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Rajeev Kumar vs State Of U.P. And Another on 15 November, 2016




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 43 
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 218 of 2016
 

 
Applicant :- Rajeev Kumar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Devashish Mitra
 
Counsel for Opposite Party :- G.A.,Atul Kumar
 

 
Hon'ble Karuna Nand Bajpayee,J.

This transfer application under Section 407 of Cr.P.C. has been moved by the applicant with the prayer to transfer the Bail Application No. 1846 of 2016, Ashok Tyagi vs. State of U.P., under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, relating to Case Crime No. 744 of 2016, P.S.- Nai Mandi, District- Muzaffar Nagar pending before the court of Sessions Judge, Muzaffar Nagar to any other district.

Heard Sri Devashish Mitra, learned counsel for the applicant, Sri Atul Kumar, learned counsel for the opposite party no. 2 and learned A.G.A. for the State. Perused the record.

Submission of the counsel for the applicant is that the applicant is the first informant of the case while the opposite party no. 2 is the father-in-law of the deceased, who was the daughter of the first informant. Further submission is that the opposite party no. 2 is a practising lawyer in the same district and his son, who was the husband of the deceased, was also a practising lawyer, but he is now in jail being accused in the case. It has been further submitted that the opposite party no. 2 and his son belong to the community of lawyers and there is enormous pressure which is exerted on the courts on each date as multiple lawyers in a large number mob the court rooms and a kind of show down of strength takes place just to intimidate the judicial functioning and adversely influence the independent dispassionate view of the court. It has also been submitted that in the presence of enormous pressure displayed by the local counsels, the applicant and his counsels can not even place their submissions before the court in a free and fair manner and that is why the case may be transferred to some other district. It has also been submitted that it was only because of undue pressure exerted by the other side that the opposite party no. 2 has already been released on interim bail.

Sri Atul Kumar, who is appearing on behalf of the opposite party no. 2, submits that the apprehensions as have been placed by the applicant’s counsel are factually incorrect as the applicant is being represented in the court by three lawyers in which Sri Julkaran Singh is a Senior Advocate. Further submission is that the other submission made about exerting pressure upon the court is also exaggerated version placed by the counsel and it is just because the opposite party no. 2 happens to be a lawyer who has been falsely implicated, that simply out of natural curiosity and sympathy a large number of his friends and other lawyers appear in the court only to watch the judicial proceedings.

I have considered the submissions raised at the bar and perused the record in the light of the same.

So far as the releasing of accused-opposite party no. 2 on bail as an interim measure is concerned, it cannot be said with certainty that this should be taken as a reflection of judicial mind. Ultimately what view shall be taken by the court while deciding the bail finally, it shall all depend upon the totality of the facts and circumstances of the case. When an accused is released on interim bail it is only in order to avoid any unnecessary incarceration of an accused. But that is by no means to mean that it should be taken as an indication that accused shall or shall not be released on bail. Releasing the accused on interim bail does not betray out any prejudice. Therefore, argument of the counsel in this regard does not impress this Court. So far as the attempt to exert pressure upon the court is concerned, it is true that such type of incidents do come across in court rooms and sometimes it has been reported that just because the other side happens to be a lawyer, attempts were made by the members of his fraternity to hijack the judicial proceedings by assembling in large numbers in the court  and by creating unwarranted noise. So far as the present case is concerned, the very fact that the applicant is being represented by three counsels, gives to some extent an indication that it does not appear to be a case where the applicant has been ostracised completely or is facing some kind of total boycott by lawyers resulting in a situation that he should not expect justice from the court. After perusing the entire record and after considering all the relevant aspects of the matter, this Court does not feel persuaded to transfer this case only on the ground that other side happens to be a lawyer. Our judicial institution is robust enough not to be swayed or influenced by any such trifling parochial reasons. The status of the parties or their profession is hardly relevant for adjudication on the merits of the case and just because the other side is a lawyer, this Court cannot draw any generalized presumption that the Presiding Officer shall not act dispassionately or independently in the matter. Counsel has not been able to show any such material which may indicate that actually in reality the court has not functioned independently or that it has been actually acting under any undue influence exerted by the other side.

Therefore, this transfer application cannot be allowed.

But this Court feels constrained to make certain observations. If during the course of hearing of bail application of the opposite party no. 2, the Presiding Officer, who is hearing the matter, finds that he is not being allowed to hear the matter peacefully or in case if he feels that the applicant’s side and his legal representatives are not being allowed a fair opportunity to present their case and they are being shouted down or bullied by the other side or if the Presiding Officer feels that in any manner whatsoever attempts are being made to influence his just decision or impede the even course of justice directly or indirectly, the court concerned is hereby directed that in such a situation, he shall not proceed further with the hearing of the bail application of the opposite party no. 2 and shall give a long date in the matter after making all such detailed observations in the other-sheet. The court concerned is expected to note down and bring it on record in writing as to how attempts were being made by the other side to ill-influence the even course of justice. In such a situation, if at all it arises, the applicant shall have liberty to move another transfer  application in this regard which shall be decided on the merits of  case again.

With this observation, this application stands disposed off.

Order Date :- 15.11.2016

Naresh

 

 

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