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Haobam Nongyai Singh Vs. Oinam Tomba Singh and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantHaobam Nongyai Singh
RespondentOinam Tomba Singh and ors.
Prior history
T.N.R. Tirumalpad, J.C.
1. In this revision petition, the petitioner seeks to have the order of the Additional District Magistrate, Manipur, dated 3.1.1961, transferring the two criminal cases No. 54(7)/59 of B.P.S. and No. 6 of 1959, pending trial in the Court of S.D.M., Bishenpur to the Court of S.D.M. Mao, set aside.
2. Both the criminal cases arose out of the same allegations, namely, that the first respondent to whom the petitioner had entrusted 3 buffaloes had cheated, him by selling two
Excerpt:
- - 5. i fail to see any ground for the said transfer. the production of the buffaloes in court at the time of the trial was absolutely necessary as the identification of the buffaloes will be necessary and the magistrate's order was perfectly in order. i fail to see how they could be pressed after the sessions judge's order of transfer, by means of a fresh application before the a......the order of the additional district magistrate, manipur, dated 3.1.1961, transferring the two criminal cases no. 54(7)/59 of b.p.s. and no. 6 of 1959, pending trial in the court of s.d.m., bishenpur to the court of s.d.m. mao, set aside.2. both the criminal cases arose out of the same allegations, namely, that the first respondent to whom the petitioner had entrusted 3 buffaloes had cheated, him by selling two of the buffaloes to the second respondent and the 3rd buffalo to the 3rd respondent. the criminal case no. 54(7)/59 was originally pending before the s.d.c., bishenpur and criminal case no. 6 of 1959 was pending before the s.d.m., bishenpur. the petitioner applied in october, 1959 to the sessions judge for the transfer of criminal case no. 54(7)/59 to a court in imphal and the.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. In this revision petition, the petitioner seeks to have the order of the Additional District Magistrate, Manipur, dated 3.1.1961, transferring the two criminal cases No. 54(7)/59 of B.P.S. and No. 6 of 1959, pending trial in the Court of S.D.M., Bishenpur to the Court of S.D.M. Mao, set aside.

2. Both the criminal cases arose out of the same allegations, namely, that the first respondent to whom the petitioner had entrusted 3 buffaloes had cheated, him by selling two of the buffaloes to the second respondent and the 3rd buffalo to the 3rd respondent. The Criminal Case No. 54(7)/59 was originally pending before the S.D.C., Bishenpur and Criminal Case No. 6 of 1959 was pending before the S.D.M., Bishenpur. The petitioner applied in October, 1959 to the Sessions Judge for the transfer of Criminal Case No. 54(7)/59 to a Court in Imphal and the first respondent also applied to the Sessions Judge for transfer of both the cases to any Magistrate in Imphal. The learned Sessions Judge by his order dated 29.7.1960, transferred Criminal Case No. 54(7)/59 to the Court of S.D.M., Bishenpur. It was more or less a consent order.

3. In the meantime, the petitioner had filed a Civil Suit — Title Suit No. 157 of 1959 for a declaration of his ownership of the buffaloes and1 obtained an injunction for the custody of the buffaloes with him which the S.D.C., Bishenpur had directed to be given to respondent No. 2. Respondent No. 2 had obtained possession of two of the buffaloes and the matter had come up before me and I had set aside the order of the Magistrate and directed the Criminal Court to abide by the order of the Civil Court in that matter. Subsequently, it would appear that in February, 1960, the S.D.M., Bishenpur had directed respondent 2 to produce the buffaloes in Court for the trial of the Criminal case and he was resisting the production.

After the Sessions Judge had directed the transfer of both the Criminal Cases to S.D.M., Bishenpur in July, I960, the Civil Court vacated the injunction and thus respondent 2 continued in possession of two of the buffaloes. Thereafter, the S.D.M. ordered in September, 1960, that respondent No. 2 should produce the buffaloes in Court for the trial of the case on 24.10.1960. At that stage, the respondents filed the petition On 21.10.1960, before the A.D.M. for transfer of the Criminal Cases from the Court of the S.D.M., Bishenpur, on the ground that they entertained grave apprehension that they would not receive fair and impartial trial at the hands of the S.D.M., Bishenpur. On that application the A.D.M., ordered the transfer of the two cases to the S.D.M. Mao. It is against that order that the present application has been filed.

4. I have read the order of the A.D.M., and I am unable to see any ground mentioned in the said order which necessitated the transfer of the two cases. What the A.D.M. has stated is that the Magistrate has directed the production of the buffaloes in Court and that the Civil Court has passed order regarding the custody of the disputed buffaloes and it may not be necessary to seize the buffaloes by the Court as the production of the same is ensured in view of the order of the Civil Court, that he has perused the explanation of the Magistrate and that in the circumstances the transfer of the case to the S.D.M., Mao was ordered.

5. I fail to see any ground for the said transfer. After all, what S.D.M., Bishenpur did was simply to direct the second respondent to produce the two buffaloes in Court. The production of the buffaloes in Court at the time of the trial was absolutely necessary as the identification of the buffaloes will be necessary and the Magistrate's order was perfectly in order. The respondents had absolutely no reason to fear that they will not get as impartial trial merely because the Magistrate had directed the production of the buffaloes which was in the custody of the 2nd respondent. The Magistrate did not order the seizure of the buffaloes or direct them to be kept in the custody of the Court.

I have perused the petition filed by the respondents before the A.D.M. and there is nothing stated in the said petition which would in any way indicate that the respondents should have cause for any fear that they will not get an impartial trial. Moreover, everything mentioned in the said petition transpired before the application for transfer was filed by the parties to the Sessions Court and before the Sessions Judge made a more or less consent order that the S.D.M., Bishenpur, should try the two cases. Thus, what transpired before 29.7.1960 the date of the order of the Sessions Judge cannot be urged before the A.D.M. for transfer of the case. The A.D.M., himself realised this and he stated in his order that none of these matters were pressed before the Sessions Judge. I fail to see how they could be pressed after the Sessions Judge's order of transfer, by means of a fresh application before the A.D.M.

6. When once the Sessions Judge has directed the transfer of criminal cases acting under Section 528(1)(c), it will be improper for the A.D.M. to act under Section 528(2), Cri.P.C. and direct the transfer of the same cases on grounds which could have been urged before the Sessions Judge, but which were not so urged. When the Sessions Judge acts under Section 528(1)(c) he does so as a Court superior to the Additional District Magistrate. When once the superior Court has thus ordered the transfer the A.D.M., cannot thereafter entertain an application under Section 528(2), Cri.P.C. He can only direct the parties to approach the Sessions Judge. Otherwise it will lead to a very anomalous situation and the order of transfer made by the Sessions Judge could be nullified immediately by the Additional District! Magistrate. That cannot be the intention of the Legislature. In any case, the A.D.M. cannot make an order of transfer on grounds which could have been urged before the Sessions Judge in the application for transfer filed before him.

7. The order of the A.D.M. cannot be allowed to stand. The revision petition is, therefore, allowed and the order of the A.D.M. dated 3.1.1961, transferring the two cases to the S.D.M., Mao, is set aside and the S.D.M., Bishenpur is directed to dispose of the cases.


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