Raj Kishore Bhag Rai vs State
1968 Latest Caselaw 134 Del

ORDER

1. Shri Raj Kishore has presented an application under Section 526, Cr. P. C. for transfer of two connected cases, State v. Raj Kishore and two others, under sections 332/353/186/224/225/ 34, I. P. C.; and. State v. Raj Kishore under Section 61 of the Punjab Excise Act, from the Court of Shri K.N. Joshi, Magistrate 1st Class. Delhi, to some other competent Court.

2. According to the averments in the application, both the cases were fixed for appearance in the Court of the said Magistrate for 28-3-68, and were adjourned to 8-4-68. On 30-3-1968, the petitioner made an application for change of the date from 8-4-1968 to some other date because of his inability to attend the Court. This prayer was granted and the date was changed to 10-4-1968. In spite of this change, the learned Magistrate on 8-4-1968 ordered non-bailable warrants to issue for the arrest of the petitioner and his co-accused. On 10-4-1968, when the petitioner and the co-accused appeared in Court, they learnt of the warrants having been issued and the next date being 18-4-1968. On the date fixed, the petitioner and the co-accused were getting their bail-bonds written out by the petition writer when the case was called and non-bailable warrants were again issued for the arrest of the petitioner and the co-accused. As soon as the petitioner and his co-accused entered the Court with the bail-bonds, they were taken into custody. The petitioner's application for cancelling the warrants issued was also rejected by the learned Magistrate and the petitioner and the co-accused were sent to jail on 18-4-1968. They were released on bail on 19-4-1968. On 22-5-1968, in the case under Section 332 etc., Guru Datt accused filed an application under Section 528 requesting for 15 days time to enable him to file a transfer application in the Court of the learned Sessions Judge when the learned Magistrate made the following order:-- "P. S. I. is present. Accused are present. P. Ws. Rashid Ahmed, Chandan Singh, Ved Parkash. S.I. Amar Singh are present. Accused Guru Datt has filed an application that he wants to get the case transferred from this Court. On seeing orders on the file it appears that whenever P. Ws. are present, the accused absent themselves. In the same way P. Ws. are present today in Court so that they are nto examined in Court. To file personal bond for Rs. 200/- and to appear in Court on 7-6-68."

On 27-5-1968, after Guru Datt's application was made, the petitioner requested for adjournment of the other case under the Punjab Excise Act, but the learned Magistrate observed that the petitioner should file a separate application. The petitioner, as directed, filed a separate application and also gave a personal bond for Rs. 200/-. The learned Magistrate then made the following order: "The P. S. I. is present. Accused are present. P. Ws. Rashid Ahmed, Chandan Singh, S.L Ved Parkash, Ch. Amar Singh are present. Accused presented an application in court that he wants to get his case transferred. From the orders on file it appears that when P, Ws. appear one accused absents. In the same way P. Ws. are present today so that P. Ws. are nto examined in Court today. He was asked to file personal bond in the sum of Rs. 200/- and obtain orders of transfer by 7-6-1968."

The petitioner feels aggrieved by the observation of the learned Magistrate that the application had been moved by the petitioner so that the P. Ws. are nto examined in Court and the petitioner's counsel argues that this shows that the Court below is inimically inclined towards the petitioner, thereby giving rise to a reasonable apprehension in the petitioner's mind that he would nto get a fair and impartial trial in the court below.

3. In answer to the petitioner's application for transfer made in the Court of the learned Sessions Judge, the learned Magistrate had observed in his comments that the accused had always been adopting delaying tactics whenever witnesses were present. This has also been objected to by the petitioner's learned counsel.

4. In his comments, the learned Magistrate has stated that both the cases in question were fixed for 28-3-1968 for the appearance of the accused, but they were nto present and the cases had to be adjourned to 8-4-1968. At about 3.30 P. M., the counsel for the accused persons appeared in Court and stated that the accused persons were waiting outside the court-room No. 30, in which court-room the cases were being heard earlier and that the accused had no knowledge of the transfer of the cases to the present Court. This, according to the learned counsel, was the reason for their non-appearance. Thereafter, non-bailable warrants issued against the petitioner were cancelled and the cases fixed for 8-4-1968 for prosecution evidence. It appears from the comments that on 30-3-1968, the counsel for the accused had appeared and applied for adjournment of the case to 10-4-1968 and this prayer was granted. Inadvertently, however, the order made on that date could nto be placed on the file by the Reader, as a result whereof the case was heard on 8-4-1968. As the accused did nto appear on 8-4-1968, warrants were issued against them for 18-4-1968. On 10-4-1968, an application was made by the accused and the warrants were cancelled. From verification, it appeared that no warrants had actually been issued by the Court, nor were the accused arrested by_ anybody. The case was adjourned to 18-4-1968. On that date again, the accused were nto present. The prosecution witnesses Ram Sarup, Rashid, Ved Parkash, A. S. I. and Amar Singh, Deputy Superintendent of Police, were present. It was in these circumstances that the warrants were ordered to issue against the accused on 18-4-1968 and the case was adjourned to 27-4-1968. At about 1 p.m, on 18-4-1968 the counsel for the accused appeared and presented an application praying for cancellation of the war- rants issued on 10-4-1868. The counsel was informed on the order dated 10-4-1968 when the case was fixed for 18-4-1968. In spite of this intentional absence on the part of the accused persons, the Court admitted the accused persons to bail on their furnishing a bond amounting to Rs. 5.000/- with one surety in the like amount. The accused were absent from 10 A.M. to 1 P.M. on 18-4-1968 and it was only when the prosecution witnesses had gone away that the accused persons appeared in Court and made an application for cancellation of the warrants. The averments about the accused filing an application for transfer and the Court requiring a personal bond of Rs. 200/- have been admitted.

5. The learned counsel for the petitioner has very strongly relied on the following observations made by Hardy J. in Ganesh Dass v. State, 1967 Delhi Lt 289:

"The petitioner's allegations and the explanation of the learned Magistrate were duly considered by the learned Sessions Judge and the application for transfer was rejected by his order dated 1-12-1966. Ordinarily, therefore, I would have been reluctant to accede to the request made by the petitioner for transfer of the case. But I find that on 10th October, 1966 when the petitioner informed the learned Magistrate about his intention to make an application for transfer of the case from his file, the learned Magistrate recorded the following order:

The accused is present. Suraj Bhan and Darshan Singh PWs. are present. The accused moved the transfer application without any sound reason, just delaying tactics. The accused has been asked to file the Machalka for Rs. 200/-. He is to move the application in the Sessions Court by 24-10-66.'

I am of the view that the learned Magistrate went out of his way in stating in his order 'The accused moved the transfer application without any sound reason just delaying tactics.' It may be that in the circumstances of the case this observation of the learned Magistrate was not- wholly unjustified. But sub-section (8) of S. 526 of the Code of Criminal Procedure confers a right on the accused to obtain an adjournment of the case if he intimates to the Court that he intends to make an application under that section for transfer of his case and all that the Court is entitled to require is that the accused shall execute a bond without sureties of an amount nto exceeding Rs. 200/- to the effect that he will make such application within a reasonable time to be fixed by the Court. The learned Magistrate had no right to comment upon the conduct of the petitioner and to observe that "the application for transfer was being sought to be moved without any sound reason and merely as a part of the delaying tactics. In saying so, the learned Magistrate entered the arena of controversy in which he arrayed himself as a party against the accused."

In the reported case, the Court also referred to the circumstance of the learned trying Magistrate there being acquainted with the D. S. P., who was the brother of the complainant. But this was held nto to be sufficient to warrant the inference that the learned Magistrate would nto do justice in the case. After making this observation, the Court proceeded to record in the order as follows: "But what is to be seen is the cumulative effect of the various incidents alleged in the petition in spite of their denial by the learned Magistrate and the last order made by him on 10th October, 1966. All these, in my opinion, do create a reasonable apprehension in the mind of the petitioner that he will nto receive a fair trial at the hands of the learned Magistrate. The susceptibilities and the apprehension of the accused have an important bearing on the question as to whether a particular case should be ordered to be transferred from one Court to the other. The apprehension has necessarily to be a reasonable one and it is nto the reaction of a hypersensitive or overwrought mind that should weigh with this Court."

The petitioner's counsel has also referred me to my decision in Pran Nath v. State, (1968) 70 Pun Lr (D) 237 where it has been observed that the expression of opinion by the Magistrate that the accused was delaying the trial may justifiably raise an apprehension in the mind of the accused that his case may nto be dealt with by the trial Magistrate with the requisite judicious detachment, objectivity and impartiality and that the Courts should nto do anything which may be suggestive of bias in their mind against any party which is nto judicially supportable on the material on the record. In the case cited the opinion of the Magistrate was held to be wholly unjustified on the record.

6. Section 526, Cr. P. C., provides for the transfer of cases when it appears to the High Court, inter alia.

"(a) that a fair and impartial inquiry or trial cannto be had in any criminal Court subordinate thereto, or

(e that such an order is expedient for the ends of justice.

I have nto reproduced the other parts of the section because this case can by no stretch fall in the clauses which have been omitted. What is reasonable apprehension has, in my opinion, to be decided in each case with reference to its own peculiar incidents and the surrounding circumstances. In determining whether an applicant has a reasonable apprehension, it is the duty of the Court, by placing itself in the position of the accused, to consider the attending facts and circumstances. Abstract reasonableness cannot, normally speaking, be the standard in such cases. It is also correct that the words used by a judicial officer, though susceptible of explanation and traceable to a strong sense of duty, may at times be calculated to create in the mind of the accused an apprehension --which may nto be an imaginary or foolish apprehension-- that he may nto have an impartial trial and, in any event, words used by the Court in a given background may induce the superior Court to hold that it would be expedient for the ends of justice to transfer the case. But the recording of the learned Magistrate's impression, which does nto appear to be baseless, that whenever the P. Ws. appear in Court, some accused persons absent themselves, cannto by itself as a matter of law be held necessarily to give rise to a reasonable apprehension in the mind of the accused persons that they would nto get a fair and impartial trial in the Court. In the decision in Ganesh Dass's case 1967 Delhi Lt 289 it must nto be forgotten that finally the learned Judge came to the conclusion on a consideration of all the circumstances of the case, including what appears to be an extremely important circumstance, that the brother of the complainant was a D. S.P. who was acquainted with the learned Magistrate. I am nto at all minimising the roportance of the highly desirable object to clear away every thing which might engender suspicion and distrust of a court trying a criminal case and to promote the feeling of confidence in the administration of justice which has been recognised to be essential to social order and security. At the same time, this Court is bound in the interest of justice to see that cases are nto transferred lightly and that unless incidents are brought to its notice, which, though susceptible of explanation and may have happened without any real bias in the mind of the Presiding Officer of the Court are such as are calculated to create in the mind of the applicant a justifiable apprehension that he would nto have an impartial trial, the trial should nto be disrupted and transferred from the Court where it is proceeding. The ends of justice can also be defeated by frequent transfer of cases on grounds on which no reasonable mind, placed in the position of the accused, can be held to entertain an apprehension that he would nto get a fair and impartial trial in the Court concerned.

In the present case, I am far from satisfied that any such incident has happened which would justify a reasonable apprehension in the mind of the petitioner. Speedy and uninterrupted trial of j cases, it may be borne in mind, is equally essential to social order and security' and too lightly to transfer cases, may also tend to impair the people's confidence in the administration of justice and in the impartiality and integrity of the Presiding Officers of Courts of Law and justice. When the petitioner applied to the trial Court for adjournment of the case so as to have the same transferred, he could nto have any reasonable apprehension on the basis of the observations contained in the order of adjournment and even before the learned Sessions Judge, when transfer of the case was applied for in that Court, no allegation was made in the application that the learned Magistrate had made any comments in the order staying the proceedings, which had given rise to a reasonable apprehension in the petitioner's mind that he would nto get a fair and impartial trial in the trial Court. The order of the learned Sessions Judge dated 20-7-1968 expressly mentions absence of any such allegation. Apparently, this ground struck the counsel at the time of argument in that Court. I have, therefore, no hesitation in holding that the observation of the learned Magistrate of which capital has been sought to be made by the petitioner's learned counsel is nto enough to give rise to a reasonable or justifiable apprehension in the mind of the accused that he would nto get from the trial Court an impartial trial.

The learned Magistrate was enjoined on the first intimation as a matter of law to adjourn the case as provided by Section 526(8), Cr. P. C. for such period as would afford sufficient time for the' application to be made and an order 1 be obtained thereon. According to paragraph 12, Chapter 26-A, Vol. Iii, High Court Rules & Orders, a period of about 15 days is ordinarily considered to be a reasonable time to allow for the making of an application. The period of adjournment is accordingly a matter of discretion vested in the learned Magistrate. The trial Court granted adjournment on 27-5-19G8 up to 7-6-1968. The observation to which the accused has taken exception was, in my view, relevant for the purpose of supporting the order and it could nto be said to be a gratuitous expression of opinion which could be held to be unjustified or unsupportable on the record and which would show prejudice in the mind of the learned Magistrate against the accused. The two decisions cited by Shri Kalra do nto as a matter of law lay down that all expressions of opinion by the learned Magistrate in the order of adjournment should be held to give rise to a reasonable apprehension in the mind of the accused necessitating an order of transfer by this Court. Merely because S. 526, Cr. P. C. does nto require a Magistrate to make any observations, does nto impose any disability on the learned Magistrate to express a relevant opinion justified on the record. The question requires consideration on the facts of each case.

7. In so far as the question of direct-bag warrants of arrest to issue on 8-4-1968 and 18-4-1968 is concerned, the explanation of the learned Magistrate seems to me to be convincing and here again, I do nto think the accused can have any reasonable apprehension that he would nto get a fair and impartial trial in the Court of the learned Magistrate. I must nto be understood to lay down as a broad and general rule that convincing explanation of the Magistrate must necessarily rule out all possibilities of a reasonable apprehension in the mind of an accused person that he would nto get a fair and impartial trial in that Court. The question, as observed earlier, has to be viewed on the peculiar facts and circumstances of each case and in spite of a convincing explanation on the part of the Magistrate, incidents can be imagined which may give rise to a reasonable apprehension justifying an order of transfer. No legal proposition as a straight jacket fitting all occasions is either possible or desirable to be formulated.

8. In the case in hand, on a consideration of all the relevant facts and circumstances, to which my attention has been drawn, I am unable to conclude that the petitioner has justifiable grounds for entertaining a reasonable apprehension that he would nto get a fair and impartial trial in the Court below. The ends of justice, in my opinion, do nut require transfer of the case. This petition accordingly fails and is dismiss ed. Parties are directed to appear in the trial Court on 3-10-1968 when a short date would be given for further pro ceedings in accordance with law. The learned Magistrate, it is hoped, would try to dispose of this case with due des patch and promptitude.

Drr

9. Petition dismissed.