Allowed

Sonam Rai v. State of U.P. and Another

Allahabad HC4 Apr 2023TACR/620/2022

Case brief

AI extract

What is this about?

The High Court allowed a Transfer Application under Section 407 Cr.P.C. moving proceedings from Family Court, Azamgarh, to District Mau. The applicant, a maintenance recipient with a minor child, faced financial constraints and apprehended harassment and physical harm while attending court in Azamgarh. The Court found her apprehension reasonable given her dependence on her father in Mau and lack o

What did the court decide?

Case No. 173 of 2020 under Section 128 Cr.P.C. pending before Principal Judge, Family Court, Azamgarh transferred to Principal Judge, Family Court, Mau for disposal within three months.

Sonam Rai Vs State of U.P. and Another — Service and Employment | Allahabad HC (2023)

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A.F.R.

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Court No. 92

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Case :- TRANSFER APPLICATION (CRIMINAL) No. - 620 of 2022

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Applicant :- Sonam Rai Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kusum Lata Counsel for Opposite Party :- G.A.,Chandra Kumar Rai

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Hon'ble Mohd. Azhar Husain Idrisi,J.

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Heard learned counsel for the revisionist and learned A.G.A. for the State.

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As per office report dated 16.01.2023, notice issued by this Court vide order dated 13.12.2022 has been served upon opposite party no. 2 but despite service of notice, no one has appeared on his behalf. Therefore, the Court is proceeding to decide the case on merits.

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The present transfer application has been moved under Section 407 Cr.P.C. against the opposite party no. 2 Rakesh Rai with prayer to transfer the entire proceedings of Case No. 173 of 2020 (Sonam Rai Vs. Rakesh Rai), under Section 128 Cr.P.C., Police Station Tahabarpur, District Azamgarh, pending before the learned Principal Judge, Family Court, Azamgarh to the court of competent jurisdiction at District Mau.

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Succinctly, the applicant case is that applicant has filed an application under Section 125 Cr.P.C. against the opposite party no. 2 for providing Rs. 25,000/- per month to her and her minor daughter Ruchi as maintenance allowance. This application is registered as Case. No. 442 of 2019 (Sonam Rai and others Vs. Rakesh Rai) in the court of Principal Judge, Family Court, Azamgarh.

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Notices were issued to opposite party but none appeared in the trial court to file objection in the aforesaid proceedings. Ultimately, after considering all the material evidence available on record, learned Principal Judge, Family Court, Azamgarh has allowed the aforesaid application exparte vide order dated 09.12.2020, directing the opposite party to pay Rs. 4,000/- per

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month to the applicant from the date of institution of application. In compliance of the aforesaid order dated 09.12.2020, the opposite party no. 2 has not paid any maintenance allowance till December, 2020 and total amount of Rs. 74,000/- is remained to be paid. Thereafter, the applicant filed an application under Section 128 Cr.P.C. on 16.12.2020 before the court concerned for recovery of balance amount of Rs.74,000/- from the opposite party no. 2, which is still pending. After filing the aforesaid application under Section 128 Cr.P.C., the same was registered as Case No. 173 of 2020 in which the objections of opposite party no. 2 were invited. Later on, recovery warrant has been issued on 17.03.2021. In compliance of the impugned order dated 17.03.2021, the opposite party no. 2 has paid an amount of Rs.25,000/- in the account of the applicant, therefore, recovery warrant was cancelled by learned trial court vide its order dated 18.03.2021. Thereafter the opposite party no. 2 (husband) prayed to pay remaining amount till date. Again recovery warrant was issued against the opposite party no. 2 on 05.08.2022. The applicant is poor lady and she has no source of income and depends upon the income of her father, who also bears the liability of other family members. The applicant has one minor daughter aged about 4 years with her and she cannot attend the court proceedings at District Azamgarh on each and every date so she wants to transfer the entire proceedings at District Mau. Father of the applicant is an old person, who is unable to attend the court on every date with the applicant and in absence of him, the opposite party no. 2 was regularly threatened her when she goes to attend the court proceeding alone. In that circumstances, the life of the applicant is not safe seeing the previous conduct of the opposite party no. 2. She is ready to face trial if the case is transferred to any court at District Mau. Due to fear of the opposite party no. 2 as well as his family members, she do not want to face the trial at District Azamgarh. The opposite party no. 2 has good relation with the anti social elements and he is waiting an occasion to take revenge from the applicant if she

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goes to Azamgarh for doing pairvi of the case in question. The applicant has no source of income and she is not in a position to bear the expenses for doing pairvi of the case pending before the learned Principal Judge, Family Court, Azamgarh. In these circumstances, the entire proceedings of the case pending in the court of Principal Judge, Family Court, Azamgarh may be transferred to the competent court at District Mau for fair trial.

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The applicant is originally resident of village Kothiyar, Police Station Tahabarpur, District Azamgarh. Presently she is resident of Hakikatpura, Police Station Dakshin Tola, Tehsil Maunath Bhanjan, District Mau while the opposite party no. 2 (husband) is resident of village Kothiyar, Police Station Tahabatpur, District Azamgarh.

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Learned A.G.A. vehemently opposed the submissions made by learned counsel for the applicant, but could not dispute the aforesaid facts.

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The instant transfer application has been moved by applicant Sonam Rai under Section 407 Cr.P.C., which deals with transfer of criminal cases by High Court from one district to other district or from one court to another court in the same district. A resume of Section 407 Cr.P.C. may be mentioned as under:-

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Here it is apposite to mention that in view of sub-section (1) of Section 407 Cr.P.C. a case can be transferred, whenever it is made to appear to High Court-

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407. Power of High Court to transfer cases and appeals.

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(1) Whenever it is made to appear to the High Court-

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(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

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(b) that some question of law of unusual difficulty is likely to arise, or

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(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,

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It may order-

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(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

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(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;

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(iii) that any particular case be committed for trial to a Court of Session; or

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(iv) that any particular case or appeal be transferred to and tried before itself.

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(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: 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.

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(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.

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(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7).

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(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.

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(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section

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309.

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(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197.

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There is plethora of cases wherein the Apex court has on several occasions considered the issue of transfer of cases, in different circumstances and after elaborate discussion with reference to the circumstances of each case laid down guidelines in this behalf, which are cited as under:-

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(i) Gurcharan Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418, (ii) Vijay Pal and others Vs. State of Haryana and another, 1999 (9) SCC 67, (iii) Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374, (iv) Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR 2009 SC 1773, (iv) Maneka Sanjay Gandhi Vs. Rani Jethmalani (1979) 4 SCC 167 , (vi) Abdul Nazar Madani Vs. State of Tamil Nadu (2000) 6 SCC 204 , (vii) K.P. Tiwari Vs. State of M.P. 1994 SCC (Cri) 712, (viii) K. Anbazhagan Vs. Superintendent of Police (2004) 3 SCC 767, (ix) Zahira Habibulla H. Sheikh Vs. State of Gujarat (2004) 4 SCC 158, (x) Captain Amarinder Singh Vs. Parkash Singh Badal and others (2009) 6 SCC 260, (xi) Nahar Singh Yadav and another Vs. Union of India and others JT 2010 (12) 641, (xii) Lalu Prasad Vs. State of Jharkhand (2013) 8 SCC 593, (xiii) Amit Agarwal Vs. Atul Gupta 2014 (11) ADJ 414 (All.) and (xiv) Usmangani Adambhai Vahora Vs. State of Gujarat and

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another (2016) 3 SCC 370.

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(i) In Maneka Sanjay Gandhi (Supra) , the Apex Court has observed as under:-

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"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini‐ grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances."

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(ii) In the case of Vijay Pal and others (Supra), the Apex Court has held that in absence of any justified reason, it is not proper and legal to exercise power under Section 407 Cr.P.C.

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(iii) In the cases of Anjali Ashok Sadhwani (Supra) and Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi (Supra), it is held in matrimonial cases the convenience of wife and in particular that she has no one in her family escort her to undertake a long journey, is a good ground for transfer of cases.

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(iv) In Gurcharan Dass Chadha (Supra), the Apex Court held:-

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"13. .....A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The

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Court has further to see whether the apprehension is reasonable or not. To judge the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."

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(v) In Abdul Nazar Madani (Supra) , the Apex Court observed as follows:-

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"7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any Court on even at any place, the appropriate Court may transfer the case to another Court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the Court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."

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(vi) In K.P. Tiwari (Supra) Apex court has held :-

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"4....It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks - more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive."

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(vii) In K. Anbazhagan (Supra), the Apex Court had held as

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follows:-

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"30. Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner."

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(viii) In Zahira Habibulla H. Sheikh (Supra), the Apex court propounded that fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.

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(ix) In the case of Captain Amarinder Singh (Supra) , the Apex Court while dealing with two transfer applications preferred under section 406 of the Code, on the ground that with the change in State Government, the trial was suffering setback due to the influence of the new Chief Minister as also the lack of interest by the Public Prosecutor, has observed in paras 18, 19 and 20 as follows:-

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"18. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether apprehension alleged is a reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.

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19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a

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trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C.

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20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one."

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(x) In the case of Nahar Singh Yadav and another (Supra), the Apex Court has observed as follows:-

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"Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:-

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(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

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(iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses;

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(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and

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(v) existence of some material from which it can be inferred that the some persons are so hostile that they

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are interfering or are likely to interfere either directly or indirectly with the course of justice."

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(xi) In Lalu Prasad (Supra) , Apex court has observed as under:-

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"20. Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent."

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(xii) This Court in case of Amit Agarwal (Supra), considering the scope of transfer in such a matter has held that:-

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"24. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)

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25. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.

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26. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to

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find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice."

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(xiii) The Apex Court in case of Usmangani Adambhai Vahora (Supra), considering the previous judgments of the Supreme Court has held:-

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"Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice."

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On the basis of the law enunciated and guidelines laid down by the Apex Court in various decisions, the legal scenario emerges may be summarized as under:- A free and fair trial sine qua non of Article 21 of the Constitution. It is also established principle of law in dispensation of justice is that justice should not only be done but it should be seen to have been done. If criminal trial is not free and fair, criminal justice system would be at stake shaking the confidence of the public in the system and rule of law. A fair trial means a trial before an impartial judge, a fair prosecutor and atmosphere of the judicial calm. Fair trial also means in which bias or prejudice for or against the party or witness.

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Under Section 407 Cr.P.C. when it is shown that public confidence in the fairness of the trial would be undermined any party can seek transfer of the case within the State. Thus, the court may transfer the case to another court where it feels that fair and proper trial is conducive for deciding a transfer petition, the court has also to see convenience of the parties and

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witnesses to be adduced at trial if also relevant consideration. The convenience of the parties is a misconceived motion of apprehension where the convenience of not only of prosecution, the accused and witness in the larger interest of the society. The apprehension that the applicant will not meet the ends of justice and convenience and availability of legal services, the court may exercise its power of transfer. This is cardinal principle of jurisprudence that although circumstances may be myriad and may vary case to case. The court has to test petitioner's ground for transfer on the touchstone bearing in the mind the rule that normally complainant has right to choose any court having jurisdiction even so the process of justice should not harass the parties and from that angle the court may weigh. The apprehension not receiving justice must be reasonable apprehension based on strong material and not hypothetical merely making vague allegation that there is apprehension oin the mind of the applicant that justice will not be given in a given case and not lame excuse or for delaying tactics.

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To analyse the grounds, facts and circumstances, submissions of learned counsel for the parties and guidelines laid down by the Apex Court, it emerges that at present the applicant is residing in District Mau while the opposite party no. 2 (husband) is resident of District Azamgarh. It is not disputed that both the cases, filed by applicant are pending in the District Azamgarh.

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Learned counsel for the applicant submits that she is a poor lady having no source of income and depends upon the income of her father, who also bears the liability of other family members. The applicant herself has a minor daughter aged about four years. The father of the applicant is an old person who is unable to attend the court on every date with the applicant and in absence of him, the opposite party no. 2 regularly threatened her, when she goes to attend the court alone. Thus, life of the applicant is not safe in view of the previous conduct of the

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opposite party no. 2. Due to fear of opposite party no. 2 as well as his family members, she could not face the trial in District Azamgarh. In these circumstances, there is apprehension to her life keeping in view the previous conduct of opposite party no. 2. The opposite party no. 2 has good relation with anti social elements and he is waiting the occasion to take revenge from the applicant if she goes to Azamgarh for doing pairvi of the case in question. She is also not able to bear the expenses of pairvi of the case and opposite party is not paying the awarded maintenance allowance to her.

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Considering the facts and circumstances of the case and submissions of learned counsel for the parties in the light of guidelines laid down by the Apex court, I find that applicant has filed a maintenance petitioner before the Principal Judge, Family Court, Azamgarh wherein she was granted maintenance allowance. Now she has instituted an application under Section 128 Cr.P.C. for recovery of maintenance allowance. Applicant has no source of income independently. She has a baby of four years who is also dependent upon her. She is totally dependent in all respect on her father who is living presently at District Mau. Although she did not disclose the income of her father nevertheless it is the duty of the opposite party no. 2 maintain the applicant and her child. It has been argued that opposite party no. 2 has paid only Rs. 25,000/- and Rs. 74,000/- is still in arrears towards maintenance. In these circumstances, it is clear that the applicant has no sufficient income to maintain herself, her minor daughter and meet expenses of the litigation. It is axiomatic that in the present days of high inflammation, it is difficult to lead a life without sufficient income. There is another case which has been instituted at District Azamgarh by the applicant under Sections 498-A, 323, 504, 506, 120-B IPC and Section 3/4 Dowry Prohibition Act. Thus, she is living in her parental home due to this matrimonial dispute between both the parties. She has to attend the proceedings at Azamgarh in both the cases. It has been submitted that the father is to look her and

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her daughter after only. It is also submitted that he is an old man and unable to company her on the each and every date fixed at Azamgarh. This compells the applicant to go the court at Azamgarh. Seizing the opportunity of her loneliness in the court, the opposite party no. 2 may mishandle and cause injuries and he even intimidate her life. Although there is no any other proof to substantiate these grounds nevertheless in the affidavit filed in support of transfer application confirm these allegations. Moreover, District Mau and Azamgarh are situated nearby each other. So the cases may conveniently be attended at Mau. Thus, in the opinion of this court apprehension expressed by the applicant is reasonable. In view of the above facts and legal scenario, I am of the view that it is in the interest of justice that the instant transfer application should be allowed.

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Resultantly, the transfer application is allowed. Let the Case No. 173 of 2020 (Sonam Rai Vs. Rakesh Rai), under Section 128 Cr.P.C., Police Station Tahabarpur, District Azamgarh, pending before the learned Principal Judge, Family Cour, Azamgarh be transferred to the Principal Judge, Family Court, Mau for disposal in accordance with law within three months.

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Let the copy of the order be sent to the Principal Judge, Family Court, Mau for necessary action and compliance.

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Order Date :- 04.04.2023 Rmk.

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Digitally signed by :- RAM MURTI KUSHWAHA High Court of Judicature at Allahabad

Sonam Rai v. State of U.P. and Another

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Sonam Rai v. State of U.P. and Another

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