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Smt. Sharab Chhonzam Vs. Smt. Suraj Mani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1017
AppellantSmt. Sharab Chhonzam
RespondentSmt. Suraj Mani
Cases ReferredRanbir Singh v. State.
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide..........perused the report that was received from the learned magistrate. no doubt he has expressed in strong language, inasmuch as the allegations regarding his stay at the house of the complainant and his having received presents from her have been considered 'white lie' and 'totally false and malicious.' it is quite obvious that these were personal charges levelled against the magistrate and if he took exception to such charges and expressed his disapproval in strong language, that by itself would not go to indicate that he is prejudiced against the accused. stray observations made by a court of justice cannot form the basis of any successful transfer application. strong observations are often made to substantiate argument and to establish bona fides in a case of this nature where.....
Judgment:
ORDER

D.B. Lal, C.J.

1. This is an application for transfer of a criminal complaint case,under Section 526 Cr.PC from the Court of Magistrate First Class, Booh, District Kinnaur, to some other competent Magistrate, for trial. As revealed from the application, the grounds of transfer are, that the learned Magistrate has not given opportunity to the accused petitioner Shrimati Sharab Chhonzam for engaging a counsel to defend her; that no lawyer is practising at Pooh and she has to bring a lawyer from Kalpa or Rampur; that while on tour, the learned Magistrate stays with the complainant at village Rib-b'a and receives presents from her; that all the witnesses belong to Ribba which is near Kalpa as compared to Pooh and that the case for these reasons need be transferred from Pooh to Kalpa. The petition was formerly moved before the learned Sessions Judge, Mahasu who sent for the comments of the Magistrate concerned. The comments which arrived indicated that Smt. Sharab Chhonzam was adopting delaying tactics and that sufficient opportunity was given to her to engage a counsel. According to the learned Magistrate, the transfer is being sought on flase and flimsy grounds. The learned Magistrate rather expressed in strong terms that the allegations of his stay at the complainant's house and of receiving presents from her are 'white lie' and are 'totally false and malicious.' However the learned Magistrate indicated that he 'would have no objection if the case is transferred from his court.

2. The learned Sessions Judge after receiving such a report from the learned Magistrate dismissed the transfer application. The accused-petitioner has now come up in this Court with a similar petition and for a similar request.

3. I have heard the learned Counsel and I have also perused the report that was received from the learned Magistrate. No doubt he has expressed in strong language, inasmuch as the allegations regarding his stay at the house of the complainant and his having received presents from her have been considered 'white lie' and 'totally false and malicious.' It is quite obvious that these were personal charges levelled against the Magistrate and if he took exception to such charges and expressed his disapproval in strong language, that by itself would not go to indicate that he is prejudiced against the accused. Stray observations made by a court of justice cannot form the basis of any successful transfer application. Strong observations are often made to substantiate argument and to establish bona fides In a case of this nature where oersonal allegations are made, a little more emphasis in the language was likely to be given to deny the allegations. Therefore, to say that the learned Magistrate has ' entered into an arena of controversy would not be correct. The allegation of personal visit to the house of the complainant, and of having received presents from her. if not correct, did require a strong language for denial. The learned Magistrate has done this to safeguard his position. From this it cannot be inferred that he has developed a bias against the accused-petitioner, or that he would permit the balance of justice to tilt against the accused because of any such extraneous reasons. (See 1968 Delhi LT 226, Vishwanath v. Nemo)

4. It is further to be noted that if transfer applications are allowed simply on the ground that the Court has expressed its views in strong language, that would give premium to a party, to make false charges against the court leading to a denial of the same in strong language, with the result that the transfer of the case is facilitated. I would not, therefore, pay any attention to the language utilised by the learned Magistrate for denying that he had ever visited the house of the complainant or had received presents from her.

5. It is conceded that all the prosecution witnesses have already been examined. Therefore, it would hardly be a, reason for transfer of the case from Pooh to Kalpa. If a Court of Magistrate has been established at Pooh, it would not be proper to ask fop transfer, simply on the ground that no lawyer is 'practising at Pooh. or. that witnesses have to travel some distance for reaching the headquarters at Pooh. After all, what for the Court of Magistrate is established there if no trial can be permitted to be held at that place.

6. The learned Counsel for the petitioner relied upon Ranbir Singh v. State. but the facts of that case were totally different because some irregularity was committed in recording evidence. In that context, when the default committed was serious, the learned Judge observed that the comments received from the trial Magistrate went beyond making a factual denial of the allegations. He had entered into an arena of controversy and was likely to give the impression of being prejudiced against the accused. In the present case, such a situation cannot be inferred. Therefore, the facts of that case are not helpful to the accused.

7. It is submitted that the learned Magistrate has not granted opportunity to the accused to engage a counsel. The learned Magistrate himself has denied this fact. According to him sufficient, opportunity was given to the accused for engaging a counsel and that the accused herself was trying to prolong the proceedings. The fact may be correct, but nonetheless t'he learned Magistrate may be asked to ive vet one more opportunity to the accused to engage a counsel. This he would do when this case goes back to him for trial.

In the circumstances, I do not find any ground to order for transfer of this case from Pooh to any other place. The transfer application is, therefore, rejected.


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