Ehsan and Others vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard Mr. Manish Tiwary for the applicants, Mr.

Sanjay Srivatava for the Respondent No. 2 and the learned A.G.A. for the State and perused the record.

This is an application for transfer of Session Trial No. 1330 of 2010, State v. Ehsan and Ors. Crime No. 606 of 2010, P.S. Kotwali Nagar, District Bulandshahr from the court of the Ist Additional Sessions Judge, Bulandshahr to any other district.

The grounds of the transfer are that Respondent No. 2 Nadeem Hussain is a practicing advocate and it is alleged that the deceased Iftekhar Hussain was his brother and was also an advocate. The father of the Respondent No. 2 is a well known advocate of Bulandshahr practicing in the Hon''ble Supreme Court, therefore, the Respondent No. 2 and his family members are highly influential and have also influence on the advocates practicing in district courts at Bulandshahr. After the murder of Mr Iftekhar Hussain, Advocate a meeting of the District Bar Association was held on 3.8.2010 to mourn the death of the deceased in which the Bar Association resolved to abstain from work for the day. The Bar Association, vide the resolution dated 4.8.2010 further resolved to abstain from doing any work till the accused of the murder were not arrested. Similar resolutions were passed on 5.8.2010 and 12.8.2010. It was further submitted that due to influence of the Respondent No. 2 and his father No. good lawyer is ready to appear and defend the applicants. Moreover, the applicants'' pairokars are being threatened by the Respondent No. 2 and his aids. It was next submitted that so long as the applicants are not provided services of advocates of their choice, they would not get justice in the trial.

In view of the fact that none of the senior advocates is ready to defend the applicants, therefore, the aforesaid session trial may be transferred to some other district. It was lastly submitted by the learned Counsel for the applicants that Respondent No. 2 and his father have influence not only on the advocates practicing at Bulandshahr but also on the advocates practicing at Ghaziabad, Hapur and Khurja courts, therefore, the case may be transferred to some other place.

This Court vide its order dated 17.3.2011 required the Ist Additional Sessions Judge, Bulandshahr to inform as to whether the applicants were being represented by any counsel or not. The learned Additional Sessions Judge has submitted his report dated 22.3.2011 disclosing therein the names of certain advocates who appeared for the applicants at the stage of bail but none of them is appearing during the trial, therefore, according to the report of the Additional Sessions Judge, the applicants have No. advocate at Bulandshahr, therefore, they are not in a position to defend in a proper manner.

The Apex Court, in the case of Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, 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. Therefore, it is well-settled that there should be an atmosphere of judicial calm to hold free and fair trial. In the case of Maneka Sanjay Gandhi and Another Vs. Rani Jethmalani, availability of easy legal services was also considered to be one of the grounds for transfer. When the Respondent No. 2 and his father are advocates, and the members of the Bar of the Bulandshahr have passed resolution not to appear for and on behalf of the applicants, it can be easily inferred that the applicants will not be able to defend themselves in the courts at Bulandshahr, consequently, a fair trial is not possible in Bulandshahr. As such the transfer of the trial seems to be just and expedient in the interest of justice.

Keeping in view the facts and circumstances of the case and submissions of the learned Counsel for the applicants, Respondent No. 2 and the learned A.G.A. and also the fact that No. advocate is willing to appear for the applicants and conduct their trial at Bulandshahr, it would be just and expedient to transfer the aforesaid session trial to a nearby district so that the applicants may engage one or more advocate of their choice.

The transfer application is allowed.

The Session Trial No. 1330 of 2010, State v. Ehsan and Ors. is transferred from district Bulandshr to district Aligarh for trial in accordance with law. It will be open to the learned Sessions Judge, Aligarh to try the case himself or make it over to some other Additional Sessions Judge for disposal in accordance with law.