Dismissed

Amrit Lal Gulati v. State of U.P. and Another

Allahabad HC20 Mar 2018TACR/15/2017

Case brief

AI extract

What is this about?

This judgment deals with a Criminal Transfer Application (Judgement) under Section 407 of the Code of Criminal Procedure, wherein the applicant sought transfer of pending cases from Kanpur Nagar to another district due to alleged harassment, threats, and fear of attending court. The High Court Court dismissed the application.

What did the court decide?

The Criminal Transfer Application (No. 15 of 2017) is dismissed as it is devoid of merit and the applicant lacks clean hands.

Amrit Lal Gulati Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 58 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 15 of 2017 Applicant :- Amrit Lal Gulati Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bansh Narain Rai, Adarsh Kumar Counsel for Opposite Party :- G.A.,Ravi Chandra Srivastava

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Hon'ble Ravindra Nath Kakkar,J.

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Heard learned counsel for the applicant as well as learned counsel for the opposite party no. 2 and learned A.G.A. for the State and perused the material on record.

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Applicant has moved this Misc. Transfer Application under Section 407 Cr.P.C. for transferring the complaint case No. 598 of 2016 (Arun Kumar Singh vs. Amrit Lal Gulati and others under Sections 420, 468 IPC pending in the court of Special Chief Judicial Magistrate, Kanpur Nagar and complaint case no. 402 of 2016 (Arun Kumar vs. Amrit Lal Gulati) under Sections 147, 323, 504, 506, 392 IPC, P.S. Raipoorva, District Kanpur Nagar pending in the court of JSCC-I, Kanpur Nagar to any other District in Uttar Pradesh preferably Ghaziabad or Varanasi.

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It is contended on behalf of applicant that in support of present transfer application, an affidavit of Indra Pal has been filed. In para-6 of the affidavit it has been mentioned that JSCC suit was fixed for 5.9.2016. On that day the applicant and his son Indar Gulati had gone to court premises where at about 2 p.m. both, Advocates, namely, Ashok and Arun Kumar alongwith his colleagues Advocates Saurabh Nayan Mishra, Alok Pandey and Amit Singh and others came in the court room when the court was not in session and started beating the applicant and his son Indar Gulati in which the applicant's son received grievous injury in his body and after intervention of several senior advocates, the life of applicants was saved. An application was made to the District Judge, Kanpur Nagar on 13.10.2016 and FIR was also lodged. On 5.9.2016 at PS Kotwali, Kanpur Nagar an FIR was lodged against opposite party no.2 and his brother alongwith Saurabh Mishra and Amit Singh, Advocates under Sections 323, 504, 506 IPC. In order to pressurize the applicant illegally to vacate the shop, respondent no.2 filed a false complaint under Section 156(3) Cr.P.C. on 14.1.2016. Court below treated the above application as a complaint by order dated 27.1.2016 and after recording the statement of

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complainant and his witnesses summoned the applicant under Section 420, 468 Cr.P.C. in which the applicant appeared in Court and was granted bail by order dated 12.9.2016. After filing of eviction suit on 13.1.2012 opposite party no.2 filed complaint case no. 402 of 2016 on 28.9.2015 which was earlier numbered as Complaint Case No.190/2015. After recording the statement of the complainant under Section 200 Cr.P.C. and his witnesses 202 Cr.P.C. summoned the applicant under sections 392, 323, 504, 506 IPC and his son under Sections 120-B/392, 323, 504 IPC by order dated 17.10.2015. In the above case Trial Court has issued non bailable warrants against the applicant and under the threat of Advocates Arun Kumar Singh and Ashok Kumar Singh, the applicant and his son cannot dare to go and appear before the court and pray for grant of bail. Due to issuance of non bailable warrant applicant and his son cannot dare to sit on the shop. If both the abovementioned cases are not transferred to far away from the State of U.P., petitioner cannot do pairvi of their cases and will not be able to get justice from the court.

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In rejoinder affidavit, allegation of beating by opposite party by fists and legs on 23.02.2017 has been stated in para-13 of the affidavit but learned counsel for the opposite party submitted that on 23.2.2017 an adjournment application has been moved in case no. 163 of 2012.

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In para-2 of the supplementary affidavit filed on behalf of applicant it is stated that on 23.02.2017, the applicant could not reach the court as he was beaten by the some unknown persons and threatened by the opposite party to go back from the court campus. Thereafter, the junior counsel Sri Sushil Vajpayee has moved a routine application for adjournment without mentioning the fact of absence of applicant and reasons for his absence as he has not received any instructions from the applicant. Thereafter, the court concerned had adjourned the case on imposing the cost upon the applicant.

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In compliance of the Court's order dated 12.06.2017, learned counsel for the applicant has filed the certified copy of the adjournment application dated 23.02.2017 moved in Case No. 163 of 2012 alongwith supplementary affidavit dated 05.07.2017 but reason of the absence of

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the applicant before the court has not been mentioned in it and also it does not bear the signature of the applicant.

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In para-13 of the rejoinder affidavit filed on behalf of applicant on 28.03.2017 it is stated that on 23.02.2017 when the applicant entered the court premises at 10.35 A.M., he was beaten by opposite party by fists and legs. He was saved with the help of other Advocates who were present there at that time. Applicant has received injuries and was medically treated in U.H.M. Hospital, Kanpur Nagar and advised for X-ray. He tried to register the F.I.R. against the opposite party but the S.O. Concerned has refused to register the same. Thereafter, he has moved an application dated 23.02.2017 before D.G., Lucknow.

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Advocate Arun Kumar Singh has filed his counter affidavit and submitted that present transfer application is totally misconceived and amounts to abuse the process of Court and various allegations made in the transfer application are denied. It is further submitted that applicant has not filed the transfer application with clean hands as true and real facts have been concealed.

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Ground mentioned in the transfer application does not come within the purview of Section 407 Cr.P.C. The discretion given in the Section should be exercised sparingly in justifying the suitable cases only. Deponent opposite party is not an advocate but is a teacher and non applicant Arun Kumar Singh is a practising advocate in Civil Court, Kanpur Nagar. Opposite Party No. 2 and his brother Ashok Kumar Singh, non applicant have filed suit for eviction and recovery of sewer charges against the applicant before the court of District Judge, Kanpur Nagar and the same was numbered as SCC suit no. 163 of 2012. Information has been given to the Court of District Judge on 13.10.2016 after 41 days regarding the alleged incident of 5.9.2016. It is also submitted that the bail application of the accused applicants was allowed on 12.9.2016.

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Learned counsel for the opposite party no. 2 and learned A.G.A. have rebutted the arguments raised on behalf of applicant stating that the ground mentioned in the application for transfer the aforesaid case has no merit as on the one hand applicant put appearance and participated in proceedings by taking bail and on the other hand he has not put his

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appearance before the Court concerned even after issuance of NBW against him. More so, it is an admitted fact that an adjournment application to adjourn the case was moved before the trial court without mentioning the fact of absence of applicant and reasons for his absence and also there is no signature of the applicant in the aforesaid application. Hence, the grounds taken by the applicant are not squarely covered by the provisions relating to transfer of case from one District to another district, therefore, the application is liable to be rejected.

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Having considered the submissions raised by learned counsel for the applicant as well as learned counsel for the opposite party no. 2 and learned A.G.A. for the State and from a bare perusal of the records, I find that in compliance of the Court's order dated 12.06.2017, learned counsel for the applicant has filed the certified copy of the adjournment application dated 23.02.2017 moved in Case No. 163 of 2012 alongwith supplementary affidavit dated 05.07.2017 which does not support the submission raised by learned counsel for the applicant.

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In view of the aforesaid discussion, I am of the view that ground shown cannot be said to be the reasonable ground to transfer the case. The application is devoid of merit and is, accordingly, dismissed.

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Order Date:- 20.03.2018 AKT

Amrit Lal Gulati v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Amrit Lal Gulati v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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