Smt. Shashi Bindra v. State of U.P. and Another

Allahabad HC23 Nov 2023TACR/606/2023

Case brief

AI extract

What is this about?

Allahabad High Court; T.A. (Crl.) 606 of 2023; Neutral Citation 2023:AHC:227285; Sanjay Kumar Pachori, J.; transfer of Session Trial No. 849 of 2006, Section 302 IPC, Kanpur Nagar; Criminal Misc. Transfer Application No. 1190 of 2023 rejected same day as filing; non-compliance with Section 408(3) Cr.P.C. importing Section 407(5) Cr.P.C. (notice to public prosecutor, 24-hour rule); order set aside without merits; remand to Sessions Judge to decide afresh; Cr.P.C. 1973; IPC Section 302.

What did the court decide?

Order dated 17.08.2023 of the Sessions Judge, Kanpur Nagar set aside; matter remanded to the Sessions Judge to decide the transfer application afresh after affording opportunity to the parties. ¶¶17

Smt. Shashi Bindra Vs State of U.P. and Another — Murder and Culpable Homicide | Allahabad HC (2023)

What the court decided

AI extract

Outcome

Order dated 17.08.2023 of the Sessions Judge, Kanpur Nagar set aside; matter remanded to the Sessions Judge to decide the transfer application afresh after affording opportunity to the parties.

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Issue for consideration

Whether the impugned order dated 17.08.2023 passed by the Sessions Judge, Kanpur Nagar was passed in accordance with sub-Section (3) of Section 408 Cr.P.C. (which imports the Section 407(5) requirements of written notice to the public prosecutor and a 24-hour interval before hearing).

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Court's answer

Sub-Section (3) of Section 408 Cr.P.C. applies sub-Section (5) of Section 407 Cr.P.C. to applications to the Sessions Judge for transfer under Section 408 Cr.P.C.

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Ratio / Principle

Under sub-Section (5) of Section 407 Cr.P.C., an accused making a transfer application must give the public prosecutor written notice together with a copy of the grounds, and no order shall be made on the merits unless at least 24 hours have elapsed between the giving of such notice and the hearing of the application.

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Key takeaways

The provision of sub-Section (3) of Section 408 Cr.P.C. was not complied with in the impugned order; this non-compliance is a pure question of law, and therefore the Court decided the transfer application without giving an opportunity of hearing to opposite party no. 2.ratio¶¶15
The transfer application is allowed without going into the merits of the case; the order dated 17.08.2023 is set aside and the matter is remanded to the Sessions Judge to decide the transfer application afresh after affording opportunity to the parties.ratio¶¶16

Detailed headnote1 paragraphs

High Court of Judicature at Allahabad (Sanjay Kumar Pachori, J.; Order Date 23.11.2023) allowed Transfer Application (Criminal) No. 606 of 2023 filed by Smt. Shashi Bindra against the order dated 17.08.2023 of the Sessions Judge, Kanpur Nagar rejecting her Criminal Misc. Transfer Application No. 1190 of 2023 seeking transfer of Session Trial No. 849 of 2006 (Section 302 IPC) to another court of the same judgeship. Held: sub-Section (3) of Section 408 Cr.P.C. applies sub-Section (5) of Section 407 Cr.P.C. to such applications, requiring written notice to the public prosecutor with grounds and an interval of at least 24 hours between notice and hearing before any order on merits; the impugned order, passed the same day as filing, breached this provision. As the breach was a pure question of law, the Court decided the application without hearing opposite party no. 2, set aside the impugned order without going into merits, and remanded the matter to the Sessions Judge to decide afresh after affording opportunity to the parties.

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Neutral Citation No. - 2023:AHC:227285

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Court No. - 83

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Case :- TRANSFER APPLICATION (CRIMINAL) No. - 606 of 2023

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Applicant :- Smt. Shashi Bindra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravikant Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Sri Ravikant Shukla, learned counsel for the applicant and Sri Umesh Chandra Verma, learned A.G.A. for the State are present.

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The present transfer application has been filed to set aside the order dated 17.08.2023 passed by Sessions Judge, Kanpur Nagar in Criminal Misc. Transfer Application No. 1190 of 2023, by which the transfer application has been rejected. The Criminal Misc. (Transfer Application) No. 1190 of 2023 has been filed by the applicant to transfer the Session Trial No. 849 of 2006, under Section 302 IPC to any other court of same judgeship.

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Learned counsel for the applicant submits that the impugned order has been passed without considering the provision of Section 407, 408 (3) of Cr.P.C. It is further submitted that the Session Trial is pending for argument of the case relating to Section 302 IPC. the appellant is an accused in the above noted Session Trial. It is further submitted that the case is related to circumstantial evidence.

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It is further submitted that the order dated 17.08.2023 has been passed on the same day without completing 24 hours of filing of the transfer application without affording an opportunity to the prosecution.

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The transfer application has been filed on 17.08.2023.

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The main question arose in the present transfer application is as to whether the impugned order dated 17.08.2023 has been passed in accordance with sub-Section 3 of Section 408 Cr.P.C.

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Sub-Section (3) of Section 408 Cr.P.C. provides that subSection (5) of Section 407 Cr.P.C. is applying in relation to application to the Session Judge for transfer under Section 408

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Cr.P.C.

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Sub-Section (5) of Section 407 Cr.P.C. provides that every accused person making such application shall give to the public prosecutor notice in writing of the application, together with the copy of the grounds on which it is made; and no order shall be made on the merit of the application unless at least 24 hours have elapsed between the giving of such notice and the hearing of the application.

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The provision of sub-Section (3) of Section 408 Cr.P.C. has not been complied with, which is a pure question of law. Therefore, this transfer application is decided without giving opportunity of hearing to the opposite party no.2.

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In view of the above facts and circumstances of the case, this transfer application is allowed without going through the merit of the case and the order dated 17.08.2023 is set aside and the matter is remanded back to Sessions Judge to decide afresh the transfer application after affording opportunity to the parties.

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The present criminal transfer application is allowed.

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Office is directed to send a certified copy of this order to the Sessions Judge concerned for compliance.

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Order Date :- 23.11.2023

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MAA/-

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Digitally signed by :- MOHAMMAD AZAD ANSARI High Court of Judicature at Allahabad

Smt. Shashi Bindra v. State of U.P. and Another

Case brief

What is this about?

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Smt. Shashi Bindra v. State of U.P. and Another

Case brief

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What the court decided

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