SURENDERA PRATAP SINGH versus STATE OF U.P. AND ORS.

Citation: [2010] 11 S.C.R. 909 · Decided: 15-09-2010 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Case Allowed
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Judgment (excerpt)

[2010] 11 S.C.R. 909 
SURENDERA PRATAP SINGH 
v. 
STATE OF U.P. AND ORS. 
(Transfer Petition (Crl.) No. 535 of 2008) 
SEPTEMBER 15, 2010 
[ALTAMAS KABIR AND A.K. PATNAIK, JJ.) 
Code of Criminal Procedure, 1973 - s. 406 - Charge-
sheet u!ss. 307 and 302 /PC against four accused including 
A 
B 
an MLA belonging to party in power in the State - State filing 
C 
application for withdrawal of the criminal cases against the 
accused-MLA -
Transfer petition -
Seeking transfer of 
criminal case from one State to another State - Apprehending 
that perspective of the prosecution might get polluted - Held: 
In the facts and circumstances of the case, the apprehension 
D 
of the complainant is justified - In order to do fair justice to 
all the parties, the trial directed to be transferred to another 
State - Penal Code, 1860 - ss. 307 and 302. 
The petitioner lodged an FIR against four persons 
including respondent No. 2 (an MLA) alleging that they 
E 
had murdered the brother of the petitioner. Three 
accused except respondent No. 2, were arrested. The 
Investigating Agency submitted the charge-sheet against 
all the accused u/ss. 307 and 304 IPC. The Magistrate 
issued .non-bailable warrant against respondent No. 2, 
but the same was never executed. The investigation of 
the case was transferred to C.B.C.l.D. by the High Court 
F 
at the behest of respondent No. 2. Thereafter, 
Government of Uttar Pradesh passed an order for 
withdrawal of eight cases against respondent No. 2. The 
G 
Public Prosecutor moved an application u/s. 321 Cr.P.C. 
for withdrawal of the cases. The petitioner filed instant 
transfer petition seeking transfer of the case to some 
909 
H 
910 
SUPREME COURT REPORTS 
[2010] 11 S.C.R. 
A other State. The Supreme Court by an interim order 
stayed the proceedings before the Magistrate. 
Allowing the petition·, the Court 
HELD: 1.1 While the arrest of the petitioner may have 
B been stayed by the High Court, the circumstances in 
which the alleged incident had occurred, coupled with the 
fact that the Respondent No.2 was returned as an MLA 
in the same elections, does to some extent justify the 
apprehension of the petitioner that the perspective of the 
c prosecution may become polluted. There is no getting 
away from the fact that the Respondent No.2 is an MLA 
and that too belonging to the present dispensation. Since 
justice must not only be done but must also seem to be 
done, this case is an example where the said idiomatic 
o expression is relevant. [Para 11) [914-F-H] [915-A] 
1.2 In order to do fair justice to all the parties, the trial 
should be held outside the State of Uttar Pradesh and, 
accordingly, the transfer petition is allowed and the 
matter is directed to be transferred to the High Court of 
E Madhya Pradesh which shall decide the place and the 
Court before which the trial may be conducted. [Para 12) 
[915-B-C] 
ORIGINAL JURISDICTION : Transfer Petitiion (Criminal) 
F No. 535 of 2008. 
Shankar Divate for the Petitioner. 
S.K. Dwivedi, AAG, T.N. Singh, Rajeev Dubey, Kamlendra 
Mishra. Kavin Gulati, Sanjay Visen, J.K. Mishra and Shekhar 
G Kumar for the Respondents. 
·H 
The Judgment of the Court was delivered by 
ALTAMAS KABIR, J. 1. This Transfer Petition has been 
filed by one Surendra Pratap Singh, whose brother Raghvendra 
Pratap Singh, a practising Advocate of Pratapgarh, U.P., was 
SURENDERA PRATAP SINGH v. STATE OF U.P. AN0911 
ORS. [ALTAMAS KABIR, J.] 
murdered on 24th June, 2005. On the basis of the First A 
Information Report lodged by the Petitioner on the same day 
at 9.30 p.m. at Antu Police Station, Case Crime No.19 of 
2005 was registered against one Brijesh Mishra, MLA, his 
brother, Mahesh Mishra and associates, Hari Shankar and 
Gopi. During investigation, the Investigating Agency arrested B 
three out of four accused persons, namely, Mahesh Mishra, 
Hari Shankar and Gopi, but did not arrest Brijesh Mishra, who 
was an MLA of the Bahujan Samaj Party. The Investigating 
Agency submitted charge-sheet No.79 of 2005 against all the 
accused persons under Sections 307 and 302 IPC in the Court c 
of Chief Judicial Magistrate, Pratapgarh, wherein Brijesh 
Mishra was shown to be an absconder. On 24th August, 2005, 
the learned Magistrate took cognizance of the case and issued 
non-bailable warrant against the said Brijesh Mishra, which 
apparently was never executed. 
D 
2. On 15th September, 2005, the said Brijesh Mishra, 
who has been made Respondent No.2 herein, applied to
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