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Ashiq HusaIn Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All379; 24Ind.Cas.848
AppellantAshiq Husain
RespondentEmperor
Excerpt:
.....framed, he has only himself to thank if the facts and allegations eventually put forward by him are received with distrust, and even with incredulity, by the court before which they are.....piggott, j.1. the applicant, ashiq husain, is on his trial before the court of a special magistrate of the moradabad district on a charge of an offence under section 498, indian penal code. he has applied for the transfer of the case, on the allegation that he entertains a reasonable apprehension that he will not have a fair and impartial trial in the court before which the case is now pending. the affidavit upon which this application is based contains a number of allegations as to matters antecedent to institution of the case now pending, and also certain allegations regarding the special magistrate's conduct of the case itself. now all the facts falling under the former head were known to the applicant the very day that process was issued to him from the special magistrate's court. it.....
Judgment:

Piggott, J.

1. The applicant, Ashiq Husain, is on his trial before the Court of a Special Magistrate of the Moradabad district on a charge of an offence under Section 498, Indian Penal Code. He has applied for the transfer of the case, on the allegation that he entertains a reasonable apprehension that he will not have a fair and impartial trial in the Court before which the case is now pending. The affidavit upon which this application is based contains a number of allegations as to matters antecedent to institution of the case now pending, and also certain allegations regarding the Special Magistrate's conduct of the case itself. Now all the facts falling under the former head were known to the applicant the very day that process was issued to him from the Special Magistrate's Court. It is clear that they had not by themselves created any apprehension in his mind that he was not likely to receive a fair and impartial trial in the Court of this particular Magistrate. It might perhaps be suggested that these antecedent circumstances have assumed a different colour in the mind of Ashiq Husain since he has been put on his trial and has observed the conduct of the Special Magistrate in the course of the trial itself. I find however that after a charge had been framed an application for transfer of the case was made to the District Magistrate of Moradabad. In this application all the circumstances connected with the conduct of the Special Magistrate during the trial of the case, which are alleged in the affidavit now before me, were put forward with the exception of one allegation contained in paragraph 8 of the said affidavit. The statements made in that paragraph are denied in an explanation which has been submitted by the Special Magistrate. I decline to go further into the matter. If the facts alleged in paragraph 8 of this affidavit had occurred as now put forward and had impressed themselves on the mind of Ashiq Husain or on that of his legal adviser in the light in which it is now sought to place them before this Court, it is clear that these allegations would have been laid before the District Magistrate when he was asked to transfer the case. I have had the advantage of reading the order which the District Magistrate passed. It is a careful and well considered order on the materials before him and he was undoubtedly right in holding that no case had been made out in support of the application for transfer. Under these circumstances I think it would be most improper for me to pass an order for transfer. The application lies under strong suspicion of not being made bona fide, but with intent to trouble and harass the prosecution witnesses. All applications for transfer under Section 526 of the Code of Criminal Procedure ought to be put forward at the earliest possible opportunity after the occurrence of whatever facts or circumstances are alleged as affording reasonable basis for such application. If an accused person, with materials in his hands upon which he feels satisfied that he can at any moment make out a good case for an order for transfer, elects to sit quiet and allow the trial to proceed until the examination of all the prosecution witnesses is concluded and the charge framed, he has only himself to thank if the facts and allegations eventually put forward by him are received with distrust, and even with incredulity, by the Court before which they are laid.

2. I dismiss this application.


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