Transfer of criminal cases under Section 407 Cr.P.C. requires reasonable apprehension of bias, not mere allegations.

JUDGMENT

Sanjay Kumar Singh, J.

Heard Mr. Pankaj Shukla, learned counsel for the applicant, Mr. Kapil Deo Yadav, learned Additional Government Advocate assisted by Ms. Pratiksha Rai, learned Brief Holder for the State of U.P./opposite party no.1 as well as Mr. Swetashwa Agarwal, learned counsel appearing on behalf of opposite party Nos. 2 to 17 and perused the record.

2. This transfer application Under Section 407 Cr.P.C. has been moved by the applicant with a prayer to transfer the Session Trial No. 311 of 2017 (State v. Devendra Agarwal and others), arising out of Case Crime No. 18 of 2017, under Sections 147, 148, 149, 307, 302, 427, 325 IPC., Police Station Sahpau, District Hathras, pending before the Special Court (MP/MLA), Hathras, from District Hathras to any other district.

3. Brief facts of the case which are required to be stated are that the applicant Ram Hari Sharma lodged a first information report on 08.02.2017 with regard to an incident which took place on the same day i.e. on 08.02.2017 for the alleged offence under Sections 147, 148, 149, 307 302 and 427 I.P.C. against Devendra Agarwal (MLA Samajwadi Party), Atul Agarwal, Chandan Agarwal, Rakesh Agarwal, Vinit Gupta and 25 to 30 unknown persons. After culmination of investigation, charge-sheet was submitted against 16 accused persons, who have been arrayed as opposite party Nos. 2 to 17 in the present Transfer Application and their trial is going on before Special Court (MP/MLA), Hathras, in which all the 16 prosecution witnesses have been examined up to 20.07.2023.

3.1 At that stage on 04.07.2023 the applicant (complainant) has preferred Transfer Application No. 441 of 2023 before this Court with a prayer to transfer the Session Trial No. 311 of 2017 from the Court of A.D.J./F.T.C. Ist, Hathras to the competent court of District Agra or any other place, mainly on the ground that the trial of this case is wrongly going on before the court of A.D.J./F.T.C. Ist, Hathras while the matter relates to the Court of MP/MLA. In the said Transfer Application a report was called for from the District Judge concerned vide order dated 20.07.2023. Pursuant to the said order, District Judge, Hathras submitted report dated 02.08.2023 along with administrative order dated 03.06.2021 issued by Joint Registrar (J) (Services) High Court. According to which, Smt. Parul Verma was empowered/authorised for exercising the power to try the criminal cases pending against elected MPs/MLAs in District Hathras. Thereafter, at the request of counsel for the applicant Ram Hari Sharma, the said Transfer Application No. 441 of 2023 was dismissed as withdrawn vide order of Coordinate Bench of this Court dated 22.08.2023.

3.2 Thereafter on 20.09.2023 the applicant has preferred the instant Second Transfer Application under Section 407 Cr.P.C. making allegation against Smt. Parul Verma, Presiding Officer of this cases. At the first hearing of this case opposite parties were directed to file counter affidavit and trial proceeding was not stayed, but from the side of the applicant repeated adjournments were being taken before the trial court on the ground of pendency of this Transfer Application before this Court.

3.3 On 01.02.2024 trial court has passed a detail order mentioning inter alia that:-

"..........complainant by hook or by crook, when the entire evidence has been recorded before the undersigned, is playing tricks to delay the disposal of this case which ripened in July 23 for arguments and this Court is waiting for appropriate orders from Hon'ble High Court for 30 dates and the wait on part of complainants delay seems never ending. In various rulings it has been cited by Hon'ble Court that mere pendency of a case before Hon'ble Court does not amount to stay order. Therefore this Court, deems it proper to proceed with hearing of arguments and deliver the Judgment as the case cannot be let pending for long without any reason. Hence, this Court hereby directs the prosecution and the defence