Vibha Tiwari and Others vs State of U.P. and Another

Saroj Bala, J.—This is an application moved u/s 407 Cr. P.C. for the transfer of sessions trial No. 15 of 2009 State v. Shekhar Tiwari and others under Sections 147, 148, 149, 302, 323, 342, 364, 457, 201, 120B, 506, I.P.C. and Section 7 of Criminal Law Amendment Act P.S. Diviyapur District Auraiya to some adjoining district.

Heard Shri Viresh Mishra, learned senior advocate assisted by Shri Birendra Singh and Shri Dilip Kumar, learned Counsel for the applicants, Shri Amrendra Nath Singh, learned Counsel for the complainant, Shri Desh Ratan Chaudhary, learned A.G.A. and have gone through the material on record and the comments of the District and Sessions Judge, Auraiya.

The contention of the applicants is that the deceased being Executive Engineer of Public Works Department, the citizens of small township of Diviyapur and Auraiya resorted to agitation, arson, and violence. The politically motivated persons taking undue advantage of the situation disturbed the public order. Demonstrations were held in the Court compound by the rival political party workers (S.P.). Due to media trial and agitations by rival political party, the case is being given unnecessary importance and coverage in the newspapers depriving the applicant from defending the case. The media having highlighted the matter, the Court is under pressure and it is treating the case as an unusual case. It is alleged that District and Sessions Judge resided at a distance of hardly 50 meters from the house of slain Executive Engineer and his wife was friend of the wife of deceased and both of them were on visiting terms. The wife of the deceased having friendship with the wife of District and Sessions Judge, the applicants, apprehend that they will no get justice. Additional District Judge and C.J.M. reside with their families in the same campus and had affinity with the family of the deceased. The wife of the District and and Sessions Judge was seen at the residence of deceased after the incident and his security guards accompanied the dead body to district Lakhimpur Kheri. The Bar Association of district court Auraiya passed a resolution on 21.2.2009 that no member of the Bar Association will conduct the case on behalf of the applicants. The applicants approached a number of Advocates to conduct the case but they refused to defend them. It is alleged that the officers of district court Auraiya being neighbours and friends of deceased and his family the applicants have serious apprehension of not getting fair and impartial trial. The judicial officers of Auraiya judgeship being residents of same colony in which the incident took place they cannot decide the case impartially on account of their extra judicial knowledge.

The State of U.P. has opposed the transfer application by filing counter affidavit stating that applicant Shekher Tiwari, is sitting M.L.A. of the ruling party, having long criminal history and his involvement in the murder of executive engineer attracted the attention of media but it has no adverse effect upon the trial court. The trial of the case is going on in district court Auraiya without any pressure or prejudice.

Opposing the transfer application the complainant''s son has filed counter affidavit stating that the applicant Vibha Tiwari surrendered on 13.3.2009 after the attachment of property. Co-accused Hoshiyar Singh is still absconding and process under Sections 82/83, Cr. P.C. has been issued against him. The applicant Shekhar Tiwari is a influential person and is enjoying luxurious life in district jail. On 20.3.2009 he created ruckus in district jail after having liquor, and report was lodged by the district administration. The applicant Vibha Tiwari and advocates appearing on her behalf abused and insulted the C.J.M. on 21.3.2009. A criminal misc. writ petition No. 4828 of 2000 was instituted by some of the applicants for quashing the first information report wherein a direction was issued by this Court on 23.1.2009 for conclusion of investigation and trial within six months. The first informant or her family members had no association or relationship with any of judicial officer of district Auraiya. It is denied that the wife of the District and Sessions Judge, Auraiya came to the house of first informant after the murder of her husband. It is denied that security guard provided to the District and Sessions Judge carried the dead body to district Lakhimpur Kheri. It is contended that if the case is transferred to any adjoining district the first informant and witnesses would not be allowed to appear before the Court to depose against the accused persons. The accused persons having their area of operation in districts Etawah, Kanpur and Farukkhabad it will not be in the interest of justice to transfer the case to the adjoining districts. The complainant and other witnesses have apprehension of danger to their life in case they are forced to appear as a witness in these districts.

The comments of the trial Judge reveal that memo of appearance of Shri H. N. Pandey and Shri Chand Mauleshwar Tripathi advocates of district Etawah and ten other advocates have been filed on behalf of accused. He has denied that his wife and wife of deceased were on visiting terms. He has denied his association with the deceased or his family. The District Bar Association has withdrawn the resolution dated 17.3.2009 for not conducting the case on behalf of accused persons.

The transfer of the trial has been sought on the grounds: (i) the deceased being an Executive Engineer, the incident generated wide publicity and is being reported in various newspapers and media; (ii) the holding of demonstration and Dharna by the Samajvadi Party has created such a surcharged atmosphere that there is impossibility of fair and impartial trial; (iii) the deceased being a resident of the officers'' colony, the family members of deceased and judicial officers including the wife of trial Judge were on visiting terms, giving rise to the apprehension that accused will not get justice; (iv) the lawyers of district court Auraiya are not ready to take brief on behalf of the applicants because of resolution of Bar Association.

The impartial and fair trial is a constitutional mandate. Justice should not only be done it should be seen to have been done. The deceased was an Executive Engineer in the Public Works Department. One of the accused is sitting M.L.A. of the ruling party. Partially the incident took place at the residence of deceased. The Sessions Judge Auraiya, other judicial officers, and executive officers reside in the same colony where the incident took place. One of the accused being M.L.A. of the ruling party, the opposition held demonstrations and first information reports were lodged against Ex-M.L.A. Kamlesh Pathak and others. The first informant was summoned for her statement u/s 164, Cr. P.C. by the C.J.M. Auraiya but she refused to appear out of fear and requested that due to security reasons further proceedings be held at district Lakhimpur Kheri or Lucknow. The murder of an Executive Engineer has generated much heat and publicity. The commission of a gruesome incident in a well protected officers colony is a sensitive matter generating the feeling of hatred against the killers. The first informant is apprehending danger to her life in appearing in the Courts at district Auraiya. The applicants have apprehension of not getting fair and impartial trial in district Auraiya. The applicants have prayed for the transfer of the case to Etawah, Kanpur Dehat, Kanpur Nagar, Fatehpur, Banda, Jalaun at Orai, Jhansi, Hamirpur and Allahabad. In paragraph 12 of the counter affidavit it has been stated that the accused persons having their area of operation in district Etawah, Kanpur, Farukkhabad the first informant and witnesses apprehend that they would not be allowed to appear as a witness against them.

While transferring a case from one district to another sessions division the convenience of parties including the witnesses to be produced at the trial is an important aspect. Convenience for the purpose of transfer means the convenience of prosecution, witnesses and accused. In paragraph 6 of the rejoinder affidavit filed on behalf of the applicants some districts have been suggested for transferring the case but no reason has been shown for not transferring it to Lucknow. The learned Counsel for the applicants during the course of argument submitted that Lucknow being the Capital of Uttar Pradesh the rival political parties will create nuisance. The apprehension of applicants about getting a surcharged atmosphere at Lucknow is imaginary. The district Allahabad being situated at a distance of about 400 km. from Auraiya it will not be convenient for the prosecution, witnesses and accused. The convenience of prosecuting agency in a case where there are large number of witnesses has an important bearing. The trial by a Court situated at a distance of about 400 km. from Auraiya would waste the time of public witnesses and their travelling expenses would overburden the State exchequer. It appears that the deceased was a permanent resident of Lakhimpur Kheri and after the incident his wife and children have shifted there. The distance of district Auraiya from Lucknow is 190 km. The applicants belong to district Auraiya. The first informant not being linked to any political party and having lost her husband her security and the security of other witnesses is an important factor. The district Lucknow being centrally located and well connected with trains etc. the prosecution witnesses and accused will face no inconvenience in attending the case there.

In view of what has been discussed above the transfer application is accordingly allowed. The sessions trial No. 15 of 2009 State v. Shekhar Tiwari and others under Sections 147, 148, 149, 323, 342, 457, 364, 302, 201, 120B, 506, I.P.C. and Section 7 Criminal Law Amendment Act, P.S. Diviyapur District Auraiya pending in the Court of Sessions Judge, Auraiya is transferred to the Court of Sessions Judge, Lucknow who may either try the case himself or assign it to any other Additional District and Sessions Judge to decide the case expeditiously more preferably within six months from the date of production of the certified copy or receipt of the copy of this order.

The office is directed to send immediately a copy of this order to the Sessions Judge, Lucknow.