CIVIL APPEAL 2957 of 2023 on 4 March 2004

1. Heard.

2. Present application has been filed under Section 407 Cr.P.C./Section 447 of Bhartiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS") seeking transfer of Complaint Case No. 2957 of 2023 alongwith the final report No. 27 of 2011, arsing out of Case Crime No. 54 of 2004 under Sections 147, 148, 149/302 IPC, P.S.-Kakadev, District-Kanpur, Converted Case Crime No. 181 of 2004 under Sections 304A IPC, P.S.-Gangaghat, District-Unnao, from the Court of C.J.M., Unnao to the Metropolitan Magistrate, Kanpur Nagar.

3. Facts of the case, which are relevant for disposal of the instant application, of the case, are as under:-

(i) The applicant and deceased namely Gyan Prakash Mishra son of Munna Lal Mishra are real brothers.

(ii) The deceased at the time of incident was residing at House No. 327 of 2011, Shashtri Nagar, Police Station-Kakadev, District-Kanpur.

(iii) In the incident, the deceased sustained fire arm injury within the jurisdiction of P.S.-Gangaghat, District-Unnao on 04.03.2004. On account of injury sustained, the deceased died on 04.03.2004 at Hailet Hospital, Kanpur.

(iv) With regard to the aforesaid incident, an application was given before the Station House Officer, P.S.-Swaroop Nagar, District-Kanpur.

(v) Another application was also preferred by the applicant on the same day i.e. 04.03.2004 at 08:05 PM before the S.H.O., P.S.-Kakadev, District-Kanpur in which the applicant alleged that the crime was committed by Kamlesh Dwivedi, Devesh Dixit and Umesh Dixit and two unknown persons.

(vi) Based on application/written report, an FIR was registered as Case Crime No. 54 of 2024 under Sections 147, 148, 149, 302 IPC, P.S.-Kakadev, District-Kanpur.

(vii) With regard to Case Crime No. 54 of 2024, the Investigating Officer (in short "I.O.") found that the incident occurred within the jurisdiction of P.S.-Gangaghat, District-Unnao and therefore, the investigation was transferred to the P.S.-Gangaghat, District-Unnoa where it was registered as Case Crime No. 181 of 2004 under Section 304-A IPC.

(viii) I.O. of P.S.-Gangaghat thereafter submitted a final report dated 19.06.2004 and in relation to the said final report, applicant filed a protest petition, which was registered as Misc. Case No. 1140 of 2004 and vide order dated 20.09.2010, the CJM concerned directed for further investigation.

(ix) After the aforesaid order dated 20.09.2010, the I.O. submitted second final report No. 27 of 2011 on 23.02.2011 and against this final report, the applicant filed a protest petition on 10.01.2023.

(x) The Magistrate concerned after considering the material available on record vide its order dated 28.02.2023 registered the protest petition as Complaint Case.

(xi) In the meantime, the applicant also filed a complaint case before the CJM, Kanpur on 11.04.2011, registered as Case No. 3300 of 2011, which was dismissed for want of prosecution on 24.10.2018.

(xii) After dismissal of aforesaid complaint case, the applicant again filed a complaint case on 26.04.2023 before the Chief Metropolitan Magistrate, Kanpur, registered as Complaint Case No. 87261 of 2023, which is pending consideration.

4. In the aforesaid background of the case, present application seeking transfer of transfer of Complaint Case No. 2957 of 2023 alongwith the final report No. 27 of 2011, arsing out of Case Crime No. 54 of 2004 under Sections 147, 148, 149/302 IPC, P.S.-Kakadev, District-Kanpur, Converted Case Crime No. 181 of 2004 under Sections 304A IPC, P.S.-Gangaghat, District-Unnao, from the Court of C.J.M., Unnao to the Metropolitan Magistrate, Kanpur Nagar, has been filed.

5. Considered the aforesaid and perused the record.

6. It is not in dispute that the incident was occurred within the jurisdiction of P.S.-Gangaghat, District-Unnao and in relation to the same, the case is pending consideration.

7. Taking note of undisputed fact of the case as also the relevant provisions of CrPC, including Section(s) 177 to 180, this Court finds no force in the present application. It is accordingly dismissed.

October 7, 2025Vinay/-

(Saurabh Lavania,J.)