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Rex Through Manzoor Hasan Vs. Mohd. Ilyas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Case NumberCriminal Misc. Case No. 1362 of 1949
Judge
Reported inAIR1950All312
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 342, 350, 526, 526(1) and 526(8)
AppellantRex Through Manzoor Hasan
RespondentMohd. Ilyas
Appellant AdvocateJagnandan Lal, Adv.
Respondent AdvocateWaheed Ahmad Khan, Adv.
DispositionApplication rejected
Excerpt:
- - i am not satisfied that this allegation is at all correct. (8) of section 526 was not a perfectly bona fide one or to infer that he was in any way prejudiced against the applicant or had the intention of not affording him a sufficient opportunity for making an application to the high court for the transfer of the case......on behalf of the applicant in support of this application. the first of these points is that the learned magistrate to whom the case had been transferred after a certain amount of evidence had been recorded in the court of another magistrate refused to record the evidence afresh although an application was made to him on behalf of the applicant praying for a trial de novo. such an application was no doubt made on behalf of the applicant on 24th may 1949. but it appears that a fortnight earlier, on 10th may 1949, when the case first came up for hearing before the learned magistrate, he put a definite question to the accused and enquired of him whether he claimed a de novo trial. at that stage he declined a de novo trial and said that he would be content if the witnesses already examined.....
Judgment:
ORDER

Harish Chandra, J.

1. This is an application for the transfer of a case on behalf of the accused Mohammad Ilyas who is being tried in the Court of Shri H.M. Srivastava, Judicial Magistrate, Meerut, Under Section 420, Penal Code on the complaint of one Manzoor Hasan.

2. I have considered the various points raised on behalf of the applicant in support of this application. The first of these points is that the learned Magistrate to whom the case had been transferred after a certain amount of evidence had been recorded in the Court of another Magistrate refused to record the evidence afresh although an application was made to him on behalf of the applicant praying for a trial de novo. Such an application was no doubt made on behalf of the applicant on 24th May 1949. But it appears that a fortnight earlier, on 10th May 1949, when the case first came up for hearing before the learned Magistrate, he put a definite question to the accused and enquired of him whether he claimed a de novo trial. At that stage he declined a de novo trial and said that he would be content if the witnesses already examined were recalled for further cross-examination on his behalf and this prayer was accepted. Obviously, after having once declined to claim a de novo trial, the applicant had no further right to claim it at a latter stage and the application moved on his behalf on 24th May 1949, was obviously misconceived. The learned Magistrate was, therefore, right in rejecting it.

3. The next point raised on behalf of the applicant is that the learned Magistrate was once seen shopping at Delhi during the course of the hearing of this case in the company of one Shri Krishna Gopal Rastogi, advocate, and that when he saw the applicant he made a remark to the said advocate that that was his 'accused.' It is further said that on the following morning, the learned Magistrate was again seen at Delhi accompanied, by a pairokar of the complainant. The learned Magistrate admits that he met Shri Krishna Gopal Rastogi, at Delhi and had some talk with him although he denies that he said anything to him about the applicant. It appears that this lawyer was not appearing on behalf of the complainant at all, but was probably only under training with one of the lawyers who was appearing on behalf of the complainant. The fact that the Magistrate met or talked to a lawyer who was either appearing on behalf of the complainant or was working as a junior under training to one of his lawyers appears to be of no consequence at all, and cannot give rise to any reasonable apprehension in the mind of any normal person that the Magistrate would not try the case impartially. The allegation that on another date the learned Magistrate was seen in the company of a pairokar of the complainant at Delhi is very vague. It appears that in an earlier application made by the applicant before the District Magistrate of Meerut for the transfer of this very case, he has described that person as a friend of the complainant and had not mentioned the fact that he was his pairokar. In the affidavit that was filed on behalf of the applicant in support of that application before the District Magistrate he had particularly referred to the Magistrate having been seen in the company of the compalinant's 'vakils' but he made no mention of the fact that he had also been seen in the company of a friend or pairokar of the complainant. I am not satisfied that this allegation is at all correct.

4. The next point raised on behalf of the applicant is that the learned Magistrate did not examine him after the prosecution witnesses had been further cross-examined on his behalf and thus ignored the provisions of Section 342, Criminal P. C. This may be so, but it cannot be a ground for the transfer of the case. Any irregularity committed by a Magistrate during the course of the trial of a case, need not lead to the inference that be will not try the case with impartiality.

5. It is further pointed out that on two occasions the learned Magistrate issued warrants for the arrest of the applicant. This is, in fact, so and a perusal of the order-sheet shows that he did so when on the date fixed for the hearing of the case, the applicant was absent without any ostensible cause. The warrants were, however, cancelled immediately after the applicant had put in an appearance in Court.

6. Lastly, it is pointed out that although an application was made on behalf of the applicant in the Court of the learned Magistrate on 2nd August 1949, praying for an adjournment of the case to enable him to move an application in the High Court for the transfer of the case from his Court, he did not adjourn the proceedings. The learned Magistrate explains that this was because Sub-section (8) of Section 526, Criminal P. C., did not apply inasmuch as the application was made after the defence had closed its case. He, however, told the applicant that although he would hear the arguments in the case, he would not pronounce judgment for about a fortnight to enable the applicant to move the High Court and to obtain a stay order. The contention of learned counsel for the applicant is that he was not right and that it was his duty to adjourn the proceedings. He points out that the mere fact that the applicant had stated that he did not wish to produce any defence evidence, does not indicate that the defence case had been closed. His contention is that the defence cannot be regarded as having been closed until arguments have also been addressed to the Court on its behalf. There is, however, no provision in the Code of Criminal Procedure for the hearing of arguments in a case tried before a Magistrate although as a matter of practice arguments are always heard before cases are finally decided. The language used in Sub-section (8) of Section 526, Criminal P. C., must be read with reference to the provisions of the Code of Criminal Procedure and the words 'at any stage before the defence closes its case' do not seem to contemplate the hearing of arguments on behalf of the defence and in my view the learned Magistrate was right in holding that the application which was made before him on behalf of the applicant on 2nd August 1949, did not come within the purview of Sub-section (8) of Section 526. He was, therefore, not bound to adjourn the proceedings, The fact that he still gave the applicant an opportunity to bring a stay order from the High Court before the case was finally disposed of, however, indicates that he had no desire to prejudice him in any way.

7. The question whether an application for adjournment under Sub-section (8) of Section 526, Criminal P. C., is entertainable after the defence witnesses have been examined and before the close of the arguments was considered in a Patna case: Ishar Singh v. Shama Dusadh A. I. R. (24) 1937 pat. 131 : (88 Cr. L. J. 484). The learned Judge, however, did not consider himself called upon to decide that point in the particular circumstances of the case although he observed :

'It may however be said with some justification that if the defence argument has not concluded, the defence case has not been closed.'

8. I have also been referred to the report of the Select Committee in connection with the Criminal Procedure Code Amendment Act, 1982, (XXI of 1932) by which Sub-section (8) of Section 526, Criminal P. C., was amended. In that report the Committee observed :

'We think that provision should be made for compulsory adjournment if a party notifies his intention to move for a transfer at any time before the arguments begin, that is to say, at any time before the defence closes its case.'

But for the reason given above, my view is that the words 'at any stage before the defence closes its case,' do not mean 'at any stage before the arguments begin' but have reference to the stage when the defence evidence has been concluded. However, whatever interpretation may be given to Sub-section (8) of Section 526, Criminal P. C., it would be quite unreasonable for anyone to suspect that the action of the learned Magistrate in not adjourning the case on the interpretation of Sub-section. (8) of Section 526 was not a perfectly bona fide one or to infer that he was in any way prejudiced against the applicant or had the intention of not affording him a sufficient opportunity for making an application to the High Court for the transfer of the case.

9. For the reasons given above, the application is rejected. As the arguments in the case were heard by the Magistrate as far back as 3rd August 1949, I think it would be proper if, before deciding the case, he hears arguments in the case afresh on behalf of both the defence and the prosecution. It will also be open to him, before hearing arguments, to give the applicant, if he so chooses, an opportunity of explaining any circumstances that the further cross-examination of the prosecution witnesses on his behalf may have brought to light.

10. As most of the allegations made by the applicant in his application for transfer are absolutely without substance, I direct that he shall pay a sum of Rs. 80/- as costs to the complainant Mansoor Hasan who is represented by Shri Wahid Ahmad Khan in this Court. The compensation is to be paid within six weeks.


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