Dismissed

Parmeshwar Gorain v. State of U.P.

Allahabad HC26 Nov 2024TACR/694/2024

Case brief

AI extract

What is this about?

A transfer application seeking transfer of a corruption case from a vacant Lucknow court relied on an affidavit claim that a District Judge transfer application was undecided. A District Judge report showed that application had been dismissed for want of representation; the High Court found the claim mischievous, dismissed the application, then waived imposed exemplary cost on acceptance of an unc

What the court decided

AI extract

Parmeshwar Gorain vs State of U.P. — Corruption | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:198073

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Court No. - 80

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Case :- TRANSFER APPLICATION (CRIMINAL) No. - 694 of 2024

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Applicant :- Parmeshwar Gorain Opposite Party :- State of U.P. Counsel for Applicant :- Abhishek Dwivedi Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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Sri Abhishek Dwivedi, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State / opposite party no. 1 are present and have been heard and records perused.

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The present transfer application under Section 447 in Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the applicant Parmeshwar Gorain before this Court with the following prayers :-

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" It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present transfer application and transfer the proceedings of Criminal Case No. 409 of 2015 (State vs. Parmeshwar Gorain) under Section 7, 13(1)d and 13(2) of the Prevention of Corruption Act, 1988, Police Station Kotwali Nagar, District Banda pending before the Court of Prevention of Corruption Court No. 09, Lucknow to any other Judgeship of Prevention of Corruption Court, Lucknow falling within the territorial limits of this Hon'ble Court and / or pass such other order or further direction which this Hon'ble Court may deem fit in the facts and circumstances of the case."

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The affidavit in the present transfer application is of the applicant himself.

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On the last occasion, when the matter was taken on 26.11.2024, an argument was raised by learned counsel for the applicant by placing paragraph 17 of the affidavit in support of the transfer application that the applicant has made an application before the District and Sessions Judge, Lucknow on 29.10.2024 but the same has not been considered and decided till date and no fruitful exercise has been under taken pursuant to the same.

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This Court after hearing the learned counsel for the parties and perusing the said

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paragraph while quoting it passed an order on 26.11.2024 which is as under :-

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"1. Heard Sri Abhishek Dwivedi, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State.

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2. Learned counsel for the applicant prays for and is granted two days time implead the first informant as respondent no.2 in the office.

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3. This is an application for transfer of case within the same judgeship to any other Court on the ground that since 01.05.2023 the said court is vacated. Further while placing para 17 of the affidavit it is submitted that an application for transfer was moved before the District and Sessions Judge, Lucknow on 29.10.2024 but the same has not been considered and decided till date. Para 17 of the affidavit reads as under:

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"17. That the applicant made an application before the District and Sessions, Lucknow on 29.10.2024 but the same has not been considered and decided till and no fruitful exercise has been undertaken pursuant to the same. In this connection true copy of the application dated 29.10.2024 filed by the applicant is being filed herewith and marked as Annexure No. 4 to this affidavit."

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4. Learned counsel for the State prays for and is granted two weeks time to seek instructions in the matter.

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5. Let a report be called for from the District and Sessions Judge, Lucknow regarding the status of the case and the averment in para 17 which is quoted above by the next date.

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6. Let the matter be listed on 18th December, 2024 as fresh."

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This Court had called for status report regarding the case and averments in paragraph no. 17 which was quoted in the said order from the District and Sessions Judge, Lucknow.

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In compliance of the order dated 26.11.2024 of this Court, the office has placed a report of the District Judge, Lucknow dated 16.12.2024 through its report dated 17.12.2024, which is on record.

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Perusal of the report dated 16.12.2024 of the District Judge, Lucknow reveals that a transfer application in the Court of District Judge was preferred by the applicant Parmeshwar Gorain on 30.10.2024 seeking transfer of the case from Special Court (P.C. Act), Court No. 9, Lucknow to some other court stating that the said court is lying vacant. It is further reported that on the date of admission itself i.e. 30.10.2024, no one was present to press the said application for transfer and it was posted for hearing on 13.11.2024 on the point of admission. It is further

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reported that on 13.11.2024 too none was present for the applicant to press the transfer application. The transfer application was dismissed vide order dated 13.11.2024. The orders dated 30.10.2024 and 13.11.2024 have also been enclosed with the report of the District Judge concerned which have been perused and are in consonance of the said report.

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The report, thus, shows that after filing of the transfer application before the District Judge concerned on 30.10.2024, no one appeared to press it on the said date i.e. 30.10.2024 and even on the next date fixed therein i.e. 13.11.2024. The averment thus in paragraph 17 of the affidavit in support of the transfer application is totally ill-founded, mischievous and just to give the case a different colour.

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On countering about the same, learned counsel for the applicant submits that the contents of the said paragraph are on the basis of instructions received by him from the client which are on the basis of records as produced and the said paragraph has been sworn on the basis of records. Annexure-4 to the present transfer application is the said application for transfer dated 29.10.2024 which is along with an affidavit of the said date. The present transfer application has been prepared and sworn on 04.11.2024 which is after the first date before the District Judge concerned i.e. 30.10.2024. Thereafter, the present transfer application was presented for filing in the office on 13.11.2024, which is on the day of dismissal of the said transfer application before the District Judge concerned.

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The order dated 13.11.2024 of the District Judge concerned shows that none was present to press the transfer application. The filing thus, of the present transfer application is wholly uncalled for and can be termed to be mischievous. Parallel remedies were being taken up by the applicant before the District Judge concerned and this court also. Paragraph 17 only states of filing of the said transfer application before the District Judge concerned and the fact that the same has not been decided but the affidavit does not dilate anything further as to what transpired when the said application was taken up in the court.

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Thus, the present transfer application stands dismissed but with an exemplary cost of Rs.5,00,000/ - (Five Lacks) on the applicant for being mischievous in filing the present transfer application for the reasons stated hereinabove. The cost shall be deposited within 30 days before the Allahabad High Court Legal Services Committed for its utilization therein.

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The Registrar General of this Court shall ensure that a report regarding the same is placed on record in the matter and if within 30 days, the cost is not deposited, he shall issue a letter to the District Magistrate concerned for issuing a recovery citation for recovery of the said amount as land revenue from the applicant which the District Magistrate concerned shall do within three weeks and remit the amount to the Registrar General of this Court for utilization as ordered.

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After this order was passed, learned counsel for the applicant submits that the applicant tenders his unqualified apology before the Court and that the cost as imposed on him may be waived since he acted on passing instructions to him on the basis of information and documents provided to him by his counsel. It is further submitted that the applicant shall be cautious in future in not proceeding in such a manner.

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This court thus considering the apology which is unconditional and the assurance on behalf of the applicant as given by his counsel accepts it and recalls the direcion of imposition of cost on him but with a caution to the applicant to not indulge in such acts and activities ever in future and to be vigilant and cautious in matters pertaining to Courts.

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Let a copy of this order be communicated by Registrar (Compliance) of this Court to the District Judge, Lucknow forthwith for information.

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(Samit Gopal,J.)

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Order Date :- 18.12.2024 Manoj

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Digitally signed by :- MANOJ KUMAR YADAV High Court of Judicature at Allahabad

Parmeshwar Gorain v. State of U.P.

Case brief

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Parmeshwar Gorain v. State of U.P.

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