Skip to content


Dr. Harisingh Harnamsingh Khalsa Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1970CriLJ1695; (1970)11GLR1072
AppellantDr. Harisingh Harnamsingh Khalsa
RespondentState of Gujarat and ors.
Cases ReferredAnnubeg v. King
Excerpt:
.....the court requiring the advocate to address the court and in case he were out to submit his written arguments, he may well keep them aside and ask him to address the court. he may not be quite relevant or may not be able express his point well and fully. it may well be that they may not form a part of the record since they may not be exhibited in the case. if the other party was to be heard, a copy of such written arguments can well be obtained and given over to the other side to meet the same. then it says that if it becomes necessary, as in some exceptional case it may become necessary, for the judge either to require or to receive notes of the pleader's arguments, such notes ought not to be submitted to the judge by the pleader on one side without first submitting the notes to..........is the complainant in two criminal oases nos. 178 and 1186 of 1968 filed in the court of the city magistrate, 4th court, ahmedabad, under section 24(4) of the bom-bay rent control act against harbhajankaur, daughter of dhundasingh, and her father dhundasingh ladhusing. there were three other criminal cases such as cases nos. 1292, 2291 and 2292 of 1963 filed against him in the same court. on 18-3-69 the petitioner filed transfer application no. 8 of 1969 in the court of the chief city magistrate, ahmedabad, presumably under section 528 (2) of the criminal p. c., inter alia alleging that in view of the attitude of the learned magistrate in the court he has reasonable apprehension that he will not . get fair and impartial trial in the said court. it appears that the application was.....
Judgment:
ORDER

Shelat, J.

1. The petitioner is the complainant in two Criminal Oases Nos. 178 and 1186 of 1968 filed in the Court of the City Magistrate, 4th Court, Ahmedabad, under Section 24(4) of the Bom-bay Rent Control Act against Harbhajankaur, daughter of Dhundasingh, and her father Dhundasingh Ladhusing. There were three other criminal cases such as Cases Nos. 1292, 2291 and 2292 of 1963 filed against him in the same Court. On 18-3-69 the petitioner filed Transfer Application No. 8 of 1969 in the Court of the Chief City Magistrate, Ahmedabad, presumably under Section 528 (2) of the Criminal P. C., inter alia alleging that in view of the attitude of the learned Magistrate in the Court he has reasonable apprehension that he will not . get fair and impartial trial in the said Court. It appears that the application was kept for preliminary hearing on 26-3-69. On that day he orally requested for time to engage an advocate. He was asked to give an application in writing and for that he was given some time. He, however, did not turn up and consequently the matter was adjourned to 28-3-69, 27th being a holiday. On that day also he asked for sometime to produce an affidavit of the advocate : who represented him in those cases in support of his application and also to engage an advocate for the preliminary hearing of his application. The case was consequently adjourned by the learned Chief City Magistrate, Ahmedabad, to 9-4-69 and it was fixed for preliminary hearing. On that day, he gave the present application Ex. M/4 on that day according to the applicant, he was not in a position to engage an advocate and in those circumstances he submitted his written arguments before the Court. He was, however, orally informed, as observed by the learned Magistrate in his report submitted to this Court on 15-4-69 that at the stage of preliminary hearing, there is no scope for presenting the written arguments when the opponents are not in Court. That led the applicant to give an application.

Therein he stated as under:

It is submitted that I have filed an application before the Hon'ble High Court of Gujarat for not accepting written argument submitted by me before Your Honour.

The matter is fixed for hearing before the Hon'ble High Court as per number 92/69. Hence the hearing of the transfer application may be adjourned : in the interest of justice, and I may be relieved earlier today as I have to attend the Hon'ble High Court.

This application came to be rejected by the learned Magistrate. In his view there was no scope for written arguments to be filed when the other parties were not before the Court, and had no opportunity of making any remarks of any criticism in respect thereof. He also observed that since no writ from the High Court was received in respect of his application said to have been filed before the High Court, the matter may not be pending before the High Court and that there would be delay in disposing of the oases which were of 1968 if any further time was allowed. On the same day he dismissed his application summarily. Feeling dissatisfied with that order passed on 8.4.1969 by Mr. D. C. Mehta, Chief City Magistrate, Ahmedabad, the petitioner has filed Miscellaneous Criminal Application No. 180 of 1969 before this Court.

2. It may, however, be stated that as he was not allowed to submit his written arguments, he had filed Miscellaneous Criminal Application No. 92 of 1969 in this Court on 1.4.69 invoking the jurisdiction of this Court under Section 561A of the Criminal Procedure Code. His main ground was that he was a party in. forested in criminal proceedings and was entitled to be heard by the learned Chief City Magistrate. He also claimed the right to submit his arguments in writing as he was not in a position to engage any advocate who could address the Court on his behalf. This application has come up for admission on 10-4-69 before Sarela J. and a rule was directed to be issued in the case. A report of the Chief City Magistrate was also called for. The report has been also received on 15-4-69 and thereafter the matter has been set down for hearing.

3. Both these petitions are heard together and a common order is passed.

4. As already stated at the outset, the petitioner is the complainant, in two cases and accused in three other cases as an accused he has every right to move the Court of the Chief City Magistrate for a withdrawal or transfer of the case from the file to any other City Magistrate. In respect of the two other oases where he happened to be the complainant, he was said to be a person having no locus standi before the Court in as much as the Police Prosecutor representing the State will be in charge of the conduct of those cases. The police had investigated those cases on a com-plaint made by him and the charge-sheets against the accused were sent by the Police to the Court of the City Magistrata, 4th Court. Ahmedabad. It is indeed true that the conduct of the case may well remain with the Police Prosecutor unless permitted to be taken over by any party such as the complainant, by the Court. But in a matter where a case is sought to be transferred or withdrawn from the file of any such Magistrate under Section 528 (2) of the Criminal Procedure on the ground that he would not get any fair and impartial trial, the question is whether he is entitled to file any such application. The proceedings for the transfer of a, case of any transfer of cases would obviously be governed by the provisions contained in Section 626 of the Criminal Procedure Code and as provided therein, before moving the High Court for transfer of any such case or class of cases, any such party has to move the Sessions Judge or the Presidency Magistrate, as the case may be. Sub-section (3) of Section 526 provides that the High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. Section 526 (1) provides as under:

526. (1) Whenever it is made to appear to the High Court:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order -

* * * *'

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

* * * *

As provided in Sub-section (3), the High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. Thus, in a transfer of a case or a class of oases as contemplated in Sub-section (1) Clause (e)(ii), the High Court may act on an application of a party interested. The expression 'party interested' has not been defined in the Criminal Procedure Code and it can be easily said to include an aggrieved person who lodges a police report and there by sets the machinery of law in motion. It is not only a party in any such case that is entitled to make any such application. But what Sub-section (3) says is that even an application can be made by a party interested in any such case. That enlarges the scope of including any person such as the complainant who initiates the prosecution in the case. It is not therefore, that only the State can move for a transfer of a case, as was understood by the Court below. This view finds support from a decision in the case of Jag Bhushan Jain v. State AIR 1962 All 238, wherein the construction to be placed on the expression 'party interested' appearing in Sub-section (8) of Section 526 of the Criminal Procedure Code came to he considered. The contention in that case on the one hand was that its scope is confined to the State in a case started by the police and the complainant in a case instituted on a private complaint or as to whether it was wide enough to include an aggrieved person who lays information about a crime with the police and thereby sets the machinary of law in motion. It was then held that the expression 'party interested' is wide enough to include an aggrieved person who lodges a police report and thereby sets the machinery of law in motion'. It is, therefore, clear that both by reason of his being a complainant in respect of two coses and by reason of his being an accused in three other cases, he was entitled to file an application for transfer of those cases from the Court of the City Magistrate, 4th Court, Ahmedabad, on the grounds alleged by him in the application.

5. Another difficulty that has been posed by the learned Chief City Magistrate is that he was required to make five different applications in respect of each of the cages and that one application claiming a transfer of all the oases filed by him and against him cannot be considered by him. There again one can usefully refer to Section 526 (1) Clause (e)(ii) which says that any particular case or appeal or class of cases or appeals be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. In other words, it entitles the Court having powers to transfer not only a case but also a class of oases for the simple reason that the allegations remain the same they being against the Magistrate- which have given rise to some apprehension in the mind of any such person that he will not get a fair and impartial inquiry or trial in that Court. The mere fact that these cases are different need not necessarily require the same person to file separate applications containing the same reasons. One cannot be too technical over a point like this and if it was thought that separate, applications were absolutely essential or necessary, he could have asked him to do so. But in my view however, one can do justice without having to require any such party to file applications in respect of all cases separately. That would be besides, a point, however, which can be considered when any such application is heard on merits i.e. after hearing the other side.

6. That takes me to the material ground raised by the petitioner before this Court. According to him, since he was not allowed to submit his written arguments, he cannot be said to have been heard fully by the learned Chief City Magistrate in the matter. Now in this connection, we have in the first instance to remember that the petitioner appeared in person at the time when the hearing was to take place. Much though he thought that he would be able to engage an advocate and have him before the Court at the stage of hearing, he could not do so. According to him, none of the lawyers practising on the criminal side was prepared to appear and urge the applications which were made against the Magistrate and those who could agree to appear, could not 'be engaged by him as the fees demanded for the same were exorbitant. In other words, he committed no fault if he could not engage an advocate as he thought he would be able to, on the previous date as stated by him before the Court. It should make no difference whether a party appears in person or through an advocate. What is essential for the Court is to hear the party or bis advocate fully and then decide the matter. One can easily understand the Court requiring the advocate to address the Court and in case he were out to submit his written arguments, he may well keep them aside and ask him to address the Court. But when a party appears in person, it would be too much to insist his addressing the Court orally on the points involved in the case for various reasons. He may not be quite relevant or may not be able express his point well and fully. He may have received some assistance out. side and have his arguments prepared. If such written arguments were placed before the Court by any such party who is not re-presented by an advocate, there is no rule of law which justifies much less forbids any Magistrate or Court from not accepting his written arguments. It may well be that they may not form a part of the record since they may not be exhibited in the case. They, however, must be looked into with a desire to understand and appreciate the points involved in the matter as tried to he placed before him in the written arguments. If a party, not represented by an advocate, were to set out his points and arguments in sup. port thereof in his application, they would have to be accepted by the Court. The Court can even ask such a party to read them or even to read his written arguments if submitted later on, but there is no justification for not taking note of written arguments and then compel the party to address the Court orally in respect of his case. The learned Magistrate, however, thought that there was no scope for written arguments when the matte was kept for preliminary hearing, and particularly all the more so, when the other parties were not before the Court and had no opportunity of making any remarks or criticism in respect of such written arguments. If the other party was to be heard, a copy of such written arguments can well be obtained and given over to the other side to meet the same. Not to do so would not be proper. There teas no other party at that stage who was required to be heard and consequently when the application was set down for preliminary hearing, the written arguments submitted by the applicant should have been accepted or at any rate he should have been asked to read the same so as to give him a satisfactory hearing in the circumstances of the case. It is not a case where he was hearing the party behind the back of other party for the reason that the application was not admitted and no notices were issued to the other parties.

7. In his report the learned Magistrate has tried to say that be hag followed the practice and procedure stated in Note 7 under Section 840 of the Criminal P. C., 6th Edition, Vol. II, by Chitaley and Rao, on page 2251. He has then referred to some portion of the Note which says that 'when a party or his advocate is entitled to be heard, he is entitled generally to be heard by oral address and not by written speech or argument'. This observation quoted from the book referred to above is contained in a decision in the case of Amjad Ali v. Suresh Banjan Pal A.I.R. 1921 Cal. 426. This decision then says that:

when a case has been fully argued, it ought not to be necessary for the pleaders to submit notes of their arguments. It is the duty of the Judge to take such notes of the arguments as he thinks fit when they are submitted to the Court, and, if he feels that he has not fully appreciated any part of the arguments which have been submitted to him, it is open to him to call the parties before him so that any further argument may be presented in open Court in the presence of the other side. Then it says that if it becomes necessary, as in some exceptional case it may become necessary, for the Judge either to require or to receive notes of the pleader's arguments, such notes ought not to be submitted to the Judge by the pleader on one side without first submitting the notes to the pleader on the other aide. But the sub-mission of 'notes' in the form of a draft judgment must not be done in any case.

This case is on the basis that the party was represented by a counsel and that he had also advanced arguments before the Court in the presence of the other side. It was, therefore, obvious that he cannot submit any such notes of arguments without first submitting the same to the pleader on the other side and then obtain the permission of the Court. In the present case, the party was not represented by any advocate and no arguments were advanced on his behalf. As I said above, the party was entitled to be heard, and the decision nowhere says that the patty was debarred from submitting the notes of arguments at a preliminary stage of hearing of his application. There was, therefore, no such case of taking his written arguments behind the back of the other side. That question can only arise after the opponents were served in that matter. Then he has referred to the remarks in that Note 7 saying that 'the practice of allowing counsel to file memorandum of arguments has been held to be improper, especially so when they are taken behind the back of one of the parties'. That appears to be perfectly a sound principle. But the learned Magistrate was in the wrong when he tried to apply the same to the present case which was merely set down for preliminary hearing. The learned Chief City Magistrate, therefore, was wrong in rejecting his application and disposing of the main application without having assistance from written arguments sought to be submitted by the petitioner.

8. It may be stated that this petitioner had filed an application in the High Court on 1.4.1969 wherein he claimed that he was a party interested in proceedings before the Court and that way entitled to submit his arguments orally or in writing and to secure the ends of justice. It was for that reason that he claimed the records and papers of the case to be called for by this Court and to have hie grievance redressed in the respect. It was, therefore, not an imaginary ground which he had taken up and it was only on his being not allowed to submit his written arguments that he was required to approach this Court. Perhaps one would be inclined to think that on being satisfied that any such application was filed in the High Court and the matter was sought to be adjourned on any such ground, there would have been nothing wrong if some time was given to obtain the stay of the proceedings and in case the learned Magistrate feels doubt about his having filed any such application, he could have obtained an affidavit in that regard. The fact, however remains that the Court should be fairly considerate towards a party particularly when he is not represented by any advocate in the case, and as observed generally on the basis of some propositions laid down in the case of Sirjeant v. Dale (1877) 2 QBD 558 at p. 567 and in the case of Bex v. Sussex Justices (1924) 1 KB 256 at p. 259, and adopted in the case of Annubeg v. King-Emperor ILR 1945 Nag 553 : AIR 1944 Nag 320, that:

it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done and nothing should be done which creates even a suspicion that there has been an improper interference with the course of justice. It is necessary to clear away everything which may engender suspicion and distrust of the tribunal and so promote a feeling of confidence in the administration of justice so essential to social order and security.

It appears, therefore, clear that the learned Chief City Magistrate was wrong in not allowing the applicant to submit his written arguments at the stage of the preliminary hearing of the case and proceed further and dispose of the same. The learned advocates for the opponents have nothing to urge in the matter.

9. In that view of the matter, the subsequent order passed in the main application whereby it came to be dismissed summarily is, therefore, liable to be get aside. The case shall, therefore, be sent back to the leaned Chief City Magistrate with a direction that he shall allow or permit the written arguments to be placed before him for consideration in absence of his having been represented by any advocate in the case. After considering the same, he may proceed to dispose of the application in accordance with law. The order passed by him in the Application No. 8 of 1969 whereby the application came to be dismissed is set aside.

10. In the result, the order passed by the learned Chief City Magistrate on the petitioner's application M/4 in Transfer Application No. 8 of 1969 is set aside. In consequence thereof, the order of dismissal passed in the Transfer Application No. 8 of 1969 on the same day is set aside.

11. The case shall be sent back to the learned Chief City Magistrate, Abmedabad, with a direction that he shall allow or permit the written arguments to be placed before him for consideration in absence of his having been represented by any advocate in the case. He shall then proceed to dispose of the application in accordance with law.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //