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Vishwa Nath Vs. Nemo - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Petition (Main) No. 88 of 1969
Judge
Reported in6(1970)DLT226
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 526(1)
AppellantVishwa Nath
RespondentNemo
Advocates: B.B. Vaid, Adv
Cases ReferredLalta v. Zahoor. That
Excerpt:
.....always remain aloof while pressing out arguments in a particular direction. strongobscrvations are often made to compel the counsel to come out with sbastanitial arguments which may firmly establish his case so as to lead sometimes to ultimate success. (6) the learned counsel who has pleaded this application efficiently, has drawn my attention to the judgment of hon'ble mr. i would have liked the mention of any lawyer practicing at this bar who may have refused a brief for kumarsain......singh safeer, j. (1) this is anapplication under section 526 of the code of criminal procedure the learned counsel appearing for the petitioner has placed precise reliance on clause (e) of sub-section (1) of the said section. that provision is an enabling one and is to the effect that whenever it is made to appear to the high court that an order of transfer is expedient for the ends of justice or is required to be made by any provision of the criminal procedure code then a case may by ordered to betransferred from the court trying it to another court. clause (e) which has been referred to above runs into two parts the first part indicates that the high court may be pursuaded on good reasoning that it would be expedient for the ends of justice to transfer the case. the second part of the.....
Judgment:

Pritam Singh Safeer, J.

(1) This is anapplication under Section 526 of the Code of Criminal Procedure The learned counsel appearing for the petitioner has placed precise reliance on clause (e) of sub-section (1) of the said Section. That provision is an enabling one and is to the effect that whenever it is made to appear to the High Court that an order of transfer is expedient for the ends of justice or is required to be made by any provision of the Criminal Procedure Code then a case may by ordered to betransferred from the Court trying it to another Court. Clause (e) which has been referred to above runs into two parts The first part indicates that the High Court may be pursuaded on good reasoning that it would be expedient for the ends of justice to transfer the case. The second part of the foregoing clause contains a kind of compulsion which is to the effect that if any provision contained in the Code of Criminal Procedure indicates that a transfer is merited then the case may be ordered to be transferred. No provision of the Code of Criminal Procedure is pleaded in terms whare of counsel may have been able to submit that the case deserves to be t'ansferr3d. It is urged that it is expedient in the interest of justice to transfer the case.

(2) A transfer application was first dealt with by the learned Sessions Judge. Kinaaur. The allegations made before him have been repeated before this Court. Those allegations are two fold. The first is that Kumarsain is a place where no local lawyer is available and lawyers have to go to that place either from Theog or from some other nearby place where they may be available. It is an acknowledged fact that the Court of the Magistrate Second Class does function at Kumarsain- If the first contention is accepted that no lawyers are available at Kumarsaia and for that reason the case may be transferred then instead of causing the transfer of this case every criminal case which is being tried at Kumarsain would merit to be transferred from that Court. I do nto see any reason why that Court should nto be abolished merely because no lawyer is available there. I have deliberately used the foregoing phraseology in the preceding sentence in order to clearly expose the absurdity involved in this type of contention

(3) I must observe that in these particular areas of this country which are hilly areas and which are populated by poor people cheap and expeditious justice ought to be available at their door. I am inclined to imagine that a time might arrive when the Courts of justice may be sprinkled over these areas at smaller geographical stretches than those at which they are available today, ft is the citizens' right to get justice expeditiously and newer home without being put to greater expense exertion and delay. No democratic set up c'n provide a comfortable answer to the sovereign will of the people if their bare necessity of achieving expeditious disposal of their civil and criminal disputes is nto made available to them. No Court of law. much less this Court can afford to sustain a negation of democracy. The first contention raised, thereforee, stands repelled. So long as the Court of competent jurisdiction is available at any place it cannto be shorn .of its powers on flimsy pretexts.

(4) I had sent for the comments furnished to the learned Sessions Judge by the Magistrate in this case for the reason that the second contention raised was that the Magistrate had used strong language in expressing his views against the present petitioner. It is very significant that throughout these proceedings the petitioner has made the choice of keeping secret, the words allegedly used by the Magistrate. He has no where stated, either before the Sessions Judge or before this Court, as to what were the exact words which were used by the Magistrate so as to establish a judicial prejudice which may legitimately be held to have given the petitioner an apprehension that he will nto obtain justice. Even in the absence of clear allegations I wanted to persue the comments furnished by the Magistrate to the learned Sessions Judge. The reason was that in case I had come accross anything in those comments disclosing any effort on the part of the Magistrate to keep the case to himself then I would have taken it out of his hands. It is, however, very significant that the comments offered by the Magistrate contain a request in the following words: -

'HOWEVER,if the applicant feels that he would nto get justice from this Court, his case may kindly be transferred to some other Court.'

(5) I cannto desist from holding that such a request could emanate only from a fair and just mind. That being the situation I am reminded of the observations which the Judges of this Court as well as of the Hon'ble the Supreme Court of India, of which I do claim some experience, make in the course of hearing of the cases. Sometimes the observations are quite strong but it is a quality of the judicial mind to always remain aloof while pressing out arguments in a particular direction. Strongobscrvations are often made to compel the counsel to come out with sbastanitial arguments which may firmly establish his case so as to lead sometimes to ultimate success. stray observations mode by any Court of justice cannto form the has's of any successful transfer application. It would be a had day indeed if the cases are lightly transferred because by implicalion that -would mean that the officers from whose Courts cases are transferred are nto quite capable of exercising the judicial capacity of their mind which is expected of them as a pre requisite to their holding of their respectiye offices. I have made these detailed observations in order io unsaved many aspects which may otherwise remain behind the smoke-screen.

(6) The learned counsel who has pleaded this application efficiently, has drawn my attention to the judgment of Hon'ble Mr. Justice T. V. R. Tatachari in a case which arose under Section 408 and 409 of the Indian Penal Code and which involved intricate interpretation of lengthy accounts on the basis of which alone it could be inferred whether there where any fabrications in the account books leading to the ultimate conclusions regarding any misappropriations that may have been made. That Judgment does i of provide any parallel to the instant case where the charge is one under Section 182 of the Indian Penal Code and the Court at Kumarsain is to determine on facts whether the present petitioner before this Court had lodged or nto lodged any false report at the police station. The case of this type depending upon simple facts can have no similarily with the case which was before Hon'Me Mr. Justice T. V. R. Tatachari. Another case relied upon by the learned cousel appearing for the petitioner is Lalta v. Zahoor. That case depended upon peculiar circumstance which was to the effect that no practitioner in a particular district was willing to act for the accused. That situation has nto been pleaded here. No instance has been cited at the Bar showing that are any particular case at Kumarsain has gone unattended by counsel although the assistance of the counsel had been sought by a client. In such a situation if any affiavit had been filed I would have called for the files of decided cases even and searched for truth. It has nto been mentioned at all on affidavit or otherwise that any particular counsel who is practicing as an advocate of this Court has ever refused to conduct the case at Kumarsa in. I would have liked the mention of any lawyer practicing at this Bar who may have refused a brief for Kumarsain.

(7) In the foregoing circumstances I find no merit in this application and the same is hereby dismissed.

(8) While recording the foregoing dismissal I am inclined to observe that the petitioner who is residing at Simla should nto be put to any inconvenience in respect of the trial against him which may start at Kurnarsain as from the 16th of March, 1960. This part of the order is being made on account of a request specifically made by the learned counsel appearing for the petitioner and the date indicated is also the one requested for by him. As from the 16th of March, 1970, however, the hearing must. be so expedited so as to conclude the caee within a period of three months. The petitioner is directed to appear before the trial Court on the 16th of March, 1970. Petition Dismissed Chand had no independent right surviving 10 him after the Corporation declines to contest its liability, the question of his locus standi could nto be decided against Hari Chand. As a general rule, a party to a legal proceeding, feeling aggrieved by an order made against him, in entitled to go up in appeal and unless it is considered on the merits that his right had, as a matter of law being lost because of something happening in the interval, otherwise, his right of appeal could not, on general principles, be taken away. As to how far the Court to grant such relief in favor of the respondent would be applicable to a case where the principal party whom a decree is made, which is rendered binding en the subsidiary party, has nto chosen to appeal from the impugned order or decree would also have to be considered by the Tribunal judicially after bearing proper arguments and coming to the recessary corclusion. This equitable doctrine empowering the appellate Court grant relief to non-appealing party, requires proper balancing cf several rules of law in the light of the facts of each case. Settled breed gederal principles can easily be found admubrated in the law reports

(8) As a result of the foregoing conclusion, I am ccnstrained to allow this appeal and setting aside the order of the learned Rent Control Tribunal, send the case back to it for a fresh elecitian of the appeal in accordance with law and in the light of the observations made above. This order is nto to be constured an expression of any considered opinion on the merits of the points in controversy. The parties are directed to appear before the learned Tribunal on 21 July, 1969 and it is hoped that the appeal would be disposed of within two weeks thereafter. This contry versy seems to have been somewhat unduly prolonged. There will be no ordre as to costs of these proceedings.


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