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PETITIONER: SMT.  KAUSHALYA DEVI

       Vs.

RESPONDENT: SHRI MOOL, RAJ AND OTHERS

DATE OF JUDGMENT: 04/09/1963

BENCH:

ACT: Practice-Application by accused for transfer-Affidavit by trying Magistrate opposing application-Propriety.

HEADNOTE: Criminal proceedings were started against the petitioner and three  others on an complaint made by the  first  respondent alleging  that  the  four  accused  persons  had   committed offences under s. 420 read with s. 120B of the Indian  Penal (,ode.   Originally  the Magistrate had dispensed  with  the personal  appearance  of  the petitioner in  court,  but  on application made by the complainant, the Magistrate made  an order  directing  the petitioner to be present in  court  in order to give an opportunity to the complainant’s witness to identify  her.  Apprehending that this order would  lead  to her prejudice, she made an application in the Supreme  Court for  transfer  of  the  case to some  other  court,  on  the grounds,   inter  alia,  that  the  facts  alleged  by   the complainant might perhaps constitute a civil dispute but the said  facts  had been deliberately twisted  and  a  criminal complaint had been made to harass the petitioner.  After the petition  was  admitted  and interim  stay  -ranted  to  the petitioner  pending  the hearing and final disposal  of  the main petition, an affidavit was filed on behalf of the Delhi Administration,  by  the Magistrate  himself,  opposing  the application  and  stating,  Inter  alia,  that  the   clause indemnifying  the  purchaser contained in the sale  deed  on which  the petitioner relied on would not absolve the  peti- tioner from criminal liability.  Thus it was clear that  the deponent  Magistrate  had adopted the argument  which  might probably be. -urged by the complainant at the trial. 885 HELD : (i) The action of the Magistrate in making an-affida- vit  and  opposing the application for transfer  was  wholly improper. In   criminal  trials,  particularly,  it  was   of   utmost importance  that  the  Magistrate who tried  the  case  must remain   fearless,  impartial  and  objective;  and   if   a Magistrate  chose  to  male  an  affidavit  challenging  the application made by in accused person whose case was pending in  his  court,  made the said affidavit on  behalf  of  the Administration,  and  in  the affidavit put  a  strong  plea opposing  the transfer, all essential attributes of  a  fair and  impartial  criminal  trial  were  immediately  put   in jeopardy. (ii)Even without considering the merits of the contentions raised bythe  petition or, it was expedient in the ends  of ’Justice that the caseshould be transfered to some  other court of competent jurisdiction.

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JUDGMENT: ORIGINAL JURISDICTION : Transfer Petition No. 15 of 1963. Petition  for  transfer of a criminal case  pending  in  the Court of Sub Divisional Magistrate Delhi to any other  Court in a neighbouring State. B.   C. Misra, for the petitioner. R.   N. Sachthey, for respondent No. 5. September 4, 1963.  The Judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-The  petitioner Mrs. Kaushalya  Devi  is being  tried along with three other persons in the Court  of the   Sub-Divisional  Magistrate,  Delhi.   These   criminal proceedings commenced on a complaint made by Mool Raj  Hukam Chand  against  the  petitioner  and  three  other   persons alleging  that  the  four  accused  persons  had   committed offences  under section 420 read with s. 120B of the  Indian Penal Code.  The complainant’s case is that the  transaction between   him  and  the  petitioner  in  relation   to   the registration  of Plot No. 210 in Meenakashi Garden  was  the result of cheating.  This transaction took place,  according to  him, in June, 1959, and the complainant had paid to  the petitioner  Rs. 1150 at the time of the registration of  the document.  According to him, the plot shown to him and given in  his possession in pursuance of the said transaction  did not belong to the petitioner and that, in substance, is  the basis of the charge under s. 420 read with s. 120B 1. P.  C. The complaint alleges that after 886 independence, a profession of colonisers who cheat the illi- terate  and poor people by clever means and relieve them  of their  hard-earned  income,  has grown  in  Delhi,  and  the complainant’s grievance against the petitioner and the three other  persons mentioned by him in his complaint appears  to be  that they belong to this class of dishonest  Colonisers. The complaint was filed in the Court of Mr. R.    N.  Singh, Magistrate 1st Class, Delhi. After the petitioner appeared before the learned Magistrate, an application was made on her behalf under s.253(2) of  the Criminal Procedure Code for her discharge, but no order  was made on the said application.  The petitioner alleges in her present petition that after she moved the learned Magistrate under  s. 253(2) of the Code, the complainant realised  that his complaint suffered from several infirmities, and so,  he began to make additions and improvements in the case set out by  him against the petitioner.  With that object  he  urged before  the learned Magistrate that though  the  transaction between  him  and the petitioner was  substantially  carried through  by the agents of the petitioner who are  the  three other  accused  persons  in the  case,  the  petitioner  was present  at the spot at the relevant time and  he  suggested that  his  witnesses would identify the  petitioner  as  the person  who  was  present at the spot on  the  relevant  and material occasion during the course of the negotiations  and before the transaction was finalised. On  this representation, the complainant obtained  an  order from the learned Magistrate, Mr. Grover who was then  trying the case, that the petitioner should be produced in court on the  29th May, 1962.  Till then, the learned Magistrate  had dispensed with the personal appearance of the petitioner  in court, but by the order passed by him on the 29th May, 1962, she was directed to be present in court in order to give  an opportunity to the complainant’s witnesses to identify  her.

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The  petitioner’s  case is that she was not present  on  the scene  and so, none of the complainant’s witnesses had  seen her  at  all;  the complainant’s  motive  in  requiring  the petitioner  to  be  present  in  court  was  obvious-if  the petitioner attended the court, she would be asked to sit  in the  place meant for accused persons and, even otherwise  in all  probability, she would be the only lady present  court. That is how the complainant’s 887 witness could wily pretend to identify her as die person who was  present  on the scene.  Apprehending  that  this  order would lead to her prejudice, the petitioner moved this Court for  transfer of the proceedings pending against her  before Mr.  Grover (Transfer Petition No. 8/1962).  At the  hearing of  the said petition, this Court adjourned the  matter  for three  weeks  to enable the petitioner in  the  meantime  to apply  to the Sessions Judge for transfer of the case  to  a Magistrate  drawn from a State other than  Punjab.   Interim stay  which had been granted by this Court  after  admitting the  transfer  petition  was ordered to  continue  till  the disposal of the said petition. Subsequently,  the  petitioner moved  the  learned  Sessions judge,  Delhi,  and  the case  against  the  petitioner  was transferred  to  the  Court of Mr. S.  N.  Chaturvedi,  Sub- Divisional  Magistrate, Delhi, and so, the proceedings  were resumed  in  his  Court.  During the course  of  these  pro- ceedings, the learned Magistrate, however, saw no reason  to modify  the  order  already passed  against  the  petitioner directing  her to be present in court when the  complainants witnesses  would give evidence, and the arguments  urged  by the  petitioner  against the propriety and validity  of  the said order were rejected by the learned Magistrate.  That is why  the petitioner has filed the present  petition  praying that the criminal Case No. 44/2 which is at present  pending against  her and three other persons in the Court of Mr.  S. N.  Chaturvedi, S. D. M., Delhi, should be transferred  from the said Court to any other Court of competent  Jurisdiction in any neighbouring State. In  the course of her petition, the petitioner  has  alleged that  Dalip  Singh who is one of the persons  accused  along with  her, had been appointed by her as her agent,  but  the petitioner has now learnt that Dalip Singh is a great friend of Sardar Partap Singh Kairon, Chief Minister of Punjab, and that  his  antecendants are far from satisfactory.   It  has been  averred in the present petition that Dalip  Singh  has recently  undergone six months’ rigorous imprisonment  on  a charge  of cheating and was later involved in other  serious offences.   Her  apprehension  is  that  by  virtue  of  his friendship  with the Chief Minister of Punjab,  Dalip  Singh wields  considerable  influence  and  may  take  steps   to, prejudice the petitioner’s case, though he 888 happens  to  be one of the accused persons.   In  fact,  the petitioner  avers that "it is not without significance  that Dalip  Singh  had been holding out the threat  that  if  the petitioner’s  case is transferred to any Delhi  Magistrate’s Court, lie would get her convicted." In fact, the main point which the petitioner has made in the present petition is that the present complaint is  frivolous and  has  been filed against her because she happens  to  be mother-in-law of Mr. R. P. Kapur who has incurred the  wrath of the Chief Minister of Punjab.  The petitioner herself  is 61  years old and has been involved in several  cases  along with her son-in-law Mr. Kapur.  Her grievance appears to  be that  putting the case of the complainant at its  best,  the

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facts alleged by him in his complaint may perhaps constitute a  civil dispute, but the said facts have been  deliberately twisted and a criminal complaint has been made to harass the petitioner. After this petition was admitted and interim stay granted to the petitioner pending the hearing and final disposal of the main petition, an affidavit has been filed on behalf of  the Delhi  Administration by Mr. Chaturvedi, the  Sub-Divisional Magistrate,   himself  and  that  has  created   a   serious complication.   In the ordinary course, an affidavit  should have  been  filed  by some officer  representing  the  Delhi Administration.  An affidavit could also have been filed  by the  complainant; but it is not easy to understand  how  the Delhi   Administration  requested  the  learned   Magistrate himself   to  make  the  affidavit,  and  how  the   learned Magistrate accepted the said request.  In the petition,  the petitioner  has  not made any specific  personal  allegation against  the learned Magistrate in whose court  the  present petition   is  pending.   The  main  ground  on  which   the petitioner  is seeking transfer from his court is that  like Mr.  Grover, the present Magistrate also is  insisting  upon the  petitioner remaining present in court, and  that,  says the petitioner, is an unreasonable and irrational order.  In other words, just as the petitioner moved the Sessions Court successfully for transfer of her case from the court of  Mr. Grover  on the ground that the said Magistrate had  directed the petitioner to remain present in court for the purpose of giving  an  opportunity to the  complainant’s  witnesses  to identify her, so she made the 889 same request by her present petition, because the same order was being enforced by the Sub-Divisional Magistrate in whose court  her  case  now stands transferred; and  if  the  Sub- Divisional Magistrate himself had not made an affidavit,  we would  have  had  to consider whether it  was  necessary  to transfer the case on the ground made by the petitioner;  but in  view  of  the fact that  the  Sub-Divisional  Magistrate himself  has,  in  a sense, entered the  arena  and  made  a counter-affidavit  opposing  the transfer  application,  the complexion  of the problem is completely changed.   That  is why  we have just indicated after the present  petition  was admitted, a serious complication has arisen by virtue of the fact  that the Sub-Divisional Magistrate himself has made  a counter-affidavit. The affidavit of the Sub-Divisional Magistrate is  described as an affidavit made on behalf of the Delhi  Administration. In  his  affidavit,  the  Magistrate  has  covered  all  the allegations  made by the petitioner paragraph  by  paragraph and  naturally  in  several  places he  has  said  that  the allegations  relate to facts which are not within  Ms  know- ledge,  and so, he cannot make any averment in that  behalf. Even  so,  in  paragraph 6 of the  affidavit,  the  deponent Magistrate  has  alleged that the  clause  indemnifying  the purchaser   contained  in  the  sale-deeds  on   which   the petitioner.   Relies, would not absolve he  petitioner  from criminal liability; and, thus, it 13 clear that the deponent Magistrate  has adopted the argument which may  probably  be urged  by the complainant at the trial.  The  affidavit  has further  averred that the executive has no influence so  far as the deponent’s court is concerned, and it has  emphasised that "there is no Justifiable cause for any apprehension  on the part of the petitioner which would justify the  transfer of  her  case from this Court".  In the end,  the  affidavit says   that  the  petition  made  for  transfer  should   be dismissed.

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This   Court  has  had  occasion  to  deal   with   transfer applications in several cases, but we have never come across a  case where the allegations made in the transfer  applica- tions  are  contested by an affidavit made  by  the  learned Magistrate  who tries the case himself.  It is true that  if in a petition for transfer allegations are made against  the Magistrate in regard to what he said or did during the 57-2 S. C. India/64 890 course   of  the  trial,  and  it  appears  that  the   said allegations  require to be examined, this Court calls for  a report  from  the  Magistrate ; and when a  report  is  thus called  for,  the Magistrate no doubt gives his  version  in respect  of the allegations made by the  petitioner  against him.  But it is impossible to understand how the  Magistrate in  whose court the proceedings in question are pending  can rush  into  the arena and make an  affidavit  disputing  the prayer  made by the petitioner for transfer of the case.   A transfer  application can be opposed by the  complainant  if the proceedings have commenced at the instance of a  private complainant;  it  may  be  opposed by  the  State;  but  the Magistrate in whose court the proceedings are pending should never  forget that he is a judge and not a partisan for  the Administration  or  the  prosecution;  that  is  why  it  is inconceivable  that  he should make an  affidavit  like  the present traversing the grounds set out by the accused person when  an application for transfer is made by  him/her,  but, unfortunately,  that is precisely what has happened  in  the present case.  The statement made by the learned  Magistrate in  paragraph 6 of his affidavit, to which we  have  already referred,  clearly shows that the Magistrate has  assumed  a partisan  role and has purported to contest the  plea  which the petitioner wanted to raise in defence in respect of  the charge levelled against her by the complainant. Unfortunately,  in some parts of the country, the policy  of separating  the Judiciary from the executive has  still  not been implemented.  Nevertheless, we are confident that  even in areas Where such separation has not taken place,  members of  the  judiciary are functioning without fear  or  favour. But when an instance like the present comes to the notice of this  Court,  it naturally causes us  considerable  concern. The learned Magistrate who has been ill-advised to make  the present affidavit, did not realise that when he entered  the arena and made an affidavit on behalf of the Administration, his  statement  that the executive has no influence  in  his court,  is  apt  to sound idle and  meaningless.   A  little reflection would have satisfied him of the gross impropriety of  his action in making an affidavit like the present.   It is  an elementary principle of the rule of law  that  judges who preside 891 over  trials, civil or criminal, never enter the arena.   In criminal  trials, particularly, it is of  utmost  importance that the Magistrate who tries the case must remain fearless, impartial and objective; and so, no argument is required  in support  of the proposition that if a Magistrate chooses  to make  an  affidavit challenging the application made  by  an accused person whose case is pending in his court, makes the said  affidavit on behalf of the Administration, and in  the affidavit  puts in a strong plea opposing the transfer,  all essential attributes of a fair and impartial criminal  trial are  immediately  put in jeopardy.  It is very  much  to  be regretted that the Delhi Administration chose to request the Magistrate  to  make an affidavit and  that  the  Magistrate accepted  the  said request and made the  affidavit  on  the

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lines  we  have  already indicated.   That  being  so,  even without considering the merits of the contentions raised  by the  petitioner,  we think it is expedient for the  ends  of justice  that  the case pending against the  petitioner  and three other persons should be transferred from the court  of the learned Sub-Divisional Magistrate, Delhi, to a court  of competent  jurisdiction in Saharanpur, U. P. We  accordingly direct  that the papers in this case should be sent  to  the District  Magistrate,  Saharanpur,  who  should  nominate  a Magistrate of competent jurisdiction in his district to  try this case. It is true that three other persons also stand charged along with  the petitioner in the present case, but having  regard to the unusal facts which have justified the transfer, we do not  think it necessary to consider whether the  said  three accused persons are agreeable to have their case transferred to  a  court of competent Jurisdiction in  Saharanpur.   The complaint  discloses  that  the  said  accused  persons  are alleged to be concerned with the offences only as agents and representatives  of the petitioner, and so, the main  charge is  against  the petitioner herself.  Besides, on  the  last occasion when the learned Sessions judge, Delhi, transferred the  case from the court of Mr. Grover to the court  of  the Sub-Divisional  Magistrate, the transfer was ordered  mainly at the instance of the petitioner alone. In  this connection, we ought to make it clear that we  have riot heard the complainant Mool Raj, nor Dalip Singh against whom the petitioner has made several alle- 892 gations, and so, in ordering the transfer of the case  pend- ing against the petitioner, we are expressing no opinion  on the allegations made by the petitioner against the said  two parties or against the Chief Minister of Punjab. Transfer ordered.