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Allahabad HC rejects plea to transfer gangrape case out of Jhansi district

A single-judge bench of Justice Anil Kumar Ojha passed this order while hearing a transfer application filed by Vipin Tiwari and two other connected applications.

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The Allahabad High Court rejected the transfer applications of gang-rape accused and said justice is not for the accused alone, and it should also be done for the victim.

A single-judge bench of Justice Anil Kumar Ojha passed this order while hearing a transfer application filed by Vipin Tiwari and two other connected applications.

The Applicants have filed the transfer application with a prayer to transfer the case under Section 376-D, 395, 386, 323, 354, 354-A, 354-B, 354-D, 34, 412 I.P.C and Section 5, 6, 9 & 10 of P.O.C.S.O Act and Section 67 and 67A I.T Act, P.S Sipri Bazar, District Jhansi (State v. Bharat Kumar and others), pending in the court of Special Judge (POCSO) Jhansi from District Court Jhansi to the court of competent jurisdiction to either District Kanpur or Banda or Fatehpur or Prayagraj.

The submission of the counsel for the applicants is that the victim’s father Rajeev Ranjan Srivastava is a practicing advocate in District Jhansi and therefore, no advocate is ready to appear on behalf of applicants in the District Court Jhansi.

The applicants have the constitutional right to engage a lawyer of their choice to contest the trial but that opportunity is being denied to the applicants due to the influence of the father of the victim.

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The allegation against Vipin Tiwari and Rohit is that they shot a video on a mobile while the victim was being raped, allegation against applicant Shailendra Nath Pathak is that he took Rs 1,000 from victim and also taken Rs 2000, and there is no allegation except this.

The Additional Government Advocate opposed the transfer application and drew attention of the Court towards the Vakalatnama filed on behalf of applicant Vipin Tiwari by Jaydeep Mishra Advocate and on behalf of applicant Shailendra Nath Pathak by Ashutosh Samadhiya, Advocate in District Court Jhansi which falsifies the averment of the counsel for the applicants that no advocate is ready to appear on behalf of applicants at District Jhansi. However, no Vakalatnama has been filed on behalf of applicant Rohit Kumar.

The Court observed,

“It is a case of gang rape wherein victim happens to be the daughter of a practicing advocate at Jhansi. If a case is transferred from Jhansi to other districts, the victim will have to travel to another district which may ultimately result into hardship and mental agony to the victim. Not only this, all other witnesses who are the residents of Jhansi except the formal witnesses, will have to travel to another district where the case will be transferred.

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If the case is transferred from District Jhansi to any other district, it will be inconvenient for the victim, witnesses, prosecution and for the society as a whole because the case sought to be transferred relates to gang rape. If a case is transferred, it will add insult to injury to the victim.

Justice is not for the accused only, justice should also be done with victim also and in the present case the victim has been subjected to gang rape.”

During the course of argument, it transpires that the bail applications of the applicants have been rejected by the High Court. Applicants are detained in jail. Vakalatnama on behalf of two applicants Vipin Tiwari and Shailendra Nath Pathak has been filed. However there is no Vakalatnama filed on behalf of applicant Rohit Kumar. Applicants have every right to contest the case through a lawyer of their choice. So far as the influence of the victim’s father who is practicing lawyer in Jhansi is concerned, there is no evidence on record, the Court noted.

“Considering the law laid down by the Supreme Court in Harita Sunil Parab (Supra) and keeping in view the entire facts and circumstances of the case, it would not be appropriate to transfer the aforesaid case from District Jhansi to the court of competent jurisdiction to either District Kanpur, Banda, Fatehpur or Prayagraj,” the Court further observed while rejecting the transfer applications.

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“However, the District Magistrate shall monitor the progress of the case and ensure that proper legal assistance is provided to the applicants during trial. District Magistrate/SSP Jhansi is also directed to ensure production of witnesses before the court on the date fixed.

As the case sought to be transferred relates to gang rape, it is expected from District Judge, Jhansi to monitor the progress of trial in monitoring cell meeting ensuing in every month and ensure the early disposal of the case”

-the order reads.

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