Rahmatullah vs State of U.P. and Others

Virendra Saran, J.—Rahmatullah informant of Crime No. 1013 of 1993 u/s 302. IPC P. S. Kotwali Nagar, Bulandshahr has filed this transfer application for transferring the proceedings of bail application No. 2276 of 1993 moved on behalf of Rais alias Babia and Fazloo (Respondent Nos. 3 and 4 respectively) from the Court of Sri Vijai Vikram Singh Sessions Judge, Bulandshahr to some other Court. Oaf 21-12-1993 Hon''ble Mr. Justice O. P. Pradhan issued notice in this transfer application and also stayed further proceedings of the bail application pending in the Court of the learned Sessions Judge.

I have heard Sri A. B, L. Gaur, learned counsel for applicant, Sri S. P. S. Raghav learned counsel for Respondent nos. 3 and 4 (Rais alias Babia and Fazlor and the learned state counsel. I have also perused the material placed on record.

In this transfer application several allegations have been made against the learned Sessions Judge, Bulandahahr. According to the affidavit filed in support of the transfer application, the learned Sessions Judge by his order dated 27-10-1993 had rejected the first bail application of Respondent No. 3 and 4 and of co-accused Shahid by a detailed order (Vide Annexure 3 to the affidavit). However, just within two weeks of the rejection of bail application the learned Judge allowed the second bail application filed on behalf of Shahid on 11-11-1993. The order granting bail to Shahid has been challenged in Criminal Misc. Case No. 18564 of 1993 in this Court before another Bench which has issued notice to Shahid to show cause as to why the order be not set aside. It is also alleged that on 11-11-1993 there was strike of lawyers and even then bail was granted to Shahid. However, in the counter affidavit it is alleged that counsel for co-accused Shahid did appear and argued-the bail application. In the affidavit it is further alleged that now Respondents nos. 3 and 4 have applied for bail� and on 21-12-1993 learned Sessions Judge has released them on interim bail in a serious offence of murder. It is also mentioned in the affidavit that there are two Bar Associations at Bulandshahr and both Bar Associations have passed resolutions against the learned Sessions Judge. Para 9 of the affidavit reads thus :

That Sri Vijai Vikram Singh District Judge, Bulandshahr among litigants and lawyers of Bulandshahr is having a reputation of deciding cases in the ulterior motive and the Civil Bar Association Bulandshahr as well as, the Collectorate Bar Association Bulandshahr passed boycotting the Court of five Judicial Officers including District Judge on last Friday of each month. A true copy of the resolution is annexed herewith and is marked as Annexure VII.

It is further stated in para 10 of the affidavit that there has been some bargaining with the learned Judge to grant bail to co-accused Shahid.

I have gone through the order dated 27-10-93 by which learned Sessions Judge rejected the bill application of Shahid and Respondents 3 and 4. The order is a well considered order running into 4 pages. I have also gode through the order dated 11-11-1993 granting bail to Shahid. There was hardly any new ground of bail except that there was an affidavit of one witness Rais. In the FIR there are other witnesses namely Rahmatulla, the informant and Arif. The other points had already been considered by the learned Sessions Judge in his order dated 27-11-1993 rejecting bail. The fact that bail has been granted to Shahid so soon after the rejection of the 1st Bail application is, in my opinion sufficient to create a reasonable apprehension in the mind of the applicant that the order was not passed in an even handed manner. Considering the totality of the circumstances of the case I am of the view that it would be in the interest of justice that the proceedings of bail application of Respondent nos. 3 and 4 should be transferred from the Court of the learned Sessions Judge Bulandshahr.

Sri S. P. S. Raghav, learned counsel for Respondent nos. 3 and 4 who has argued the case with great ability has submitted that section 407, Code of Criminal Procedure can not be pressed into service to transfer the proceedings of a bail application. According to Sri Raghav only an enquiry or trial can be transferred u/s 407 Code of Criminal Procedure.

Section 407, Code of Criminal Procedure states as under:

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 OF 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 u/s 177 - 185 (both inclusive), but in other respects competant 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.

(The underlines are mine)

Thus when it appears to the High Court that is expedient in the ends of justice, the High Court has jurisdiction to transfer matters enumerated in clauses (i) to (iv) of section 407(1) Code of Criminal Procedure. The legislature has taken care by using the word "case" in clause (ii) of section 407(1), Code of Criminal Procedure. If a narrow interpretation is given to the word "case" it may lead to injustice and hardship. I am of the view that the word "case" includes a variety of proceedings and is wide enough to include the proceedings of a bail application.

This Court can not remain a mute spectator if it is brought to its notice that a subordinate Court is not imparting justice in an impartial manner. Besides section 407 Code of Criminal Procedure this Court can exercise its jurisdiction under Article 227 of the Constitution in suitable cases to transfer cases from one subordinate Court to another. In a recent case of Badruddin and Party v. State (1992) 1 UP LB EC 639, a Division Bench of this Court transferred a case to another district by exercising suo moto jurisdiction under Article 227 of the Constitution. Hon''ble R. A. Sharma, J. speaking in Bench observed:

Although the Petitioners have not prayed but in view of the facts and circumstances of the case we consider it fit and proper in exercise of our suo moto power under Article 227 of the Constitution of India, to transfer the petitioner''s suit to the neighbouring district Mathura. Power of Superintendence and judicial control conferred on this Court by Article 227 of the constitution is wide enough to include the power to transfer tie case from one Court to another. Such a power can be exercised by this Court suo moto also.

In the premise this Court has jurisdiction to transfer proceedings of a bail application pending, before subordinate courts.

The second limb of Sri Raghav''s submission is that the transfer application is not maintainable in this Court He submitted that the applicants have not approached the learned Sessions Judge for the transfer of the case. He has referred to section 407(2), Code of Criminal Procedure which reads thus :

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.

In my view the proviso will not come in the way of making a transfer application in this Court if the transfer is sought from the Court of Sessions Judge himself Moreover, in the peculiar circumstances of the case I am inclined to transfer the bail proceedings to another district in which only this Court can pass suitable orders.

In the result the transfer application is allowed. The proceedings of Bail application No. 3376 of 1993 pending before Vijai Vikram Singh, learned Sessions Judge, Bulandshahr are transferred to the Court of learned Sessions Judge Meerut for disposal. On the production of a certified copy of this order the learned Sessions Judge shall transmit the record of bail application to the learned District and Sessions Judge, Meerut who shall dispose of the bail application expeditiously. Any observations made by me in this order are only for the purpose of deciding this transfer application and the learned Sessions Judge bearing the'' bail application shall be free to decide the bail application on merits. After deciding the bail application the record of the bail application shall again be transmitted to the Court of learned Sessions Judge Bulandshahr.

A certified copy this order may be supplied within three days.