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Gauri Shanker Srivastava v. State Of U.P

Allahabad High Court

Dec 6, 1974

Judgment

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Opinion Summary — T.S. Misra, J. (Transfer Application)

Factual and Procedural Background

The applicant, Sri Gauri Shanker Srivastava, a Sub-Post Master posted at Varanasi Sanskrit Vishwavidyalaya Sub-Post Office, was placed under suspension following complaints alleging embezzlement. Two First Information Reports (FIRs) were lodged at Chetganj, Varanasi (dated 12 August 1972 and 4 September 1972) and charge-sheets submitted in the Varanasi court under Section 409 IPC. Separately, the Criminal Branch Investigation (U.P. Police) at Lucknow investigated an alleged misappropriation of Rs. 2,485 deposited by a cashier, and on 1 January 1974 submitted a charge-sheet before the Special Judge, Anti-Corruption (East), Lucknow under Section 5 of the Prevention of Corruption Act and Section 409 IPC (Criminal Case No. 2 of 1974: State v. Gauri Shanker Srivastava).

The applicant sought transfer of Criminal Case No. 2 of 1974 from the Special Judge (East), Lucknow to the District and Sessions Judge, Varanasi (an Ex-Officio Special Judge), on grounds of convenience and hardship. A counter-affidavit was filed by the investigating officer, Ram Naresh Singh, opposing transfer. The court heard submissions and decided the transfer application.

Legal Issues Presented

Whether Criminal Case No. 2 of 1974 pending before the Special Judge (East), Lucknow should be transferred to the District and Sessions Judge, Varanasi (an Ex-Officio Special Judge).
Whether a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a Special Judge designated for certain areas can be transferred to another Special Judge under Section 407 of the Code of Criminal Procedure.
Whether the applicant's asserted convenience (residence, defence witnesses residing in Varanasi) and his poverty constitute sufficient grounds under Section 407 CrPC to warrant transfer.
Whether the existence of other embezzlement cases pending at Varanasi arising from different periods provides a proper ground for transferring the Lucknow case.

Arguments of the Parties

Applicant's Arguments

The applicant is a Government servant, suspended and facing criminal proceedings in Lucknow as well as two cases in Varanasi.
The Lucknow case (Criminal Case No. 2 of 1974) should be transferred to Varanasi because the applicant and the majority of witnesses (both prosecution and defence) reside in Varanasi, making trial in Varanasi far more convenient.
The applicant alleges poverty and inability to bear the expense of bringing about 18 defence witnesses from Varanasi to Lucknow; transfer is necessary in the interest of justice and to avoid severe hardship.
The District and Sessions Judge, Varanasi and the First Additional District and Sessions Judge, Varanasi have been appointed Ex-Officio Special Judges under notifications (including one dated 18 September 1952 and another dated 24 July 1972), and are therefore competent to try the case if transferred.

Respondent / Investigating Officer's Arguments

It was contended that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a particular Special Judge (here, Special Judge (East), Lucknow, per Notification No. 4683(4)/VI-315-73 dated 3 January 1974) cannot be transferred because it must be tried by the designated Special Judge.
The investigating officer provided a list of prosecution witnesses in the charge-sheet showing that out of 14 prosecution witnesses, 11 are residents of Varanasi (two are in Calcutta and Bareilly, and the investigating officer resides in Lucknow).
It was asserted that the applicant had not filed a list of defence witnesses before the Special Judge (East), Lucknow, and therefore his claim of hardship caused by witness travel and expense should not be relied upon; summons could be issued by the Lucknow court, avoiding expense to the applicant.
The officer alleged the applicant had delayed proceedings and proceedings were taken under Sections 87 and 88 CrPC for his arrest and production.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gurcharan Dass Chadha v. State of Rajasthan, A.I.R. 1966 S.C. 1418	To reject the contention that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a designated Special Judge is absolutely non-transferable.	The court relied on this decision to hold that it has jurisdiction under Section 407 CrPC to transfer a case from one Special Judge to another Special Judge of equal or superior jurisdiction, subordinate to the High Court, where circumstances warrant such transfer.

Court's Reasoning and Analysis

The court proceeded through a structured analysis, addressing legal competence, statutory framework, and the specific grounds advanced for transfer.

Jurisdiction to transfer despite notifications under the Criminal Law Amendment Act, 1952:
The court rejected the categorical submission that a case assigned by the State Government to a designated Special Judge could not be transferred. Relying on the Supreme Court decision in Gurcharan Dass Chadha, the court held that this contention did not survive and that the High Court (through exercise of Section 407 CrPC) can transfer a case from one Special Judge to another Special Judge of equal or superior jurisdiction subordinate to the Court.
Existence and effect of notifications appointing Ex‑Officio Special Judges:
The court noted Notifications (including one dated 18 September 1952 and a continuation dated 24 July 1972) appointing the District and Sessions Judge, Varanasi and the First Additional District and Sessions Judge, Varanasi as Ex-Officio Special Judges for specified areas. These notifications were not shown to have been superseded; therefore the District and Sessions Judge, Varanasi was competent to try offences listed under sub-section (1) of Section 6 of the Criminal Law Amendment Act, 1952 if the case were transferred.
Evaluation of the three principal grounds advanced for transfer:
- Ground 1 — commonality of offences/pendency of other cases at Varanasi:
  The court found this ground had no merit. The Varanasi cases arose from different periods (FIRs dated 12 August 1972 and 4 September 1972) whereas the Lucknow charge-sheet concerned an alleged embezzlement on 31 August 1971. The court concluded that differences in periods and facts meant the mere pendency of other embezzlement cases in Varanasi was not sufficient to justify transfer.
- Ground 2 — convenience of parties and witnesses:
  The court recognized that Section 407 CrPC permits transfer where it tends to the general convenience of the parties or witnesses or is expedient for the ends of justice. The court observed that the applicant and many prosecution and defence witnesses reside in Varanasi (applicant said 18 defence witnesses; the charge-sheet listed 14 prosecution witnesses, 11 of whom were residents of Varanasi). The alleged offence was said to have been committed at Varanasi. On balance, the court concluded the witnesses and parties would be greatly convenienced by trial at Varanasi.
- Ground 3 — applicant's poverty and inability to bear expense:
  The applicant's assertion that he was a poor man who could not afford to bring defence witnesses to Lucknow was not disputed in the counter-affidavit. The court gave weight to the uncontested averment of poverty and held that forcing trial at Lucknow would hamper the defence. The court also rejected the respondent's argument that the absence of a filed list of defence witnesses was determinative, noting that no charge had yet been framed and that the applicant had furnished names and addresses of 18 defence witnesses in a rejoinder affidavit. The court observed that issuing summons is discretionary and may be declined if production of witnesses would cause delay, but on the facts transfer was warranted.
Balancing considerations and conclusion:
Considering the statutory power under Section 407 CrPC, the applicable notifications appointing Ex-Officio Special Judges, the convenience of the large number of witnesses residing in Varanasi (both prosecution and defence), the alleged commission of the offence in Varanasi, and the uncontested claim of poverty by the applicant, the court concluded that transfer would serve the ends of justice and tend to the general convenience of the parties and witnesses. The court therefore directed transfer.

Holding and Implications

Holding: The court ordered that Criminal Case No. 2 of 1974, State v. Gauri Shanker Srivastava, pending in the Court of Special Judge (East), Lucknow, be transferred to the court of the District and Sessions Judge, Varanasi, who is an Ex-Officio Special Judge at Varanasi.

Implications:

The direct effect is that the specified criminal trial will be conducted at Varanasi before the District and Sessions Judge acting as Ex-Officio Special Judge.
The court relied on Section 407 CrPC and existing Supreme Court authority to permit transfer between Special Judges despite notifications assigning cases to particular Special Judges; the opinion does not purport to lay down any novel legal principle beyond its application to the facts before the court.
No broader implications or new precedent-making propositions are discussed in the opinion beyond the court's application of the law to these facts; the decision results in the practical transfer of the case for the convenience of parties and witnesses and to safeguard the accused's ability to defend himself.

This summary is prepared strictly from the text of the provided opinion and does not add or infer facts beyond those contained in that opinion.

Show all summary ...

T.S Misra, J.:— This application arises in the following circumstances.

2. Sri Gauri Shanker Srivastava the applicant avers that he is a Government Servant and is employed as Sub-Post Master posted at Varanasi Sanskrit Vishwavidyalaya Sub-Post Office, Varanasi but has now been placed under suspension.

3. There was certain complaint against him alleging that he, as Sub-Post Master, committed certain embazzlement of money. A first information report to that effect was lodged on August 12, 1972 at the police station, Chetganj, Varanasi by Amardeo Yadav, Inspector of Post Offices, Sub-Division, Shivpur. Another first information report was lodged by Senior Superintendent Post Offices, Varanasi on September 4, 1972 against the applicant for embazzlement of money. These two cases were investigated by the police of Chetganj, Varanasi and charge-sheets were submitted in the court at Varanasi under Section 409 I.P.C The applicant further avers that the Criminal Branch Investigation, U.P Police at Lucknow started the case for investigation on June, 26, 1973 in respect of an alleged misappropriation of a sum of Rs. 2485/- deposited by Nand Lal Dubey Cashier of Sanskrit Vishwavidalaya, Varanasi. After investigation, the Criminal Branch Investigation, U.P Police, Lucknow submitted a charge-sheet in the Court of Special Judge Anti Corruptions (East), Lucknow under Section 5 of Prevention of Corruption Act and 409 I.P.C against the applicant. The list of witnesses in the charge-sheet submitted before the Special Judge discloses that nine witnesses are of Varanasi. The applicant also resides at Varanasi. His contention is that he shall be put to great hardship if he is to face trials at two different places simultaneously namely at Varanasi and Lucknow and that he is a poor man and it will not be possible for him to defend his case at two different places. It would, therefore, be in the interest of justice that the Criminal case No. 2 of 1974 State v. Gauri Shanker Srivastava pending in the Court of Special Judge, Anti Corruption (East), Lucknow may be transferred to the Court at Varanasi. He has contended that the Sessions Judge, Varanasi is also Special Judge appointed under the Criminal Law Amendment Act, 1952 and is competent to try the case, on its transfer from the court of the Special Judge, Lucknow. In support of his application the applicant filed his affidavit. A counter-affidavit has been filed by Ram Naresh Singh the Investigating Officer of the case which is pending in the court of the Special Judge, Anti Corruption (East), Lucknow. In paragraph 7 of the counter-affidavit the defendant gave the names of the witnesses whose names are mentioned in the charge-sheet submitted by the Criminal Branch Investigation, U.P Police at Lucknow on January 1, 1974 a perusal whereof discloses that out of 14 witnesses 11 witnesses hail from Varanasi. Sri D.D Goel witness mentioned at serial No. 10 is shown as a resident of Calcutta and Sri R.B Rastogi mentioned at Serial No. 13 is shown as a resident of Bareilly. Sri Ram Naresh Singh, the Investigating Officer is residing at Lucknow. In paragraph 10 of the affidavit it is stated that the applicant had not given any list of the defence witnesses and at present only accused applicant's convenience cannot be considered as a factor for the transfer of the case. Further, it is stated that the applicant had been delaying the proceedings and ultimately the proceedings were taken against him under Sections 87 and 88 of the Code of Criminal Procedure for his arrest and production before the Court. On these grounds the application is opposed. In the rejoinder affidavit the applicant reiterated that unless the case is transferred from Lucknow to Varanasi, he would not be able to defend the case properly and that he has to examine about 18 witnesses who reside in Varanasi and it would be impossible for him to take all these 18 witnesses for evidence, to Lucknow. He further alleged that it would require huge amount of money in bringing the witnesses to Lucknow. He contended that he is a poor man and has no means of spending huge amounts for defending himself by bringing the witnesses from Varanasi to Lucknow. He gave a list of defence witnesses in paragraph 8 of the rejoinder affidavit and stated that all of them reside at Varanasi.

4. At the outset the application was opposed on the ground that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a Special Judge cannot be transferred at all because under the terms of that Act such a case must be tried by a Special Judge designated only. It was contended that the charge-sheet in the case pending before the Special Judge Anti Corruption (East) Lucknow was submitted by the Special Police Establishment of the Government and in view of the Notification No. 4683(4)/VI-315-73 dated January 3, 1974 such a case is triable only by the Special Judge (East) at Lucknow and cannot, therefore, be transferred to any other Special Judge. This contention does not survive in view of the decision of the Supreme Court in Gurcharan Dass Chadha v. State Of Rajasthan . A.I.R 1966 S.C 1418.. This Court in exercise of its jurisdiction and power under Section 407 of the Code of Criminal Procedure can transfer a case from one Special Judge to another Special Judge of equal or superior jurisdiction, subordinate to this Court.

5. The learned counsel for the applicant referred me to a Notification No. 1953.VI-8-52 dated September 18, 1952, were by the District and Sessions Judge, Banaras has been appointed Ex-Officio Special Judge for Banaras District for the purposes of Criminal Law Amendment Act, 1952. This Notification was not shown to have been superseded. The learned counsel for the applicant also referred me to another Notification No. 2121.VI-739-72 dated July 24, 1972 which is in continuation of the aforesaid Government Notification of September 18, 1952 and by which the First Additional District and Sessions Judge Varanasi has been appointed Ex-Officio Special Judge for Varanasi Nagar Mahapalika Area for trying offences specified in sub-section (1) of Section 6 of the Criminal Law Amendment Act, 1952 committed within that area. It was not shown to me that this notification has been superseded. Thus it is quite manifest that for the trial of the cases in regard to offences specified in sub-section (1) of Section 6 of the said Act arising in the Nagar Mahapalika Area in the District of Varanasi, the District and Sessions Judge Varanasi and the First Additional District Judge Varanasi have been appointed Ex-Officio Special Judge. At the same time the Special Judge (East) at Lucknow has also been appointed for trying the cases in regard to the offences specified in sub-section (1) of Section 6 of the said Act arising in Varanasi in which charge-sheet has been submitted by the Special Police Establishment. Normally the case in which the charge-sheet has been submitted by the Special Police Establishment is to be tried by the Special Judge (East) Lucknow in regard to offences specified in sub-section (1) of Section 6 of the said Act for the areas mentioned in the notification dated January 3, 1974. But there is no bar in transferring a case from one Special Judge to another Special Judge if the circumstances warranting such transfer are made out. Each case has to be judged on its own merits. If on consideration of all the circumstances the court is satisfied that it will be in the interest of justice or it will tend to the general convenience of the parties or witnesses to transfer the case, it shall make an order of transfer. It is for the party speaking for transfer of a case to show why the case should not be tried at the place where it normally should be tried.

6. In the instant case the applicant has sought transfer of the case pending in the Court of Special Judge (East) Lucknow, on the grounds that (1) the two cases arising out of the same occurrence under Section 409, I.P.C are pending against him in the court at Varanasi, (ii) it would be convenient to the accused-applicant and the witnesses if the said case is tried at Varanasi inasmuch as the applicant as well as all the witness for the prosecution and the defence, with the exception of a few live in Varanasi and (iii) the applicant is a poor man and has no means to spend huge amount for his defence at Lucknow and that it would be impossible for him to take all his 18 witnesses from Varanasi to Lucknow for evidence as that would require huge expenditure. There is no merit in ground No. 1. The allegations are, as stated, that the first case pending at Varanasi relates to embezzlement of money with regard to which a first information report was lodged on August 12, 1972. The second case pending against him at Varanasi also relates to embezzlement with regard to which another first information report was lodged on September 4, 1972. The case pending in the court of the Special Judge (East) Lucknow pertains to another embezzlement said to have been committed on August 31, 1971. These three cases relate to different periods and it would not in my view be a sufficient ground for transferring the case pending in the court of Special Judge (East), Lucknow to another court.

7. With regard to the second ground it may be stated that a case may be transferred if the court is satisfied that it will tend to the general convenience of the parties or witnesses or that it will be expedient for the ends of justice. It is not only the general convenience of the accused which is to be taken into consideration but the general convenience of the prosecution will also be taken into account. The general convenience of the witnesses may also be a factor for transferring a case from one court to the other. In that instant case the applicant has stated that his 18 witnesses are residents of Varanasi. The applicant is also a resident of Varanasi. Moreover, out of 14 witnesses for the prosecution 11 are residents of Varanasi. The offence is also said to have been committed at Varanasi. The witnesses for the prosecution and the defence would, therefore, be greatly convenienced if the case is tried at Varanasi.

8. With regard to ground number 3 the contention is that the applicant is a poor man and has no means to incur huge expenditure in taking his witnesses from Varanasi to Lucknow. The opposite party did not dispute this fact in the counter-affidavit. There is no allegation in the counter-affidavit that the applicant is not a poor man or that he has sufficient means to spend the money in taking his witnesses from Varanasi to Lucknow and in defending himself at Lucknow. It was, however, urged on behalf of the opposite party that the applicant has not yet filed a list of his witnesses before the Special Judge (East), Lucknow, and therefore, he cannot urge at this stage that he will have to incur huge expenditure in his defence. Further, it was urged that the applicant can get the summons issued from the court of the Special Judge (East), Lucknow and in that even the expenses would not have to be borne by him. I find no force in the contention of the opposite party. The fact, that the assertion of the applicant that he is a poor man and has no means to defend himself at Lucknow and to take his witnesses from Varanasi to Lucknow for his defence, has not been rebutted. That being so, it would hamper the defence if the case in question is tried by the Special Judge (East), Lucknow. The summoning of witnesses is within the discretion of a Court and if it feels that the production of witnesses is likely to cause delay, it may decline to issue summons. Section 407 of the Code of Criminal Procedure provides for a transfer of a case on the ground, inter alia, of the general convenience of the parties or witnesses which means that the court has to consider the convenience not only of the parties but of the witnesses as well. In the present case, since 11 out of 14 witnesses for the prosecution reside in Varanasi and 18 witnesses for the defence also reside in Varanasi, it would obviously tend to the convenience of the witnesses if the case is tried at Varanasi. The fact that the applicant has not yet submitted his list of witnesses to the court of Special Judge (East), Lucknow is not of much significance. That stage has not yet been reached inasmuch as no charge has yet been framed against him. He has however, mentioned the names and address of his 18 witnesses in his rejoinder affidavit. All these witnesses are residents of Varanasi. Taking all these circumstances into consideration, I am of the view that the order of transfer will serve the ends of justice.

9. I, therefore, direct that the Criminal Case No. 2 of 1974, State v. Gauri Shanker Srivastava pending in the Court of Special Judge (East), Lucknow shall be transferred to the court of District and Sessions Judge, Varanasi who is an Ex-Officio Special Judge at Varanasi.