and vide order
dated 9.10.2015 passed in Misc. Bench
No. 8636 of 2015 adequate security was
directed to be provided to the applicant
and vide order dated 30.10.2015 of
District Level Committee, constituted to
provide security, an order was passed by
the S.P. Sultanpur to provide adequate
security to the applicant on his coming to
his home town. Apart from this, there is
one more letter written by the Joint
Director (Prosecution), Lucknow dated
3.8.2016 whereby the Inspector General
of Police, Lucknow Zone, was requested
to provide security to the applicant.

14. So far as the principles
governing the transfer of criminal cases
from one District to another District is
concerned it is implicit under Section 407
of the Cr.P.C. that a criminal case can be
transferred if it is made to appear that a
fair and impartial inquiry or trial could
not be had. It is further to be seen that the
apprehension of not getting a fair trial
should be substantial and not cosmetic.
The transfer of a case from one territorial
jurisdiction
to
another
territorial
jurisdiction is a serious business and the
same should not be ordered at the drop of
a hat unless substantial compelling facts
and circumstances are present. The
applicant in his application has mentioned
various dates in paragraph 25 whereon he
stated to have visited the district court,
Sultanpur for the purpose of recording of
his evidence and nothing as apprehended
by him has happened. There is already an
order passed by a Division Bench of this
Court to provide an adequate security to
the applicant and admittedly in one of
such criminal case, which has been tried
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
by a court at Sultanpur, accused persons
have been convicted. So at this juncture,
keeping in view all the facts and
circumstances of the case, I do not find it a
fit case any order pertaining to transfer of
above mentioned criminal case be passed
and therefore the prayer of the applicant
pertaining to the transfer of the criminal
case i.e. Sessions Trial No. 370 of 2015
(State Vs. Shesh Narayan), arising out of
case crime no. 2333 of 2008, under Sections
364/511, 504, 506 IPC relating to Police
Station Kotwali, District Sultanpur, pending
in the court of Additional Sessions Judge,
Court No.1, Sultanpur to any other court of
competent jurisdiction within State of U.P.,
is refused and thereby transfer petition is
dismissed.

15. However, so far as the
apprehension of the applicant with regard
to any incident which may be caused by
opposite party no.2 is concerned Senior
Superintendent of Police, Lucknow and
Superintendent of Police, Sultanpur are
directed to provide adequate security to
the applicant on such dates which have
been fixed for his evidence in Sessions
Trial No. 370 of 2015, arising out of case
crime no. 2333 of 2008, under Sections
364/511, 504, 506 IPC relating to Police
Station Kotwali, District Sultanpur.
----------

(2019)10ILR A 1046

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl Misc. Ist Anticipatory Bail Application
No. 38121 of 2019
Deepak Chugh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Kumar Pandey, Sri Satish Trivedi.

Counsel for the Opposite Parties:
A.G.A.

A. Indian Penal Code, 1860 - Sections
323,
506,
498-A
and
354(a)
and
Protection
of
children
from
sexual
offence (POCSO) Act, 2012-Section7/8application-grant of anticipatory bailrejection- accusation of sexual assault
against father with his own girl, aged
about 13 years- Offence is very heinous-
Hence, bail is rejected.

B. In instant case, accused applicant is
the
father.

He
may
be
having
matrimonial dispute with his wife, but
the victim of this offence is minor girl of
13 years of age. The alleged offence is
committed by victim's own father, who is
her guardian, and under the lap of
whom, she is protected against all world,
but he has sexually assaulted her. (Para
4,5 & 6)

Ist Anticipatory Bail Application rejected
 (E-6)

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

1. This application for grant of
anticipatory bail has been moved by
Deepak Chugh in Case Crime No. 250 of
2019, under Sections 323, 506, 498-A,
354(a) I.P.C. read with Section 7/8
POCSO Act, Police Station Govind
Nagar, District Kanpur Nagar.

2. Learned counsel for applicant
argued that there is a family dispute in
between accused and his wife, who were
married in year 2001. She went with her