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Rakesh Kumar Mishra @ Laddu Baba vs State Of U.P. And Another on 15 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 79

Case :- TRANSFER APPLICATION (CRIMINAL) No. – 81 of 2019

Applicant :- Rakesh Kumar Mishra @ Laddu Baba

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Nitesh Kumar Singh,Ashutosh Sharma

Counsel for Opposite Party :- G.A.,Gyan Prakash

*****

Hon’ble Ram Krishna Gautam,J.

1. Heard learned counsel for the applicant over this Transfer Application, moved under Section 407 of Code of Criminal Procedure, 1973 (hereinafter, in short, referred to as the ‘SectionCr.P.C.’), by the applicant, Rakesh Kumar Mishra @ Laddu Baba, with a prayer for transferring Criminal Complaint Case No. 1/2016 (Assistant Director, Director of Enforcement Govt. of India, Allahabad Zone vs. Rakesh Mishra Ors.), under Section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter, in short, referred to as the ‘PML Act’), for offence, under Section 3 and, punishable, under Section 4 of the PML Act, arising out of Enforcement Case Information Report No. ECIR/02/VSI/2010, from the court of Sessions/District Judge, Allahabad, designated as Special PML Act Court to the Court of Special Judge, Antic Corruption (Central), C.B.I. Cases at Lucknow or to the Court of Sessions Judge, Lucknow, designated as Special Court, under the PML Act.

2. Learned counsel for the applicant argued that entire transaction of alleged withdrawal of cash by way of fraud and fraudulent cheques has been accused to have occurred at Lucknow and the Sessions Judge is a Designated Special Court, for conducting trial, under the above Act for such type of offences. Besides this, case arising out of same transaction, is pending before the court of CBI Judge, at Lucknow and the accused-applicant, being behind the bar since last three years, and two cases are running at two different places, one at Lucknow and the other at Allahabad, hence, is not in a position to get a fair trial, under above circumstances. Therefore, this case be also transferred to Lucknow in the court of Special Judge, Anti Corruption (Central), CBI Cases, Lucknow, where Case No. 3 of 2009, (State by C.B.I. vs. Paras Nath Verma others), is pending or to the Court of learned Sessions Judge/District Judge (Special Designated Court, under PML Act), at Lucknow or to pass any further order, which this Court deems fit and proper in the facts and circumstances of the case.

3. Learned counsel for the respondent-Directorate of Enforcement, Government of India, has vehemently opposed the Transfer Application on the pretext that this Court is not having jurisdiction to entertain this Transfer Application because the matter is arising out of Anti Corruption Cases of Enforcement Directorate and for this Court No. 65 is competent Court where this case may be taken up. His next argument was that the CBI is a Police Organisation, which conducts criminal investigation in criminal cases, arising out of criminal activities of accused persons for which Special Court of CBI at Lucknow is conducting trial for the chargesheet, filed by the CBI, over which cognizance was taken, whereas, Enforcement Directorate is concerned with financial irregularities and money laundering cases for which complaint cases by the Enforcement Directorate has been filed, which is pending before the Special Designated court, under the SectionPrevention of Money Laundering Act, at Allahabad, which happens to be the Court of Sessions Judge, Allahabad, having jurisdiction over the matter. This Application has been moved, with a prayer for transferring present case, pending at Allahabd to CBI court at Lucknow, just to intermingle facts and hamper the trial because the CBI court, at Lucknow, is having no concern with the present matter, under SectionPrevention of Money Laundering Act, though alternate relief is for transferring this case to the court of Sessions Judge, Lucknow, which is a designated court, under the SectionPrevention of Money Laundering Act, whereas, the territorial jurisdiction regarding offence, alleged to have been reported by North Eastern Railway, Gorakhpur, from whom complaint was initiated of fraud, coupled with money laundering, was committed, was of Special Designated Court, under the SectionPrevention of Money Laundering Act, at Allahabad, over the matter and as such the case cannot be transferred to Lucknow. Thus, this Transfer Application, being without any ground, be rejected.

4. Heard, learned counsel for both sides and gone through materials placed on record, it is apparent that the jurisdiction for entertaining Application, moved under Section 407 of the Cr.P.C., has been assigned to this Court only. So far as jurisdiction of Court No.65 is concerned, it has not been assigned jurisdiction for entertaining Applications, under Section 407 of Cr.P.C.

5. Perusal of the jurisdiction, as shown in the Daily Cause List of the Court, makes it clear that following jurisdiction has been assigned to Court No.65:

“(Court No.65)

Fresh: i. Application under Section 482 Cr.P.C./Criminal Writ/Criminal Writ/Criminal Revision/Matters under SectionArt.227 of the Constitution of India-State cases pertaining to Sectionsection 376 I.P.C. (Sole or with any other offence) (includes listed matters of 2019); ii. Matters pertaining to SectionPrevention of Corruption Act and/or matters investigated by C.B.I. (except criminal appeal); iii. Matters arising out of investigation by Enforcement Directorate; iv. NRHM and Ghaziabad GPF scam; v. Criminal appeal pertaining to Members of Parliament, Members of Legislative Assembly and Members of Legislative Council; Listed: (Order, Admission Hearing) i. Application under Section 482 Cr.P.C. from the year 2013 to 2015, ii. Matters pertaining to SectionPrevention of Corruption Act and/or matters investigated by C.B.I. (except criminal appeal); iii. NRHM and Ghaziabad GPF scam; iv. All matters arising out of investigation by Enforcement Directorate; v. Criminal appeal pertaining to Members of Parliament, Members of Legislative Assembly and Members of Legislative Council:”

6. Whereas jurisdiction to entertain Applications, moved, under Section 407 of Cr.P.C., has been assigned to this Court. The jurisdiction, assigned to this Court, as shown in the Daily Cause List of the Court, is as follows:

“(Court No. 79)

Fresh: i. Criminal appeal under Section 372, Section378 Cr.P.C. Government Appeal; ii. Application under Sections 378, Section372, Section389(2) and Section407 Cr.P.C. Listed: (Order, Admission Hearing) i. Application under Sections 378, Section372, Section389(2) and Section407 Cr.P.C.; ii. Criminal appeal, under Section 372, Section378 Cr.P.C. Government Appeal; iii. Criminal appeal/Jail appeal/Government appeal from the year 2011 to 2018.”

7. Thus, from perusal of jurisdiction, assigned to this Court, as shown in the Daily Cause List of the Court, it is clear that jurisdiction to entertain Application, moved, under Section 407 of Cr.P.C. lies with this Court. The instant Transfer Application, moved under Section 407 of the Cr.P.C., is for considering the grounds taken in the Application for exercising jurisdiction for getting the case transferred from one Court to another Court and it is not having any concern with the merits of the case. Hence, as specific jurisdiction to entertain Applications, moved, under Section 407 of the Cr.P.C., has been assigned to this Court, as such, this Court is competent to decide this Transfer Application.

8. From very perusal of the complaint, annexed with the Transfer Application, it is apparent that a complaint was made by the Office of FA CAO (Construction), Broad Gauge, North Eastern Railway (NER), Gorakhpur, regarding syphoning off Rs.1,84,68,500/-, fraudulently through cheques from the Account of above Railway concern. Subsequently, it was found to be a case of money laundering. Hence, a complaint was filed before the court of Special Judge/Sessions Judge, Allahabad, Designated court, under the SectionPrevention of Money Laundering Act, 2002, and the same was taken into cognisance by the above Court and the same is pending thereat.

9. The main relief, prayed for by the applicant, as has been specified in the rejoinder affidavit, is for transferring of this case from the court of Special Designated Court, under the SectionPrevention of Money Laundering Act, Allahabad to the Special Designated Court at Lucknow. But, admittedly, offence was committed with the office of the FA CAO (Construction), Broad Gauge, North Eastern Railway, Gorakhpur, which was the first complainant and subsequently sequence of offence was detected and since the jurisdiction, regarding above offence, having been committed with above office at Gorakhpur, is vested with the designated court, under the SectionPrevention of Money Laundering Act, at Allahabad, hence, territorial jurisdiction was with the Special Designated Court at Allahabad, whereas, Special Designated Court, at Lucknow, is not having jurisdiction for above territory.

10. Since this Court is deciding the Transfer Application, moved under Section 407 of Cr.P.C., it will be pertinent to refer, Section 407 of the Code of Criminal Procedure, 1973, which reads as follows:

“407. Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the 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 this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order-

(i) that any offence be inquired into or tried by any Court not qualified under Sectionsections 177 to Section185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: 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.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court’ s power of remand under Sectionsection 309.

(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay, by way of compensation, to any person, who has opposed the application, such sum, not exceeding one thousand rupees, as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under Sectionsection 197.”

11. Thus, from perusal of provisions of Section 407 of Cr.P.C., it is clear that a case can be transferred from one criminal court to some other criminal court in case if it is made to appear to the High Court that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto-, however, in the case in hand, no such allegations has been laid or made or caused to appear before this Court against above Designated Court, under the SectionPMLA Act, at Allahabad, to attract this provision.

12. Secondly, a case can be transferred by the High Court in the eventuality that some question of law of unusual difficulty is likely to arise, but unfortunately, no such recital is there in the instant Transfer Application, nor having been pressed or advanced by learned counsel for the applicant, while arguing the case and as such in the absence of any such ground or argument, question of exercising of power under this provision does not arise.

13. Lastly, a case can be transferred by the High Court, in case an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, whereas, no such circumstances arisen here in the instant case for entertaining an Application, moved, under Section 407 of the Cr.P.C. for transfer of the case on this ground because territorial jurisdiction is of Special Designated Court, under the Prevention of Money Laundering Act, at Allahabad, where the trial has proceeded and mere desire of an applicant for getting the case transferred to Lucknow and nothing else is there and, therefore, there is no ground to attract this provision, under Section 407 of Cr.P.C.

14. In view of what has been discussed above, the Transfer Application, being devoid of merits, and without any ground, stands rejected.

Order Date :- 15.10.2019

bgs/

 

 

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