1. The petitioner has applied under Section 526 Cr. P. C., for the transfer of case No. 2/3 of 1967 (K. P. Hati v. Daljit Singh) pending in the Court of Shri Madan Jha, Sub-Divisional Magistrate, New Delhi. The case mentioned above arises out of a complaint under Section. 135 of the Customs Act, and according to the averments in the transfer application which are relevant for our present purpose, on 4-9-1968, the applicant along with his counsel appeared in the Court of the learned Magistrate at 3.30 P.M. which was the time fixed for further cross-examination of P. W. 2, Shri P. N. Suri. The counsel for the accused was informed by the Reader of the Court that the learned Magistrate had adjourned the Court at 3 P. M. and left instructions for the counsel to wait till his return. At about 4.45 P.M., the learned Magistrate came back and the case was called. The counsel for the complainant requested for adjournment on the ground that it was nto convenient for the Customs Authorities to deposit the case property after 4.30 P. M. in their Malkhana. On this oral request, the case was adjourned to 6-9-1968. The counsel for the accused stated that he was busy in the early hours of the morning on 6-9-1968 before a learned Single Judge of the High Court and had gto another case of his fixed at 2.30 P.M. in the Court of Shri N. C. Jain, Sub-Divisional Magistrate, New Delhi. In these circum- stances, it was prayed that the case in question be fixed on some other date.
The Presiding Officer, according to the averments contained in the transfer application, remarked that the counsel should get his other cases adjourned on 6-9-1968 and attend to the present case. The counsel expressed his inability to attend to the present case because of his occupations in other Courts. The learned Magistrate thereupon remarked that he was nto interested in the presence of the counsel but was only interested in the presence of the accused. During this short interval, so proceeds the grievance of the accused, no alternative arrangement could be made for engaging a counsel in place of Shri C. Talwar. Shri R. N. Kapoor, Advocate, when approached, expressed his inability to get ready for the cross-examination of Shri P. N. Suri, who was a very important witness in the case. On 6-9-1968, the accused then moved an application for adjournment in the Court below on the ground, inter alia, that the counsel was unable to attend the Court and no other alternative arrangement for defense could be made. The learned Magistrate summarily dismissed this application with the word 'file.' After rejecting this application, the learned Magistrate directed the accused to cross-examine the witness concerned. A request was again made by the accused to give him time to brief another counsel but the same was rejected. It was thereafter recorded that there was no cross-examination, though opportunity was given. This rejection of the application, which is described as arbitrary, has, according to the accused, resulted in grave miscarriage of justice and has also led to an apprehension in the mind of the applicant that he would nto get a fair and impartial trial in the Court of Shri Madan Jha.
After the examination of Shri P. N. Suri, the learned Magistrate called upon the prosecutor to produce other witnesses, but when informed that the other witnesses had nto been summoned for that day, the learned Magistrate directed the prosecutor to send a special messenger and get the witnesses in Court. As the special messenger could nto be sent, the Presiding Officer directed the prosecutor to contact the witnesses on telephone. The official witnesses, however, were busy on different assignments and, according to the prosecutor, the non-official witnesses could only be summoned by the Court. Being faced with this situation, the learned Magistrate observed that he was anxious to finish the case. These are the only averments on which Jagjit Singh J., before whom this application came up at the motion stage, required the Magistrate to send his comments. On the other averments in the application, no comments were invited by the Motion Judge.
In his comments, the learned Magistrate has admitted that on 4-9-1968, on his return from law and order duty at about 4.30 P. M. the accused was present with his counsel and the prosecutor requested for adjournment because the case property was to be deposited in the customs Malkhana. According to the learned Magistrate, such deposit in the customs Malkhana is almost invariably to be made by 4.30 P.M. This request for adjournment was nto opposed by the defense counsel and the grounds were considered sufficient for acceding to the request. It is also admitted that the counsel for the accused told the learned Magistrate that on 6-9-1968, he was busy in the High Court, but the counsel also informed the learned Magistrate that he would be coming to the Court of Shri N. C. Jain, Sub-Divisional Magistrate, which is housed in the same building in which the Court of Shri Madan Jha sits. The counsel for the accused was, in the circumstances, requested to attend to the present case, assuring him that it could be taken up in such manner so as nto to come into conflict with the other case to be attended to by the counsel. This was, however, nto acceptable to the counsel who insisted on having some other date. It was in these circumstances that he rejected the request for fixing the case to some date Other than 6-9-1968.
On 4-9-1968, according to the learned Magistrate comments, he had assured the counsel for the accused that the case would be taken up on the arrival of the counsel and it was for this reason that the application filed by the accused was kept pending as the learned Magistrate was waiting for his counsel to attend to the cross-examination of the witness. The Court of Shri Jain, according to the Explanationn, is only a few yards away from the trial Court and after waiting for a long time for the counsel for the accused, the court had to start the case and close the cross-examination. The learned Magistrate has denied that he showed any haste in examining the other witnesses on 6-9-1968. According to him, a direction was given to the Customs Authorities to bring their remaining witnesses on 9-9-1968 because the learned Magistrate was anxious nto to delay this case any longer. The story about the telephone having been given to the prosecutor for contacting the witnesses, has been categorically denied. The learned Magistrate has added that this case has been delayed because at every convenient stage the accused had been filing applications of one kind or the other. The case being more than one year old, the learned Magistrate has explained that he was anxious to see that it is speedily disposed of.
2. The learned counsel for the accused has taken serious objection to the disinclination of the learned Magistrate to agree with the suggestion of the counsel for the accused nto to fix this case on 6-9-1968. It is submitted that such disinclination in the present case has given rise to an apprehension in the mind of the accused person that he would nto get a fair and impartial trial in the Court below. If the counsel was busy in some other Court, he was entitled to ask for adjournment of this case and refusal to accede to such a prayer, according to the learned counsel, must have a tendency to shake the confidence of the accused in the integrity and impartiality of the Court. The other circumstance on which the learned counsel has laid emphasis is that the learned Magistrate has in his comments wrongly imputed the cause of delay to the conduct of the accused-petitioner. According to him, delay has been caused by other reasons and the petitioner has nto been guilty of the delaying tactics of which he has been accused by the learned Magistrate. This factor, so argues the learned counsel, has strengthened the reasonable apprehension in the mind of the accused that he cannto expect a fair trial in the Court below.
3. I quite agree with the learned counsel for the accused that in dealing with an application for transfer, the Court has to consider nto only the question whether there has been any real bias in the mind of the Magistrate against the applicant, but also the additional question whether incidents may nto have happened which, though they may be susceptible of Explanationn, and may have happened without their being any real bias in the mind of the Magistrate, are nevertheless such as are calculated to create in the mind of the accused-applicant a justifiable apprehension that he would nto have an impartial trial. It is the state of mind of the accused which is to be seen and nto the impression of the Court in regard to the said incidents. The apprehension must, nevertheless, be reasonable and nto the result of the reaction of a hypersensitive mind. It must nto be indicative either of a desire on the part of the accused to create a situation for claiming transfer of the case or of unduly excessive sensitiveness. Of course, the Court has to attempt to place itself in the position of the accused in a given case, keeping in view all the attending circumstances, but the accused must nto be unduly imaginative to see bias where it cannto be reasonably seen from the position which the accused occupies. Every case has thus to be dealt with on its own peculiar facts and it is neither desirable nor possible to lay any rigid rule which would serve as a straight-jacket in all cases.
In the case in hand, no attempt has been made to show that the learned Magistrate has any real bias in his mind. All that has been urged is that the refusal to grant adjournment and the expression of opinion that the accused has been adopting delaying tactics are calculated to create in the petitioner's mind a justifiable apprehension that he would nto have an impartial trial. I am wholly unable to sustain this submission. The Presiding Officer of a Court is the sole master of the proceedings before it and it is for him to fix the next date of hearing when he is adjourning the case. No party to a proceeding in a Court of law and justice can insist, as a matter of right, that it must be adjourned to a date convenient to him alone and it is for the Court to judicially consider, inter alia, the state of work in the Court, the nature and history of the case and the convenience of the parties and the witnesses. An ordinary judicial order fixing a date made in due course, without more, is, as a general rule, nto to form the basis of a transfer application merely because it does nto happen to suit the counsel for the accused. Such a decision has indisputably to rest with the Presiding Officer and the professional preoccupation of the counsel for the accused is by no means conclusive, though it is, without doubt, entitled to reasonable consideration along with other relevant factors which may nto be considered to be of lesser importance to the larger cause of the judicial process.
The position of Magistrates in areas where the Judiciary is nto separated from the Executive is somewhat different from that of the Magistrates, in areas where there is such a separation. In the former, the Magistrates have to keep in view their executive and administrative functions and while adjourning cases they cannto completely ignore them. Everyone concerned with cases before such Magistrates has to adjust his activities in this background. However unsatisfactory this situation may be from the larger point of view of criminal judicial administration in Delhi, and however anxious this Court and the other authorities may be to expedite separation of the judiciary from the executive, the fact remains that if in the existing state of affairs, a Presiding Officer is nto able to fully satisfy the convenience of the counsel for the accused, it cannot, for that reason alone, be held that the Magistrate is biased against the accused person or that the accused should be held, for that reason alone, to entertain a reasonable apprehension that he would nto get an impartial trial in that Court, In such cases, the counsel may well be expected to explain to the accused that mere disinclination of the Magistrate to fix the next date in the case to suit the convenience of the counsel does nto mean that he would nto deal with the case fairly and impartially.
The Bench and the Bar, it may be pointed out, must feel equally interested in the smooth administration of justice and in maintaining the confidence of the people in such administration. The Bar has, for this reason, a duty to disabuse the mind of hyper-sensitive accused persons and remove any possible impression that they may be tempted to entertain against the impartiality and fairness of the Courts founded merely on the disinclination of the Courts to fix dates of hearings on the sole convenience of the counsel for the defense. Nto to do so, may reflect, even though it may nto be correct, that the accused is anxious to have an adjournment at all costs. In regard to the comments of the learned Magistrate also, I have nto been able to persuade myself to hold that on the facts and circumstances of this case, the expression of opinion by him that the accused has been delaying the trial is sufficient to give rise to a reasonable apprehension in the mind of the petitioner that he would nto get an impartial trial in the Court below. I am assuming, without holding, that the various dates mentioned by the petitioner in the resume of the dates of hearing, represent the correct state of affairs, Shri Madan Jha, the learned Magistrate, it is common ground, took charge of this case on 9-8-1968, During its few hearings since that date, it is obvious that nothing else that may have happened, has been suggested to give rise to any reasonable apprehension in the mind of the accused doubting judicial impartiality of the Presiding Officer. It is urged that in the comments the learned Magistrate has gone out of his way to suggest that the accused has resorted to delaying tactics. May be, that, technically speaking, this remark could very well have been avoided by the learned Magistrate, but I do nto think this by itself would, on the peculiar facts and circumstances of this case, constitute a ground which may reasonably give rise to an apprehension in the petitioner's mind that the Magistrate would nto deal with the case on the merits in a fair, impartial and just manner. I do nto minimise the desirability of the Magistrates confining their comments only to the averments made in the petition on which their comments are invited and to those relevant points which may be considered to be necessary to explain their comments. But this does nto necessarily mean that a disclosure of his impression in the comments that the accused has been delaying the trial must necessarily by itself, In all cases, be held to give rise to a reasonable apprehension in the mind of the accused that he would nto get a fair and impartial trial in the Court concerned. Each case has to be decided on its own facts, and in this case, the manner in which the accused has persisted in his disinclination to submit to the order of the Court fixing the next hearing on 6-9-1968 may well tend to give rise to an impression that he wanted to delay the proceedings. And then, on this aspect, which could nto form part of the grounds of the transfer application, there is nothing to show as to what effect it had on the mind of the accused-petitioner. The point is only taken up by the counsel in his arguments.
4. The learned Magistrate would, I have no doubt, deal with the case on the material on the record with the judicial impartiality, detachment and objectivity, expected of the Courts in this Republic. It may before closing be pointed out that the learned Sessions Judge had also nto found any cogent ground for transferring the case.
5. For all the foregoing reasons, this petition fails and is dismissed.
6. Petition dismissed.