Vishwa Raj Singh vs State of U.P.

@DELETEUPPERDATA

Sudhir Agarwal, J.—The application is restored to its original number vide order of date passed on recall application. As requested by learned counsel for the parties, the same is taken up for hearing and is being disposed of finally.

Heard Sri Sanjiv Singh, Advocate for applicant and perused the record.

This is an application filed under Section 407 Cr. P.C. seeking transfer of Criminal Case No. 2772 of 2007, under Sections 323, 504, 506 and 379 IPC from the Court of Chief Judicial Magistrate, Siddharth Nagar to any Competent Court at Varanasi.

It is contended that a matrimonial matter has already been transferred to Varanasi in Transfer Application (Civil) No. 280 of 2012 vide order dated 13.03.2013 on the ground of convenience of wife and the same parity must be applied in the present case.

The submission is thoroughly misconceived. The criminal case is being prosecuted by State. Considerations under Section 24 C.P.C. and 407 Cr. P.C. are not identical.

Power under Section 407 Cr. P.C. can be exercised by this Court where it is made to appear:

(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.

The Court, therefore, can act suo moto or when such an request comes from Court below or on an application made by a party concerned. The conditions, on which the power can be exercised under Section 407 Cr. P.C., are:

(i) fair and impartial inquiry or trial cannot be had;

(ii) some question of law of unusual difficulty is likely to arise;

(iii) an order under Section 407 Cr. P.C. is required by any provision of Code of Criminal Procedure, i.e., Cr. P.C.;

(iv) it will tend to the general convenience of the parties or witnesses;

(v) it is expedient for the ends of justice.

Mere allegations like substantial prejudice, non-availability of congenial atmosphere for a free trial cannot be held the sole ground of transfer. Mere apprehension is not enough unless it is supported with some material. A party, either complainant or the accused should not ordinarily be allowed to have the Forum of his/her own choice. A transfer applicant cannot be allowed to make unfounded charges. A transfer should not be granted on a fancied notion of a litigant. Where the ground for transfer is not substantiated and as such does not exist, the application for transfer should not be allowed. It should not be allowed to help a litigant to choose a Bench of his own choice.

In Vijay Pal and Others Vs. State of Haryana and Another, , the Court said that in absence of any justified reason, it is not proper and legal to exercise power under Section 407 Cr. P.C.

The mere fact that wife is residing presently at Varanasi does not justify transfer of criminal case where State is prosecuting the husband at Siddharth Nagar. No ground for transfer is made out.

Dismissed.