Miss X (Victm /Complainant in Crime No… — Child Sexual Offences (POCSO) | Allahabad HC (2025)

Miss X (Victm /Complainant in Crime No… — Child Sexual Offences (POCSO) | Allahabad HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the Sessions Trial No. 2126 of 2021 (arising out of Case Crime No. 205 of 2021, u/s 376, 323, 109 IPC and Sections 5/6/16 POCSO Act, P.S. Aliganj, Lucknow) should be transferred, as prayed by the victim-applicant, from the Court of Special Judge, P.O.C.S.O. Act, Lucknow to the Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow or to any other Special Judge/district outside Lucknow, notwithstanding that the trial had reached its final (defence-evidence) stage.

Court's answer

The transfer application is founded merely on conjecture and surmise, not on reasonable grounds.

Ratio / Principle

The trial is at its last stage and most of the evidence has already been recorded by the Special Judge, P.O.C.S.O. Act, Lucknow.

Key takeaways

Accordingly, the Sessions Judge, Lucknow rightly sent the trial back to the original Special Judge, P.O.C.S.O. Act, undoing the administrative order dated 17.05.2024 that had shifted it to Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow.ratio¶83
On the above view, the present transfer application is misconceived and stands dismissed.ratio¶85

Detailed headnote1 paragraphs

Allahabad High Court (Lucknow Bench), Rajeev Singh, J. — Transfer Application (Criminal) No. 66 of 2024, delivered 16.01.2025 (reserved 25.11.2024): The minor victim/complainant (Crime No. 205/2021), through her grandmother, prayed for transfer of Sessions Trial No. 2126 of 2021 (Ss. 376, 323, 109 IPC with Ss. 5/6/16 POCSO Act, P.S. Aliganj, Lucknow — 'State Vs. Rajesh Dutt Bajpai and Anr.') from the Special Judge, POCSO Act, Lucknow to POCSO Court No.2, Lucknow (per the administrative order dated 17.05.2024) or to any Special Judge outside Lucknow. The Court DISMISSED the application as misconceived: it rested merely on conjecture and surmise; the trial stood at its last stage with most evidence (including S.313 statements, recorded 11.12.2023) already completed; and the Court endorsed the Sessions Judge's restoration of the case to the original Special Judge after the respondents' S.408 Cr.P.C. application (Crl. Misc. Case No. 637 of 2024), reversing the 17.05.2024 administrative reshuffle of 150 POCSO cases (instant case at serial 99). Counsel's reliance on precedents (incl. Usman Gani Adambhai Vahora (2016) 3 SCC 370; Gurcharan Dass Chadha 1965 SCC OnLine SC 341; Punjab Singh 1982 SCC OnLine All 993; T.S. Surendra Kumar 2005 SCC OnLine Kerala 476) was recorded but the precedents were not individually analysed by the Court.

1

Neutral Citation No. - 2025:AHC-LKO:2570

Reserved on :- 25.11.2024 Delivered on :- 16.01.2025

Court No. - 13

Case :- TRANSFER APPLICATION (CRIMINAL) No. - 66 of 2024

Applicant :- Miss X (Victm /Complainant In Crime No. 205/2021) Thru. Grandmother Mrs. Siddheshwari Mishra Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others Counsel for Applicant :- Vivek Kumar Rai,Gopal Narain Misra,Pratul Pratap Singh,Surya Nath Singh Counsel for Opposite Party :- G.A.,Dwijendra Mishra,Lalta Prasad Misra

Hon'ble Rajeev Singh,J.

1. Heard.

2. The instant transfer application has been filed by the applicant with a prayer to transfer the Sessions Trial No. 2126 of 2021 arising out of Case Crime No. 205 of 2021 u/s 376, 323, 109 I.P.C. and Section 5/6/16 of P.O.C.S.O. Act, Police Station- Aliganj, District- Lucknow tilted as ' State Vs. Rajesh Dutt Bajpai and Anr.' from the Court of Special Judge, P.O.C.S.O. Act, Lucknow to the Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow (as transferred by the Sessions Judge, Lucknow vide order dated 17.05.2024) or before any other Special Judge, P.O.C.S.O. Act, in any other District other than Lucknow.

3. Learned counsel for the applicant submitted that on 29.08.2020, mother and brother of the applicant, namely, Malini Dutt Bajpai, aged about 42 years and Sharv Dutt Bajpai, aged about 17 years, were killed at Bunglow No.1, Vivekanand Marg, Bandariyabagh, Lucknow. As a result, F.I.R. No. 61 of 2020 u/s 302 I.P.C., Police Station- Gautam Palli, Lucknow was lodged by respondent no.3 on 29.08.2020 at 23:57 hours against unknown persons. Thereafter, the applicant was arrested on 30.08.2020 and she was sent for medico legal examination before Five Members' Board of K.G.M.U. The said Board submitted its report on

2

25.09.2020. The applicant was enlarged on bail vide order dated 30.09.2020 passed by Sessions Judge, Lucknow by giving her custody to her father/respondent no.3. The charge-sheet dated 12.02.2021 was submitted by the Investigating Officer against the applicant, which was submitted before Juvenile Justice Board, on which, cognizance was taken on 10.08.2021.

It has further been submitted that on 28.08.2021, the victim was allowed to join the association of her maternal grandfather, then she narrated to him about her victimization done by her father/respondent no.3. As a result, on 23.09.2021, the F.I.R. of the case in question i.e. Case Crime No. 205 of 2021 u/s 376, 323 I.P.C. and 3/4 of P.O.C.S.O. Act was lodged against respondent nos.2 & 3. On 10.12.2021, charge-sheet was submitted by Investigating Officer against respondent nos.2 & 3 in the Special Court and cognizance was taken by the Court concerned and summon was issued. The cognizance order was challenged before this Court in Application u/s 482 Cr.P.C. No. 208 of 2022, but the Court declined to quash the charge-sheet as well as the cognizance order, and a direction was issued that if respondent nos.2 & 3 surrender and furnish personal bond and two sureties each in the like amount to the satisfaction of Court concerned by 18.08.2022, they should be released on bail on the very same day, and after they were admitted to bail, they might move application for discharge, and learned trial Court would consider the same in accordance with law expeditiously.

4. The order dated 10.08.2022 passed by this Court in Application u/s 482 Cr.P.C. No. 208 of 2022 is as under:-

"1. Heard Mr. Lalta Prasad Misra and Mr. Dwijendra Mishra, learned counsels appearing for the applicants, as well as Mr. S.P. Singh, Ms. Aishwarya Mishra and Mr. Rao Narendra Singh, A.G.A., for respondents, and gone through the record.

3

2. By way of this application under Section 482 CrPC, the applicants have prayed for quashing of charge-sheet dated 09.12.2021 filed in Crime/FIR No. 0205 of 2021, under Sections 376 and 323 IPC read with Sections 5 and 6 of the Protection of Children from Sexual Offences Act lodged at Police Station Aliganj, District Lucknow, for quashing of the consequential proceedings initiated at the learned Special Additional Sessions Judge notified under the POCSO Act at the learned Sessions Court, District Lucknow under Sections 376, 323 and 109 IPC read with Sections 5, 6 and 16 of the Protection of Children from Sexual Offences Act on 09.12.2021 and for quashing of the order dated 10.12.2021 passed by the learned Special Judge (POCSO Act), Lucknow.

3. Considering the facts and circumstances of the case and statements of the complainant/victim recorded under Sections 161 and 164 CrPC, I do not find this case to be one where the impugned proceedings can be quashed in exercise of the powers under Section 482 CrPC. However, considering relationship between the applicants and the prosecutrix and the fact that wife and son of applicant no. 1, mother and brother of the complainant, were killed, this Court is of the opinion that if the applicants surrender and furnish personal bonds and two sureties each in the like amount to the satisfaction of the Court concerned by 18.08.2022, they shall be released on bail on the very same day. After the applicants are admitted to bail, they may move application for discharge, and the learned trial Court will consider the same in accordance with law expeditiously.

4. With the aforesaid direction/liberty the application stands disposed of."

5. Learned counsel for the applicant has next submitted that respondent nos.2 & 3 filed Special Leave to Appeal (Crl.) No. 8312 of 2022 before Hon'ble Supreme Court challenging the order dated 10.08.2022. The said Special Leave Petition was dismissed vide order dated 12.09.2022 with the observation that it was made clear that the trial Court might proceed with the matter independently on its own merits in accordance with law.

6. The order dated 12.09.2022 passed by Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 8312 of 2022 is as under:-

4

"After we have heard learned counsel for the petitioners find no reason to interfere in the judgment impugned dated 10.08.2022. The Special Leave Petition is, accordingly, dismissed.

Learned counsel for the petitioners informs that the petitioners are apprehending that because of the later order passed by the Registrar General of the High Court, communicating the order of the High Court pursuant to which the trial court has to proceed on day-to-day basis may cause prejudice to the petitioners while facing trial.

We make it clear that let the Trial Court may proceed with the matter independently on its own merits in accordance with law without being influenced by the observations made by the High Court under the impugned judgment/order, if any. The adequate opportunity shall be provided to the petitioner to place their defence.

Pending application(s), if any, shall stand disposed of."

7. Learned counsel for the applicant has submitted that the respondent nos.2 & 3 were not cooperating in the proceeding pending before learned trial Court, and discharge application filed by them was dismissed on 05.09.2022 and the matter was posted on 06.09.2022 for framing of charge against them. Further, as they did not appear on the date fixed then non bailable warrants were issued against them on 09.09.2022 which were canceled by learned trial Court vide order dated 14.09.2022 on their application and charges were framed against them on 14.09.2022. The statements of P.W.-1, namely, Vijay Kumar Mishra (maternal grandfather/ nana of the applicant) were recorded from 19.09.2022 to 23.09.2022 by learned Special Judge, P.O.C.S.O. Act, Lucknow.

It has further been submitted that due to some incident, the applicant found it difficult to get justice from earlier Court, then she filed transfer application before District and Sessions Judge, Lucknow, which was registered as Crl. Misc. Case No. 934 of 2022 with request to transfer the case to any other Court having competent jurisdiction, but the said application was rejected on 06.10.2022.

5

8. The order dated 06.10.2022 passed by District and Sessions Judge, Lucknow in Crl. Misc. Case No. 934 of 2022 is as under:-

"1. पत्रावलीआजआदेशहेतुनि�यतहै।

2. निवशेषन्यायाधीश ( पॉक्सोऐक्ट ), लख�ऊकेन्यायालयमेंलम्बि#$तसत्रपरीक्षण सं० : 2126/2021 ( मु०अ०सं० : 205/2021 अन्तर्ग,तभा०दं०सं०कीधारा 376, 323 वलैंनिर्गकअपराधोंसे$ालकोंकोसंरक्षणअधिधनि�यम 2012 ( जिजसेएतद्पश्चात्पॉक्सो ऐक्टकहाजायेर्गा ) कीधारा 5/6, था�ाअलीर्गंज , जिजलालख�ऊ ) राज्य$�ामराजेश दत्त$ाजपेयीकेप्रकरणकोउक्तन्यायालयसेनिकसीअन्यन्यायालयमेंअन्तरिरतकरा�े हेतुसंदर् भ ितप्रकरणकीपीनि?ताकीओरसेउसकी�ा�ीद्वारायहस्था�ान्तरणआवेद� पत्रप्रस्तुतनिकयार्गयाहै।

स्था�ान्तरणआवेद�पत्रमेंमुख्यआधारयहलिलयार्गयाहैनिकनिवशेष न्यायाधीशद्वारानिद�ांक 10.12.2021 कोप्रकरणकाप्रसंज्ञा�लिलयेजा�ेके$ादभी अभिभयुक्तकेनिवरूद्धमात्रसम�हीजारीनिकयेर्गयेतथाअभिभयुक्तकेअन्ततःनिद�ांक 17.08.2022 कोउपम्बिस्थतहो�ेपरउसेउसीनिद�जमा�तपररिरहाकरनिदयार्गया। जमा�तआवेद�पत्रकीकोईसूच�ाआवेनिदकाको�हींदीर्गयी।यहभीकहार्गयाहैनिक पॉक्सोऐक्टमेंनिवनिहतप्रावधा�ोंकेअधी�पीनि?ताका$या�एकमही�ेकेभीतरहो जा�ाचानिहए , लेनिक�नि�धा,रिरतउक्तसीमावधिधमेंपीनि?ताका$या�अंनिकत�हींनिकया र्गया।पॉक्सोऐक्टकेअधी�यथासंभवनिवचारणएकवष, केभीतरपूण, होजा�ाचानिहए , लेनिक�नि�धा,रिरतसमयावधिधकेभीतरउसकानिवचारणभीपूरा�हींनिकयार्गयार्गया। अन्ततः , यहकहार्गयाहैनिकउपरोक्तपरिरम्बिस्थधितयोंमेंन्यायनिहतमेंप्रकरणकेनि�ष्पक्ष निवचारणहेतुसत्रपरीक्षणनिकसीअन्यन्यायालयमेंअन्तरिरतनिकयाजाए।

3. स्था�ान्तरणआवेद�पत्रकेसंदभ, मेंसंदर् भ ितनिवशेषन्यायाधीशकीआख्या आहूतकीर्गयी।संदर् भ ितनिवशेषन्यायाधीशद्वाराअप�ीआख्यामेंयहस्पष्टनिकयार्गयाहै निकप्रकरणकेअभिभयुक्तर्गणकीनिर्गरफ्तारीपरदौरा�निववेच�ारोकलर्गायीर्गयीथीऔर अभिभयुक्तर्गणकोजमा�तमा��ीयउच्चन्यायालयद्वारादण्डप्रनिVयासंनिहताकीधारा 482 केअधी�प्राथ,�ापत्रसं० : 208/2022 मेंपारिरतआदेशनिद�ांनिकत 10.08.2022 द्वाराप्रदा�कीर्गयीथी , जिजसमेंयहनि�दWभिशतनिकयार्गयाथानिकअर्गरअभिभयुक्तर्गणनिद�ांक 18.08.2022 तकन्यायालयमेंआत्मसमप,णकरतेहैं , तोउन्हेंउसीनिद�जमा�तपर रिरहानिकयाजाए।यहकहार्गयाहैनिकमा��ीयउच्चन्यायालयकेआदेशोंकेVममेंही निद�ांक 17.08.2022 कोअभिभयुक्तर्गणकेप्रधितभूर्गणकीध�राभिशसुनि�धिश्चतनिकयेजाते समयअभिभयुक्तर्गणकोजमा�तपररिरहानिकयार्गयायहभीकथ�निकयार्गयानिक अभिभयुक्तर्गणकीजमा�तेंमा��ीयउच्चन्यायालयकेआदेशकेVममेंकीर्गयीथीं।निवशेष न्यायाधीश�ेअप�ीआख्यामेंयहभीस्पष्टनिकयाहैनिकमा��ीयउच्चन्यायालयद्वारा प्रकरणकीशीघ्रसु�वायीकेआदेशनिकयेजा�ेपरप्रकरणमेंन्यायालयद्वारास#यक

6

प्रयासनिकयाजारहाहैऔरअन्ततःयहकहार्गयाहैनिकयनिदप्रकरणनिकसीअन्य न्यायालयमेंअन्तरिरतनिकयाजाताहै , तोउन्हेंकोईआपलित्त�हींहै।

4. प्रस्तुतस्था�ान्तरणआवेद�पत्रपरतक, प्रस्तुतकर�ेहेतुपूव, नि�यतधितभिथमें आवेनिदकाकीओरसेकोईउपम्बिस्थत�हींहुआ।सदैवनिवपक्षीकीओरसेजिजला शासकीयअधिधवक्ता , फौजदारीकोसु�ा।मै�ेपत्रावलीकास#यकअवलोक�निकया।

5. पीठासी�अधिधकारीकीआख्यावपत्रावलीपरआवेनिदकाकीओरसेही उपलब्धकरायीर्गयीदण्डप्रनिVयासंनिहताकीधारा 482 केअधी�केस�ं० :208/2022 केअवलोक�सेप्रकटहोताहैनिकमा��ीयउच्चन्यायालयद्वाराअन्ततःयहआदेश पारिरतनिकयार्गयानिक "........ this Court is of the opinion that if the applicants surrender and furnish personal bonds and two sureties each in the like amount to the satisfaction of the Court concerned by 18.08.2022, they shall be released on bail on the very same day. After the applicants are admitted to bail, they may move application for discharge, and the learned trial Court will consider the same in accordance with law expeditiously......"

वस्तुतःउपरोक्तपीठासी�अधिधकारीद्वाराअप�ीआख्यामेंस्पष्टनिकयार्गयाहै निकउपरोक्तआदेशकेVममेंहीप्रधितभूकीध�राभिशउ�केद्वारासुनि�धिश्चतकीर्गयी। पत्रावलीपरमा��ीयउच्चन्यायालयकापत्रांकसं० : 8545/ एडनिम� ( ई -2) सेक्श� / इलाहा$ादनिद�ांनिकत 15.07.2022 भीआवेनिदकाद्वाराउपलब्धकरायार्गयाहै , जिजसमें मा��ीयउच्चन्यायालयकेद्वारापारिरतआदेशकासंदभ, लिलयार्गयाह , जिजसमेंयह उजि^लिखतनिकयार्गयाहैनिक "..... The Ld. District & Sessions Judge Lucknow be directed to impress upon the concerned Presiding Officer to conduct day to day hearing of the trial of Case Crime No. 205 of 2021, Criminal Case No. 170 of 2021, Sessions trial No. 2126 of 2021 u/s 376, 323, 109 IPC and Sections 5, 6, 16 of the POCSO Act and decide the case expeditiously in the light of directions issued by Hon'ble Court vide letter No. 11904/ Admin E-2 Section/ Allahabad/ dated 27.09.2021 and letter No. 9162/ Admin E-2 Section/ Allahabad / dated 15.10.2020..."

उपरोक्तसमस्ततथ्योंकेआलोकमेंस्था�ान्तरणआवेद�पत्रमेंप्रस्तुतआधार पया,प्त�हींहै।स्था�ान्तरणआवेद�पत्रतदैवनि�रस्तहो�ेयोग्यहै।

आदेश

7

स्था�ान्तरणआवेद�पत्रनि�रस्तनिकयाजाताहै।स#$म्बिन्धतपीठासी� अधिधकारीसेअपेधिक्षतहैनिकमा��ीयउच्चन्यायालयद्वारापारिरतआदेशवनिवनिहतनिवधिध एवंनि�यमोंकेअधी�प्रकरणकायथाशीघ्रनि�स्तारणकर�ासुनि�धिश्चतकरें। "

9. Learned counsel for the applicant has submitted that that deposition of the applicant was recorded before learned trial Court as P.W.-2 on 30.09.2022 and she was cross-examined on 01.10.2022, 06.10.2022, 07.10.2022 and 3.11.2022.

It has further been submitted that thereafter, earlier Presiding Officer was transferred in the first week of December, 2022 and then remaining cross-examination of the victim was conducted on 05.01.2023 and 12.01.2023. Further, statements of other witnesses i.e. P.W.-3 (Smt. Siddheshwari Mishra/ nani ), P.W.-4 (Ms. Renu, Police Constable), P.W.-5 (Investigating Officer, namely, Smt. Sakeena Khan) were also recorded on 17.10.2023. However, respondent nos.2 & 3 were regularly creating hindrance in the trial by filing frivolous applications.

It has next been submitted that as per the provisions of Section 35 of P.O.C.S.O. Act, the trial is to be concluded within a period of one year from the date of taking cognizance, but more than two and a half years have already been passed. The respondent nos.2 & 3 were pressurising the applicant to withdraw the prosecution of the case in question, but as she refused for the same, respondent no.3 lodged an F.I.R. bearing Case Crime No. 401 of 2023 u/s 193, 419, 420, 467, 468, 471, 120-B I.P.C. on 01.07.2023 at Police Station- Gomti Nagar, District- Lucknow against the applicant, her maternal grandfather/ nana , her maternal grandmother/ nani and her aunt/ mausi.

10. Relevant portion of the F.I.R. No. 401 of 2023 (supra) is as under:-

" �कलतहरीरनिहन्दीवादीटाइपशुदा .. सेवामें , श्रीमा�पुलिलसउपआयुक्त ( पूवc ) पुलिलस

कनिमश�रेटलख�ऊ।महोदय , नि�वेद�हैनिकमैंराजेशदत्त$ाजपेईपुत्रस्वरावेन्द्रदत्त $ाजपेईनि� 0 TV-16, रेल्वेआनिफसस, ए�क्लेव , सै�मार् ट ि�मार्ग, चाणक्यपुरी , �ईनिद^ी काहूँ।मेरीअवयस्कपुत्रीदीर्घ ा ,क्षीदत्त$ाजपेईउफ, शवाjर्गी$ाजपेईजिजसकीउम्रलर्गभर्ग

8

16 वष, है।मेरीउपरोक्तपुत्री�ेअप�ीमाँयानि�मेरीपत्�ीमालिल�ीदत्त$ाजपेईएवंअप�े भाईयानि�निकमेरेपुत्रशव, दत्त$ाजपेईकीनिद�ांक 29.08.2020 कोहत्याकरदीथी जिजसकी FIR उसीनिद�मैं�ेथा�ार्गौतमप^ीमेंलिलखाईथीजोनिकमुकदमाअपराध संख्या 61/2020 हैएवंवत,मा�में , उपरोक्तमुकदमामा��ीयन्यायालयमेंनिवचाराधी� है।इसमुकदमेमेंमेरी$ेटीइकलौतीअभिभयुक्तहैऔरपुलिलस�ेइसमुकदमेमेंउसके लिखलाफआरोपपत्रन्यायालयमेंदालिखलकरनिदयाहै।मेरी$ेटीमुकदमेमेंनिर्गरफ्तारहुई थीएवंमा��ीयन्यायालयसेउसकीजमा�तमेंमैं�ेपैरोकारीकीऔरमैं�ेहीउसकी जमा�तपरशपथपत्रनिदयाएवंमा��ीयन्यायालय�ेकुछशतm केसाथएवंकुछनि�दWशों केसाथमेरीकस्टडीमेंमेरीपुत्रीकोरिरहानिकयाथा।मेरी$ेटीकेरिरहाहो�ेकेपश्चातमेरी $ेटीके�ा�ानिवजयकुमारनिमश्राएवं�ा�ीजिस‌द्धेश्वरीनिमश्रा ( नि�वासीर्गण 105, एम्बिल्डको ग्रीन्स , फ�मालकेसमीप , र्गोमती�र्गर , लख�ऊएवं 2/7, नित्रवेणी�र्गर , लख�ऊ मो$ाइल� 0 9457623272 एवं 7985044040) जरूरतसेज्यादामेरी$ेटीसे�जदीकी $ढ़ा�ेलर्गेऔरउसकोमेरेलिखलाफ$रर्गला�ेलर्गे।इ�लोर्गों�ेमेरेऊपरकाफीद$ाव $�ायानिक$ेटीकापासपोट, �ए�ामसे$�जाएलेनिक�मेरेम�ाकर�ेपरनिकअभी इसकेऊपरहत्याकामुकदमाहैइसलिलएपासपोट, �हीं$�सकताजिजसपरयेलोर्गप्राथc सेकाफी�ाराजभीहुए।उसकेपश्चातवेलोर्गकुछसमयकेलिलएमेरी$ेटीकोअप�ेपास रख�ेकेलिलएनिद^ीसेनित्रवेणी�र्गर , लख�ऊम्बिस्थतर्घारलेर्गएजहाँउ�की$?ी$ेटी यानि�मेरीपुत्रीकीमौसीशालिल�ीदीधिक्षतजोनिकअमेरिरकामेंरहतीहैपरअक्सरइंधिडया आतीजातीरहतीहैवहभीआकरमेरी$ेटीकोमेरेसास - ससुरकेसाथनिमलकरमेरे लिखलाफ$रर्गला�ेलर्गीऔरउसको$हलाफुसलाकरमेरेऊपरर्गलतऔरझूठेआरोप लर्गवाकरउसकोअप�ेसाथरखलिलया।मेरी$ेटीकाआधारकाड, �ं$र 494309075664 हैजोनिकनिद^ीकेपतेकाहैजिजसमेमेरामो 0 � 0 9564660000 दज, हैऔरमेरी$ेटीकापासपोट, जिजसका�ं$र S5429712 हैजोनिकमेरेपाससुरधिक्षतहै। अभीकुछनिद�पहलेमुझेपताचलानिकमेरी$ेटीके�ा�ानिवजयकुमारनिमश्रा , �ा�ी जिसद्देश्वरीनिमश्राएवंमेरी$ेटीकीमौसीशालिल�ीदीधिक्षत�ेनिमलकरकुछकूटरधिचत दस्तावेजतैयारकरायेनिफरउन्हों�ेमेरी$ेटीकेआधारकाड, केपुरा�ेपतेऔरमो$ाइल �#$रको$दलकरडुप्लीकेटआधारकाड, $�वायातथाउसआधारकाड, केचलते उन्हों�ेपासपोट, आनिफसलख�ऊपरएक�यापासपोट, अप्लाईनिकयाऔरउस पासपोट, मेंउन्हों�े$ेटीद्वारानिकएर्गएदोहरेहत्याकांडकीजा�कारीकोजा�$ूझकर छुपायातथार्गलतऔरझूठेकार्गजलर्गाकरकेमेरी$ेटीकाएक�यापासपोट, $�वा लिलयाहैजिजसका�ं$र W 0163344 है।यह�यापासपोट, इसलिलएहाजिसलनिकयार्गयानिक निकसीतरहमेरी$ेटीइसपासपोट, केजरिरएभारतसेभार्गजाएऔरउसकेऊपरजो मुकदमाअप�ीमांऔरभाईकीहत्याकाचलरहाहैउसकावहसाम�ा�ाकरेऔर सजासे$चजाए।इसपूरेप्रकरणमेंमेरी$ेटीके�ा�ानिवजयकुमारनिमश्रा , उ�कीपत्�ी जिसद्धेश्वरीनिमश्राऔरमेरी$ेटीकीमौसीशालिल�ीदीधिक्षतपूरीतरहसेशानिमलहैइन्हीं ती�ों�ेझूठे , र्गलतऔरकूटरधिचतदस्तावेजतैयारकरकेमेरी$ेटीका�याफजc आधार काड, $�वायाएवंपहलावैधपासपोट, उपलब्धहो�ेके$ावजूदभीउसकोछुपातेहुए

9

पासपोट, आवेद�फाम, मेर्गलततथाझूठेतथ्यलिलखकरके�यापासपोट, हाजिसलनिकया। उसपासपोट, आवेद�पत्रमेंमेरी$ेटीकेऊपरअप�ीमांऔरभाईकीहत्याकाजो मुकदमाचलरहाहैइसके$ारेमेंजा�कारीपूण,तःछुपाईर्गईऔरनिकसीतरहपुलिलस वेरिरनिफकेश�को$चातेहुए�यापासपोट, $�वालिलयार्गयाहै।अतःश्रीमा�जीसेप्राथ,�ा हैनिकजिसद्देश्वरीनिमश्रा , शालिल�ीदीधिक्षतएवंनिवजयकुमारनिमश्राकोझूठेएवंर्गलततथ्यके आधारपरकूटरधिचतदस्तावेजतैयारकर�ेएवंपासपोट, फाम, मेंदोहरेहत्याकांडकी जा�कारीछुपा�ेकेजुम, मेंसुसंर्गतधाराओंमेंमुकदमादज, करउपरोक्तकेनिवरुद्ध निवधिधसंर्गतत्वरिरतकाय,वाहीकर�ेकाकष्टकरेंतानिकदीर्घ ा ,क्षीदत्त$ाजपेईउफ, शवाjर्गी $ाजपेईनिवदेशपलाय�करदोहरेहत्याकांडकेप्रकरणकीकाय,वाहीसे$च�सके। महा�कृपाहोर्गी।निद�ांक 19.05-2023 प्राथc ह०अपठ�ीयराजेशदत्त$ाजपेईपुत्रस्व . रावेन्द्रदत्त$ाजपेईनि� 0- TV-16, रेल्वेआनिफसस, ए�क्लेव , सै�मार् ट ि�मार्ग, चाणक्यपुरी , �ईनिद^ीमो० -9717641277 | CA/DCP(E)/23- 374/ सीधेप्राप्त। (266/23) DCPE, SHO र्गोमती�र्गरकृ०परिरक्षणकरआवश्यकनिवधिधकप्रनिVयाअ�ुसारकाय,वाही सुनि�धिश्चतकरे।ह 0 DCP E 19/05/23, SI श्रीमन्दीपसिंसहकृजांचकरआ०प्रेनिषत करें , Sd SHO 20/5/23 ।�ोट : म 0 का 0 866 म�ीषाभारतीथा�ार्गोमती�र्गरलख�ऊ निद�ांक 01.07.2023 |"

11. Further, learned counsel for the applicant has submitted that the applicant preferred a petition i.e. Matters under Article 227 No. 5402 of 2023, which was disposed of on 19.10.2023 with direction to learned trial Court to conclude the trial of the case in question within a period of one year from the date of certified copy of the order.

12. The order dated 19.10.2023 passed by this Court in Petition under Article 227 No. 5402 of 2023 is as under:-

"1. Heard learned counsel for the petitioner and Sri Rajiv Kumar Verma, learned A.G.A for the State.

2. Present petition has been filed with the following prayer:

"To direct the Court of Ld. Special Judge, POCSO Act, Lucknow to expeditiously decide the proceedings of Special Trial No. 2126/2021 pending before the Court of Special Judge, POCSO Act, Lucknow pertaining to Case Crime No. 205 of 2021, under Sections-376, 323, 109 I.P.C. and Section 5, 6 and 16 of the POCSO Act, P.S.-Aliganj, District Lucknow."

10

3. Considering the facts and circumstances of the case, this petition is disposed of with a direction to Special Judge, POCSO Act, Lucknow to decide the aforesaid case in accordance with law, maximum within a period of one year, from the date of production of a certified copy of this order and after providing opportunity of hearing to all concerned without granting any unnecessary adjournment to either of the parties. In case of adjournment, Court shall record reason for the same and also impose cost."

13. Learned counsel for the applicant has submitted that P.W.-6 (Hari Prakash Srivastava) was examined on 16.11.2023 and trial of the case in question was listed on 05.12.2023 for recording statement of accused u/s 313 Cr.P.C. In that regard, the accused persons appeared on the date fixed, but their statements u/s 313 Cr.P.C. were not recorded by the Court. Later on, their statements were recorded on 11.12.2023 and the case was listed for defense evidence.

It has further been submitted that respondent no.3 is an influential person who has been released on personal bond in such a heinous offense of P.O.C.S.O. Act. During the course of recording the statement of accused persons u/s 313 Cr.P.C., it appears in the mind of applicant that fair trial would not be secured in the Court of learned Special Judge, P.O.C.S.O. Act, Lucknow. The respondent nos.2 & 3 were regularly trying to affect the proceeding of trial by moving frivolous and false applications before learned trial Court. In the same sequences, respondent no.3 moved an application to summon several government officers and defense witness on 09.01.2024 with the intention to delay the proceeding of trial. The said application was partly allowed by learned trial Court vide order dated 09.01.2024 after recording the statement of defense witness. The respondent no.3 filed voluminous documents before learned trial Court, which have no relevancy with the instant case and he was trying to compel learned trial Court to exhibit the said documents without any legal authority on 25.04.2024, which is still pending and the trial of the instant case could not be decided even after lapse of about 3 years.

11

14. It has next been submitted by learned counsel for the applicant that in the meantime, learned Special Judge, P.O.C.S.O. Act has requested to learned District and Sessions Judge, Lucknow to transfer 150 cases to different learned Special Judge, P.O.C.S.O. Courts. In this connection, a list was given by learned Special Judge, P.O.C.S.O. Act to Sessions Judge. The case in question was at serial no.99, and by way of administrative order, learned Sessions Judge ordered for transferring the case, hence, the case in question was transferred to learned Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow.

It has also been submitted that respondent nos.2 & 3 filed a transfer application u/s 408 Cr.P.C. before the Court of learned Sessions Judge, Lucknow, which was registered as Crl. Misc. Case No. 637 of 2024 (Pinki Tiwari and Anr. Vs. State of U.P. and Ors.) seeking transfer of S.T. No. 2126 of 2021 arising out of Case Crime No. 205 of 2021 u/s 376, 323, 109 I.P.C. and 5/6/16 of P.O.C.S.O. Act, Police Station- Aliganj, DistrictLucknow (State Vs. Rajesh Dutt Bajpai and Anr.) from the Court of learned Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow to Special Judge, P.O.C.S.O. Act, Lucknow on 29.05.2024. Further, the applicant filed her objection in that transfer application, but the said application was allowed by learned Sessions Judge, Lucknow without considering the objections of the applicant as also learned Sessions Judge committed error in sending back the trial to learned Special Judge, P.O.C.S.O. Court.

Learned counsel for the applicant has placed reliance on the decision of the Kerala High Court in the case of T.S. Surendra Kumar Vs. K. Vijayan & Anr. reported in 2005 SCC OnLine Kerala 476 and on the decision of the Madhya Pradesh High Court in the case of Radhey Shyam vs. State of U.P. reported in 1984 (10) ALR 418 , and has requested for indulgence of this Court.

15. Learned counsel for the complainant as well as learned A.G.A. has vehemently opposed the prayer of the applicant and has submitted that

12

there is no illegality in the order passed by learned trial Court. They have jointly submitted that it is admitted case of the applicant that the trial of the case in question was going on, but no application was ever moved for transfer of the case from the Court of learned Special Judge, P.O.C.S.O. Act to any other Court. Being a main Court of the charge-sheet under the provisions of P.O.C.S.O. Act, the charge-sheets under P.O.C.S.O. Act were being regularly filed in the said Court and as it was overburdened, a request was made as a matter of routine to learned Sessions Judge for transfer of 150 cases to learned Special Judge, P.O.C.S.O. Act, Court No.1, learned Special Judge, P.O.C.S.O. Act, Court No.2 and learned Special Judge, P.O.C.S.O. Act, Court No.3. In the said list, the instant case was at serial no. 99, and thereafter, by way of administrative order dated 17.05.2024, learned District and Sessions Judge, Lucknow ordered for transfer of 150 cases and the instant case was transferred to learned Special Judge, P.O.C.S.O. Act, Court No.2.

16. The order dated 17.05.2024 passed by learned District and Sessions Judge, Lucknow is as under:-

" अवलोनिकत।

पीठासी�अधिधकारी , न्यायालयनिवशेषन्यायाधीशपॉक्सोएक्ट , लख�ऊद्वाराप्रेनिषतपत्र निद�ांक -16.05.2024 केसाथसंलग्नसूचीमेंवर्भिणतसत्रपरीक्षणVमसं० -1 लर्गायतVम सं० -150 तककीपत्रावलिलयांन्यायलयनिवशेषन्यायाधीशपॉक्सोएक्टलख�ऊसे निवधिध�ुसारसु�वाईएवंनि�स्तारणहेतुVमश :-

Vमसं० -1 लर्गायतVमसं० -50 तककीपत्रावलिलयांन्यायालयअपरजिजलाएवंसत्र न्यायाधीश / पॉक्सोएक्ट , कोट, �ं० -1, लख�ऊमेंअंतरिरतकीजातीहैं।

Vमसं० -51 लर्गायतVमसं० -100 तककीपत्रावलिलयांन्यायालयअपरजिजलाएवंसत्र न्यायाधीश / पॉक्सोएक्ट , कोट, �ं० -2, लख�ऊमेंअंतरिरतकीजातीहैं।

Vमसं० -101 लर्गायतVमसं० -150 तककीपत्रावलिलयांन्यायालयअपरजिजलाएवंसत्र न्यायाधीश / पॉक्सोएक्ट , कोट, �ं० -3, लख�ऊमेंअंतरिरतकीजातीहैं। "

13

17. Learned counsel for the complainant has next submitted that the transfer application was filed by the applicant merely on the basis of presumption and suspicion. He has also submitted that judgment relied by learned counsel for the applicant are wrongly interpreted and also submitted that the Section 409(2) Cr.P.C. clearly provides that part-heard trial should not be withdrawn and transferred.

Relying on the decisions of this Court passed in the case of Punjab Singh and others Vs. State of U.P. reported in 1982 SCC OnLine All 993 and Radhey Shyam and Anr. Vs. State of U.P. reported in 1984 SCC OnLine All 365 , and on the decision of the Chhattisgarh High Court in the case of Toman Lal Yadav Vs. State of Chhattisgarh and Ors. reported in Transfer Petition (Crl.) No. 35 of 2022, learned counsel for the complainant has submitted that ground for transfer of trial should be reasonable not imaginary as only based on conjecture and surmises.

Further, relying on the decisions of Hon'ble Apex Court passed in the cases of Usman Gani Adambhai Vahora Vs. State of Gujarat and Anr. reported in (2016) 3 SCC 370 , Gurcharan Dass Chadha Vs. State of Rajasthan reported in 1965 SCC OnLine SC 341 , learned counsel for the complainant has also submitted that in a case of criminal trial, the case should be decided by a Judge who has heard the whole of it.

Next, relying on the provisions of Section 326 Cr.P.C., learned counsel for the complainant has vehemently submitted that the present application is misconceived and is liable to be dismissed.

18. Considering the submissions of learned counsel for the parties and going through the contents of the application as well as other relevant documents, it is admitted case of the applicant in the entire application that trial of the case in question is going on for recording the statement of defense witnesses. It is evident that certain witnesses have already been examined and certain documents were filed on 25.04.2024. Admittedly,

14

four Special Courts of P.O.C.S.O. Act are functioning in Lucknow Judgeship. The case in question was being tried before Special Judge, P.O.C.S.O. Court, which is main court as well as registering court of charge-sheet in P.O.C.S.O. Act cases. After being overburdened, a request was made by learned Special Judge, P.O.C.S.O. Act to learned Sessions Judge vide its letter dated 16.05.2024 for transferring 150 cases related to P.O.C.S.O. Act to Special Judge, P.O.C.S.O. Act, Court No.1, Special Judge, P.O.C.S.O. Act, Court No.2 and Special Judge, P.O.C.S.O. Act, Court No.3 respectively. Thereafter, considering the request of the Special Judge, P.O.C.S.O. Act, an administrative order dated 17.05.2024 was passed by learned Sessions Judge, Lucknow and transferred the cases serially. The instant case was transferred to Special Judge, P.O.C.S.O. Act, Court No.2 and then this fact was apprised to the Sessions Court by the private respondent by moving transfer application that almost the trial of the case is concluded and the case is being listed for recording the defense evidence, thereafter, it was wrongly transferred by way of administrative order and requested for sending back. Moreover, after considering the objections of the applicant, the transfer application was allowed and the trial of case in question was sent back to the Special Judge, P.O.C.S.O. Act. This petition/application is filed merely on the basis of conjecture and surmises. It is also evident from the record that the trial is at the last stage and most of the evidence has been recorded by the Special Judge, P.O.C.S.O. Act. Therefore, the Sessions Judge, Lucknow has rightly sent back the trial, which was transferred to Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow by way of passing administrative order dated 17.05.2024.

19. In view of above, the present application is misconceived and the same stands dismissed .

Order Date :- January 16, 2025 Arpan

Digitally signed by :- ARPAN High Court of Judicature at Allahabad, Lucknow Bench

Procedural history

How this case reached the court

AI extract

Order under challenge
Order of the District and Sessions Judge, Lucknow allowing the transfer application (Crl. Misc. Case No. 637 of 2024) of respondent nos. 2 & 3 under Section 408 Cr.P.C. and sending the trial back from Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow to the original Special Judge, P.O.C.S.O. Act, Lucknow.¶65
District and Sessions Judge, Lucknow
Prior proceeding
Murder of the applicant's mother (Malini Dutt Bajpai) and brother (Sharv Dutt Bajpai) on 29.08.2020, followed by lodging of FIR No. 61 of 2020 u/s 302 I.P.C., P.S. Gautam Palli, Lucknow by respondent no.3 against unknown persons.¶10
Prior proceeding
Applicant (then a juvenile, per later FIR narrative) arrested 30.08.2020, examined by Five Members' Board K.G.M.U., enlarged on bail 30.09.2020 to custody of her father/respondent no.3; charge-sheet dated 12.02.2021 laid before Juvenile Justice Board, cognizance taken 10.08.2021.¶12
Prior proceeding
After the victim disclosed victimisation by her father/respondent no.3, FIR of the case in question (Case Crime No. 205 of 2021 u/s 376, 323 I.P.C. and 3/4 of P.O.C.S.O. Act) lodged on 23.09.2021 against respondent nos.2 & 3.¶13
Prior proceeding
Charge-sheet against respondent nos.2 & 3 submitted in the Special Court on 10.12.2021; cognizance taken and summons issued.¶13
Prior proceeding
Respondent nos.2 & 3 challenged the cognizance order in Application u/s 482 Cr.P.C. No. 208 of 2022 before this Court; disposed of on 10.08.2022 declining quash, directing surrender-and-same-day-bail by 18.08.2022 and liberty to seek discharge.¶19
Prior proceeding
Respondent nos.2 & 3 appealed to Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 8312 of 2022 challenging the order dated 10.08.2022; dismissed on 12.09.2022 with observation that the trial Court may proceed independently on its own merits.¶20
Prior proceeding
Discharge application of respondent nos.2 & 3 dismissed on 05.09.2022; charges framed on 14.09.2022 (after cancellation of NBWs issued 09.09.2022); testimony of P.W.-1 Vijay Kumar Mishra recorded 19.09.2022 to 23.09.2022.¶27
Prior proceeding
Applicant's earlier intra-district transfer request before District and Sessions Judge, Lucknow registered as Crl. Misc. Case No. 934 of 2022 was rejected on 06.10.2022.¶28
Prior proceeding
Victim testified as P.W.-2 (recorded 30.09.2022; cross-examination 01.10.2022, 06.10.2022, 07.10.2022, 03.11.2022; remaining cross-examination 05.01.2023 and 12.01.2023 after change of Presiding Officer); P.W.-3 to P.W.-5 recorded 17.10.2023.¶44
Prior proceeding
Retaliatory counter-FIR: respondent no.3 lodged Case Crime No. 401 of 2023 u/s 193, 419, 420, 467, 468, 471, 120-B I.P.C. on 01.07.2023 at P.S. Gomti Nagar, Lucknow against the applicant, her maternal grandfather, maternal grandmother and aunt.¶46
Prior proceeding
Petition under Article 227 No. 5402 of 2023 disposed of on 19.10.2023 with direction to conclude the trial within one year from production of certified copy.¶60
Prior proceeding
P.W.-6 examined 16.11.2023; statements of accused u/s 313 Cr.P.C. recorded on 11.12.2023 and case listed for defence evidence.¶61
Prior proceeding
Administrative redistribution: upon the Special Judge's request (letter dated 16.05.2024) to shift 150 POCSO cases, the Sessions Judge's administrative order dated 17.05.2024 transferred the instant case (serial no. 99) to Special Judge, P.O.C.S.O. Act, Court No.2, Lucknow.¶64
Prior proceeding
Respondent nos.2 & 3 filed a transfer application u/s 408 Cr.P.C. before the Sessions Judge, Lucknow, registered as Crl. Misc. Case No. 637 of 2024 on 29.05.2024, seeking return of the trial to the original Special Judge; despite applicant's objections it was allowed.¶65