Mohammad Abas vs State Of J&K And Others
2021 Latest Caselaw 232 j&K/2

                                                                   Sr. No. 236
              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
CJ Court

Case: CRTA No. 14 of 2017


Mohammad Abas                                         ...Petitioner(s)/Appellant(s)
                                   Through: Sh. M. A. Qayoom, Advocate and
                                            Sh. Mian Tufail, Advocate.

                          v/s
State of J&K and others
                                                                 .... Respondent(s)
                                   Through: Sh. Bikramdeep Singh, G.A.

       CORAM: HON'BLE THE CHIEF JUSTICE


                                       ORDER

1. Heard Sh. M. A. Qayoom, learned counsel assisted by Sh. Mian

Tufail, learned counsel appearing for the petitioner and Sh. Bikramdeep Singh,

learned G.A. for the respondent.

2. The petition is for the transfer of criminal appeal No. 49 of 2013,

Mohammad Abas v. State of Jammu and Kashmir pending before the Jammu

Wing of the High Court to its Srinagar Wing.

3. The petitioner is a convict under Section 302 RPC vide judgment

and order dated 19.06.2013 passed by the Principal Session Judge, Kisthwar

sentencing him to rigorous imprisonment for life and a fine of ₹5,000/-. The

said judgment and order of conviction is under challenge in the aforesaid

criminal appeal No. 49 of 2013 which is pending in the Jammu Wing of the

J&K High Court.

4. It is alleged that petitioner is a poor person and is not in a position

even to pay fee for the counsel who has been engaged for contesting his appeal

before the Jammu Wing of the High Court. The petitioner addressed an

application to the President, Bar Association Srinagar for necessary legal aid

and assistance through the Superintendent Central Jail, Kot Bhalwal, Jammu.

The President of the Bar Association Srinagar has informed the petitioner that

unless the appeal is transferred to the Srinagar Wing, he cannot contest it on his

behalf. It is for this reason that the petitioner is seeking the transfer of an

appeal from Jammu Wing to Srinagar Wing.

5. Sh. Qayoom has further submitted that the petitioner has been

transferred from Central Jail Jammu, Kot Bhalwal to the Central Jail Srinagar

vide order of the Director General of Police dated 10.03.2017 and since the

petitioner is lodged in Central Jail Srinagar, it is necessary that the appeal may

also be heard by the Srinagar Wing of the High Court.

6. Section 407 of the Criminal Procedure Code provides for the

power of the High Court to transfer cases and appeals under certain

contingencies. The said power of transfer is from one court to another, may be

from one subordinate court to another of equivalent jurisdiction or from one

subordinate court to a court of superior jurisdiction or to the High Court itself

for trial.

7. The transfer of a case from one wing to another wing of the High

Court is not exactly a transfer of the case from one court to another. It is simply

a shifting of case within the same court by way of allotment or assignment.

8. Rule 23 of the J&K High Court Rules 1999 provides for the

constitution of benches and empowers the Chief Justice to assign work to

judges sitting singly or in Division Bench and they are supposed to do such

work as may be allotted to them by the Chief Justice. In other words, the Chief

Justice of the High Court has a prerogative to distribute work of the court both

judicially and administratively.

9. In H S Rainal v. Union of India and others, 1994 (2) SLJ 315,

the Division Bench of this court observed that High Court of J&K is one

indivisible court with its place of sitting at Srinagar and Jammu both. The

Chief Justice has the power to determine the place and period for which a

particular judge will sit at Jammu or Srinagar. It is further at the discretion of

the Chief Justice to transfer the case from one wing to another wing of the J&K

High Court i.e. from Srinagar to Jammu and vice-versa. The Chief Justice has

the sole prerogative, in his wisdom to see as to what work can be allotted to a

particular judge/bench by him and at which place. The Chief Justice can suo

motu on the application of the litigant has the power to decide as to which case

would be heard by which judge and at what place of sitting.

10. In Ghulam Nabi Shaida v. Chandan Mitra and another, 2007 (1)

JKJ 577 [HC], while interpreting the powers of the Chief Justice under Rule

23 of the High Court Rules, 1999, the Court held a petition filed for transfer of

the case or any proceedings thereof from one wing of the High Court to another

partakes the character of legal proceedings and is a 'case', liable to transfer

from one wing of the court to another and vice-versa.

11. In view of the above legal position, it is undisputed that the Chief

Justice on judicial as well as administrative side can assign a case pending

before the High Court to any judge and may even decide the place of sitting of

the said Judge to hear the said case and that transfer of case from one wing to

another would not actually be a transfer in the strict sense of the meaning of the

word 'transfer' as High Court is one and indivisible with two places of sitting

whereas the transfer envisages transfer from one court to another. However,

such power of transfer either administratively or judicially cannot be exercised

by the Chief Justice at his whims in an arbitrary manner or simply on the

demand made by either of the parties and has to be exercised on some sound

principles.

12. In the instant case, the transfer from one wing to another is being

sought only on two counts. First that the petitioner is presently lodged in

Central Jail Srinagar and secondly he is a poor person who does not even

possesses means to pay the fees of a lawyer who has been engaged by him to

argue the case at Jammu.

13. It is important to note that the case sought to be transferred by the

petitioner from Jammu to Srinagar is a criminal appeal. In a Criminal Appeal

presence of the parties or of the petitioner who is a convict is not necessary

before the High Court and that the same can be decided on the basis of the

record and the arguments advanced by the counsel on his behalf. Therefore, the

place of detention of the petitioner whether it happens to be Srinagar or Jammu

is not material and of no consequence for the purposes of transferring the

criminal appeal.

14. The said criminal appeal is pending since 2013 and it must be

decided expeditiously. Already 7 years have passed since the appeal was filed

in the High Court and that any order at this juncture to transfer it to another

wing of the High Court would entail further delay which would be unnecessary

and detrimental to the petitioner himself.

15. The petitioner has already engaged a lawyer of his choice to argue

the appeal at Jammu. It is not the case of the petitioner that the counsel so

engaged by him is not competent or is not in a position to look after his

interest. The transfer of the case to Srinagar would certainly involve

engagement of another counsel which otherwise is not in the fitness of things.

16. The President of the Bar Association, Srinagar may be ready to

argue his case if it is shifted to Srinagar as it is not possible for him to come

down to Jammu for the purpose. However, the petitioner has nowhere

expressed any willingness to get his case argued at Srinagar by the President of

the Bar Association, Srinagar. He has not approached the Bar Association,

Jammu for any help in this regard.

17. The issue of engaging a good or proper lawyer at Jammu for

arguing appeal on his behalf and the payment of fee can be taken care of by

allowing the petitioner to choose any lawyer of his choice from amongst the

panel of lawyers of the High Court Legal Services Committee or by directing

the said Committee to provide necessary financial assistance to the petitioner

by paying reasonable fee to the lawyer of his choice, may be the counsel who

has been engaged by him at Jammu.

18. In view of the aforesaid facts and circumstances, I do not deem it

necessary to transfer the aforesaid appeal from the Jammu Wing of the High

Court to Srinagar and dispose of this petition with liberty to the petitioner to

approach the Legal Services Committee of the High Court for providing

financial assistance or a service of a competent lawyer of his choice from the

penal for the purposes of arguing the aforesaid appeal on his behalf. It is

expected that if the petitioner so approaches, the High Court Legal Services

Committee would take up the matter on priority and do its best to provide legal

aid to the petitioner as expected above. The Chairman of the High Court Legal

Services Committee is requested to treat the request of petitioner as a special

case.

19. The petition is disposed of.

(PANKAJ MITHAL) CHIEF JUSTICE Jammu 26.02.2021 Raj Kumar

Whether the order is speaking?: Yes/No.

Whether the order is reportable?: Yes/No.

RAJ KUMAR 2021.03.02 17:05 I attest to the accuracy and integrity of this document