Smt Mithilesh Kumari Vs State of U.P. and Another

Neutral Citation No. - 2024:AHC:112030

Court No. - 86

Case :- TRANSFER APPLICATION (CRIMINAL) No. - 391 of 2024

Applicant :- Smt Mithilesh Kumari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Pati Tiwari,Satya Dheer Singh Jadaun

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Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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This transfer application under section 407 Cr.P.C. has been filed by the applicant with a prayer to allow the instant application and to transfer the S.T. No.53 of 2012 (State of U.P. Vs. Mithlesh Kumari and others) and S.T. No.8 of 2013 (State Vs. Manjul @ Anurag Tiwari and others) arising out Case Crime No.300 of 2007 under Sections 147, 148, 149, 307, 302 IPC, Police Station Dibiyapur, District Auraiya pending in the Court of Additional District & Sessions Judge, Court No.1, Auraiya to any other competent Court of District Auraiya.

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It is submitted by the learned counsel for the applicant that an F.I.R. as Case Crime No.300 of 2007 was lodged on 18.11.2007 by the opposite party no.2 against the applicant and other co-accused persons. After investigation, charge-sheet was submitted and the case was committed to the Court of Sessions being a case exclusively triable by the Sessions Court and it was registered as S.T. No.53 of 2012 (State of U.P. Vs. Mithlesh Kumari and others) under Sections 147, 148, 149, 307, 302 IPC, Police Station Dibiyapur, District Auraiya. It is further submitted that after completion of evidence, the said session trial is pending at the stage of defence evidence at present. It is also submitted that one of the co-accused Kapil Tiwari, who is languishing in jail in this matter, filed a SLP No.3914 of 2023 before the Hon'ble Supreme Court against the bail rejection order wherein direction was given by the Hon'ble Supreme Court to conclude the trial within nine months vide order dated 24.3.2023 and the said order was communicated to the Presiding Officer conducting the trial. When the session trial could not be concluded within the stipulated time,

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an application was moved by the concerned Presiding Officer before the Hon'ble Supreme Court and six months further time was extended for conclusion of the aforesaid session trial. Meanwhile, the Presiding Officer of that Court was annoyed with the accused persons when the status of trial was inquired into by the counsel of co-accused Kapil Tiwari by way of obtaining some question answer. In the meantime, co-accused Kapil Tiwari was granted bail by this Court vide order dated 15.4.2024 which again caused annoyance to the concerned Presiding Officer. It is further submitted that the application to summon defence witness was earlier allowed on Rs.2500/- to be paid as expenses of the witness, but on the subsequent occasion, the same application was allowed on condition that Rs.25,000/- shall be paid to the witness. It is further submitted that the defence witness was summoned on 30.5.2024 whereas no such date was fixed in the session trial. It is further submitted that there are several cuttings in the order-sheet which shows the malafide of the Presiding Officer. It is further submitted that the District & Session Judge, Auraiya without considering the correct legal and factual position rejected the transfer application moved by the applicant vide impugned order dated 13.6.2024. On the aforesaid ground, a prayer has been made to transfer the aforesaid session trial from the Court of Additional District & Sessions Judge, Court No.1, Auraiya to any competent Court at District Court, Auraiya in the interest of justice.

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Per contra, learned A.G.A. opposed the prayer.

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From the perusal of the record, it reveals that the transfer application moved before the Court is misconceived and based on apprehension only. The case in hand was expedited under the orders of the Hon'ble Supreme Court and the Court of Additional District & Sessions Judge, Court No.1, Auraiya was under obligation to decide the aforesaid matter and that was the reason the case which was initially transferred by the same Presiding Officer to the Court of Additional District & Sessions Judge, Court No.3 Auraiya was again recalled to the earlier Court. The ground made in the transfer application that the defence witness was summoned by the Court for a date which was not fixed in the case is totally erroneous and against the record. In fact, it was the summons to the witness which was signed by the Presiding Officer on 30.5.2024 for date fixed 4.6.2024 and defence witness was never summoned for 30.5.2024. A perusal of the complete record particularly the transfer application and the annexures appended with the affidavit clearly reflects that the transfer application is misconceived and based upon wrong facts and on mere

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apprehension. The conduct of the applicant also does not seem to be bonafide as by way of filing this transfer application she is indirectly trying to derail the disposal of the case which is to be decided most expeditiously, as ordered by the Hon'ble Supreme Court. I find no illegality in the impugned order dated 13.6.2024 passed by the District & Sessions Judge, Auraiya which is a reasoned and sound order passed upon the known principles of law.

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The transfer application is accordingly rejected.

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Order Date :- 5.7.2024 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Smt Mithilesh Kumari v. State of U.P. and Another

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