Mohd. Zafar vs State
2020 Latest Caselaw 165 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment delivered on 13.01.2020

+        TR.P.(CRL.) 98/2019 & Crl.M.A. 42926/2019(stay).

         MOHD ZAFAR                                   ..... Petitioner

                            Through      Mr. Amardeep Singh with
                                         Ms. Surati Khosla, Advocates

                            versus

         STATE                                        ..... Respondent

                            Through      Mr. G.M. Farooqui, APP for
                                         the State with SI Ramavtar
                                         Gurjar, P.S.: DBG Road

CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI

                               JUDGMENT

BRIJESH SETHI, J.(Oral)

1. This is a petition for transfer of Criminal appeal titled Mohd.

Zafar v. State, bearing no 229/2019 which was lastly pending before

the court of Mr. Ramesh Kumar, Ld. ASJ, Central District, Tis

Hazari Courts to the same presiding officer i.e. Mr. Ramesh Kumar

who is presently posted as ADJ South District, Saket courts, New

Delhi.

2. Ld. Counsel for the petitioner has submitted that the Criminal

Appeal in question was listed for the first time on 01.05.2019 before

the Ld. ASJ. After hearing part arguments, the Ld. Court had

suspended the sentence of the petitioner till the disposal of the

appeal. Thereafter, detailed arguments on behalf of the petitioner

were heard on 11.07.2019, 27.08.2019 and 25.09.2019. The matter

was thereafter listed on 19.011.2019 for remaining/closing of

arguments as well as submissions of the case law/judgments on

behalf of the petitioner. On 19.11.2019, Ld. Counsel for the

petitioner was not feeling well and had sought adjournment. The

hearing of the matter was, thereafter, adjourned for 11.12.2019.

However, before the next date, Ld. ASJ along with 31 other judicial

officers were transferred to different courts in Delhi on 06.12.2012.

Mr. Ramesh Kumar, Ld. ASJ was transferred from Tis Hazari

Courts to District Courts, Saket as an ADJ. It is submitted that no

judicial officer has been appointed/assigned to preside over the said

court and the appeal is now pending for 15.01.2020. It is submitted

that FIR in question relates to the year 2001 and it is an 18 year old

matter, thus, re-hearing of the entire appeal shall only cause

unnecessary delay and wastage of judicial time. It would, therefore,

be expedient in the interest of justice if the matter/appeal is

transferred to the Ld. ASJ under Section 407 Cr.P.C. In this regard,

Ld. Counsel for the petitioner has placed reliance on State v.

D.V.Malhotra, 2016 (2) JCC 856.

3. I have gone through the above case law cited by Ld. Counsel

for the petitioner. There is no quarrel with the proposition of law

laid down therein. However, the said case does not help the

petitioner in the present petition because of its peculiar facts and

circumstances.

4. Ld. APP for the State has submitted that there are no grounds

to transfer the appeal. Ld. ASJ, now stands transferred from Central

District, Tis Hazari Courts to the South District at Saket Courts. Ld.

Counsel for the petitioner can make the submissions before the court

concerned at Tis Hazari courts. No useful purpose would be served

by sending all the records of the appeal to the Ld. ASJ who is

holding a court in a different district.

5. I have considered the rival submissions and perused the

record. Vide a judgment of conviction dated 28.03.2019 and order

on sentence dated 10.04.2019 passed by Mr. Ashu Garg, Ld. CMM,

Central District, Tis Hazari Courts, Delhi, the appellant was

convicted under Section 420 and 471 IPC in case titled as State v.

Mohd. Zafar, FIR bearing no. 254/2001 PS D.B.G. Road. The

petitioner was sentenced to SI for a period of three years and to pay

a fine of Rs. 50,000/- for the offence punishable under Section 471

IPC. He was further sentenced to SI for a period of three years and

to pay a fine of Rs. 50,000/- for the offence punishable under

Section 420 IPC. An appeal was filed and was listed before the

Ld.ASJ Sh. Ramesh Kumar who had suspended the sentence vide

order dated 01.05.2019. The case was, thereafter, listed for

11.07.2019, 27.08.2019 and 25.09.2019 when part arguments were

heard. Thereafter, the matter was listed for 19.11.2019 on which

date the Ld. Counsel for the petitioner had prayed for an

adjournment and the matter was adjourned for 11.12.2019. In the

meantime, the Ld. ASJ stood transferred vide order of the High

Court bearing no. 60/DHC/Gaz./VI.E.2(a)/2019 dated 5th December,

2019 as District Judge, Commercial Court, South District, Saket.

Copy of the order has been placed on record by Ld. Counsel for the

petitioner. The note no. 2 at the end of the said order runs as under:-

The judicial officer under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the posting/transfer order. The judicial officers shall pronounce judgments/orders in all such matters on the date fixed or maximum within a period of 2-3 weeks thereof, notwithstanding the posting/transfer. Date of pronouncement shall be notified in the cause list of the court to which the matter pertains as also of the court to which the judicial officer has been transferred and on the website.

6. Perusal of the above note reveals that transfer order

contemplates that the judicial officers shall notify the cases in which

they had reserved judgments/orders before relinquishing the charge

of the court. The judicial officers were also directed to pronounce

the judgments/orders in all such matters on the date fixed or

maximum within a period of 2-3 weeks thereof. In the present

case, Ld. ASJ had only heard arguments in part. He had not

reserved the judgment in the said case. Thus, as per the said

order, he was not required to pronounce the judgment on the date

fixed or within a period of 2-3 weeks thereafter. The transfer order,

therefore, does not help the Ld. Counsel for the petitioner. This

court is further of the opinion that it will not be in the interest of

justice to transfer the appeal under Section 407 Cr.P.C. from Tis

Hazari Courts to the present posting of Ld. ASJ who is now District

Judge, Commercial Court, South District, Saket Courts and dealing

with Civil (Commercial) matters. Since the Ld. ADJ has only heard

the arguments in part and not finally heard the appeal, the arguments

can now be addressed to the incumbent. Ld. Counsel for the

petitioner has, however, argued that there will be delay in disposal

of the case if the same is not heard by the Ld. ASJ (now District

Judge-Commercial). In this regard, it may be made clear that all the

judicial officers are making earnest efforts to dispose of the old

appeals at the earliest. In the opinion of this court, no useful

purpose would be served by transferring the case from one District

to another along with record and to ask the Ld. District Judge

(Commercial) to hear final arguments in the appeal and pronounce

the judgment as it will not only result in administrative

inconvenience but the Ld. APP who has argued the appeal will also

have to be transferred to Saket Courts or will have to leave his work

at Tis Hazari to make his submissions at Saket Courts. This court is,

therefore, of the considered opinion that there is no such exigency

which warrant transfer of the appeal from Central District, Tis

Hazari Courts to South District, Saket Courts to Ld. District Judge

(Commercial).

7. In view of the above discussion, I find no grounds for transfer

of the Criminal appeal titled Mohd. Zafar v. State, bearing no

229/2019. The transfer petition is, therefore, dismissed and stands

disposed of accordingly along with pending application.

BRIJESH SETHI, J

JANUARY 13, 2020 AK