IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.10715 of 2008
Satyendra Yadav, son of Sri Suryadeo Yadav, resident of village-
Lakhaur, P.S.- Ghoshi, District- Jehanabad.
........Petitioner
Versus
1. The State of Bihar .
2. Jhulan Yadav, son of Late Dindayal Yadav, resident of
village-Mira bigha, P.S.-Makhdumpur, District-
Jehanabad.
........Opposite Parties
With
Cr.Misc. No.29367 of 2009
Dinesh Yadav, son of Late Ram Sevak Yadav, resident of
village-Pachrukhia, P.S.- Kako, District- Jehanabad.
..........Petitioner
Versus
The State of Bihar
.....Opposite Party
-----------
10. 09.11.2011 Cr. Misc. No.10715/2008 and Cr. Misc.
No.29367/2009 have been filed by the accused petitioners
under Section 407 of the Code of Criminal Procedure for
transfer of S.T.No.37/2009/140/2009 arising out of
Makhdumpur P.S. Case No.321/2007 from the Sessions
Division, Jehanabad to any other Sessions Division i.e.
Patna or Gaya or any other place on the ground that no
lawyer of Jehanabad Bar Association is ready to appear on
behalf of the accused petitioners. In support of their
contention, a copy of the resolution of the Bar Association,
Jehanabad has been filed (Annexure-3 of Cr. Misc.
2
No.10715/2008).
It has also been submitted that at the time of
anticipatory bail application, a petition was filed, but later
on no one appeared on behalf of the petitioner before the
learned Sessions Judge and the case was dismissed as
withdrawn. Later on, anticipatory bail was granted by a
Bench of this Court and the anticipatory bail was allowed,
but there was no lawyer of the Jehanabad Bar Association
to file the bail bond etc. on behalf of the petitioners. For
filing the bail bond, the petitioners had to engage the
lawyer from Patna. Local lawyer was not ready to file the
bail bonds etc. as there was resolution of the Bar
Association, Jehanabad dated 8.02.2008 that the lawyers
association has taken a decision that in the murder case of
Dindayal Yadav, A.P.P., no advocate of the Association
will appear and the petitionfor anticipatory bail will also
be withdrawn.
It has been stated in the rejoinder filed on
behalf of the petitioners to the counter affidavit filed on
behalf of the opposite party no.2 that the petitioner after
grant of anticipatory bail, since no advocate of Jehanabad
Bar Association was ready to do Pairvi on behalf of the
3
petitioners, the petitioners had no option but to engage the
advocate of Patna Bar Association namely Vinay Sharma,
Dilip Kumar and Sunil Kumar, who went to Jehanabad
and any how completed the legal formalities for execution
of bail bond of the petitioners, although there was severe
protest made by the members of Jehanabad Bar
Association. Now, the aforesaid advocates are not ready to
do Pairvi in the present case having gone to Jehanabad and
they are also charging heavy fee for doing Pairvi in the
present case, which is beyond the reach of the petitioners.
The counter affidavit has been filed on behalf
of the State as well as on behalf of the informant-opposite
party no.2. They have controverted the statement made by
the petitioners.
It has been submitted on behalf of the State
that no lawyer has been demanded from the State or from
the local administration by the petitioners. However Mr.
Ramakant Sharma, the learned Senior counsel appearing
on behalf of the opposite party no.2, the informant has
fairly submitted that the informant has no objection if the
aforesaid case is transferred from the Sessions Division,
Jehanabad to the Sessions Division at Patna as the
4
informant is living at Patna.
It has been observed by the Hon’ble Supreme
Court in the case of Mrs. Maneka Sanjay Gandhi & ors.
Vs. Miss Rani Jethmalani reported in 1979 SC 468 at
paragraphs 2 that “Assurance of a fair trial is the first
imperative of the dispensation of justice and the central
criterion for the court to consider when a motion for
transfer is made is not the hypersensitivity or relative
convenience of a party or easy availability of legal
services or like mini-grievances. Something more
substantial, more compelling, more imperiling, from the
point of view of public justice and its attendant
environment, is necessitous if the court is to exercise its
power of transfer. This is the cardinal principle although
the circumstances may be myriad and vary from case to
case. We have to test the petitioner’s ground on this
touchstone bearing in mind the rule that normally the
complainant has the right to choose any court having
jurisdiction and the accused cannot dictate where the case
against him should be tried. Even so, the process of justice
should not harass the parties and from that angle the court
may weigh the circumstances”.
5
Considering the facts and circumstances stated
above, the S.T.No.37/2009/140/2009 arising out of
Makhdumpur P.S. Case No.321/2007 is transferred from
the Sessions Division, Jehanabad to Sessions Division,
Patna.
Let the records of aforesaid case be sent to the
court of Sessions Judge, Patna, who will deal with the case
himself or transfer to any other Additional Sessions Judge,
Patna for the speedy trial.
In the result, both these applications are
allowed.
V.K. Pandey ( Amaresh Kumar Lal, J.)