Jammu & Kashmir High Court
Mohd Hafiz vs State & Ors on 14 December, 2010
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. CRTA No. 27 OF 2010 Mohd Hafiz Petitioners State of J&K and ors. Respondent !Mr. H. A. Siddiqui, Advocate ^Mr. A. H. Qazi, AAG Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Date: 14.12.2010 :J U D G M E N T :
Heard Mr. H. A. Siddiqui, learned counsel for the petitioner as well as Mr. A. H. Qazi, learned Additional Advocate General, appearing on behalf of the official respondents Nos. 1 to 6. So far as private respondents Nos. 7 and 8 are concerned, they were sent registered notices by the Registry on 26.08.2010, but same have not come back served or even unserved nor has anyone come forward for representing them in this case in the court. Statutory period of presumptive service is also there leaving this court with no option but to presume that they have no objection for disposal of this petition under rules.
This application has been filed under the nomenclature of criminal transfer application by the petitioner seeking transfer of 561-A 170/2009 (Srinagar Wing) from Srinagar Wing to Jammu Wing of the High Court of Jammu and Kashmir.
In this application, the following prayer is made:
It is, therefore, most humbly prayed that your Lordships may be pleased to transfer the petition under section 561-A-170/2009 titled Rozia Akhter & Vs. State & ors from Srinagar Wing to Jammu Wing for disposal under law. For this act of kindness the petitioner shall ever pray. In support of this application, it is contended by Mr. Siddiqui, learned counsel for the petitioner that the petition under section 561-A No.170/09, herein sought to be transferred from Srinagar Wing to Jammu Wing, had basically been filed by the petitioner along with his wife before the Srinagar Wing of this Court for quashing FIR no. 128/2009 registered under Sections 366 & 109 RPC with Police Station, Mendhar (Poonch), as, at the relevant time, the petitioner because of his posting was allegedly residing in Srinagar with his wife (co-petitioner). Brief facts of the case are that the petitioner herein had solemnized his marriage with Rozia Akhter, co-petitioner of 561-A CrPC petition, allegedly against the wishes of parents of Rozia Akhter. But after some time, parents of the Rozia Akhter filed a FIR with the police of Police Station Mendhar Poonch whereafter during the investigation, Rozia Akhter was recovered from the possession of petitioner and handed over back to her parents and Rozia Akhter too made her statement against the petitioner thereby leading to his arrest under sec. 376 RPC. It is further averred that said Rozia Akhter after being taken away from petitioner by the parents, was got married with another boy. Whereas the petitioner is still in the jail in the above said case. Now the petition 561-A Cr.P.C. is being pursued only by the petitioner herein, as the co-petitioner Rozia Akhter has since left the petitioner and settled with her new husband.
In this background, the petitioner prays that since he is in Poonch Jail (in Jammu Division ) and parties to the case too belong to Jammu Division, his petition under Section 561-A Cr.P.C may, in the interest of justice and also keeping in view the inconvenience of the petitioner, be ordered to be transferred from Srinagar wing to Jammu wing of this Court for disposal.
Mr. Qazi, learned AAG, appearing for the respondents has submitted that since the respondent nos. 1 to 6 are official respondents and their respective offices are also situated at Jammu as well as private respondent nos. 7 and 8 also hailed from Jammu region, they have no objection if the petition under Section 561-A Cr.P. C is transferred from Srinagar Wing to Jammu Wing of the High Court.
It is seen that insofar as private respondents nos. 7 and 8 are concerned, as already mentioned above, they were sent registered notices by the Registry on 26.08.2010, but same have not come back served or even unserved nor has anyone come forward for representing them in this case in the court. In view of that, since the statutory period of presumption of service is over, service upon those respondents are deemed to be complete.
On pointed queries as regards the power of this Court for transfer of the case, as sought for, both the learned counsel at the bar have relied on the provision of Rule 23 of the Jammu and Kashmir High Court Rules, 1999 (for short the Rules). Rule 23 provides as under:-
23. Constitution of Benches Judges shall sit alone or in such Benches as may be constituted from time to time by the Chief Justice and do such work as may be allotted to them by the Chief Justice or under his directions.
Whenever a Judge is shifted from one wing to another wing of the Court, the cases assigned to him including part heard matters shall stand released and may be listed before any other available Judge(s) / Bench(es).
7. A close perusal of the above Rule would go to show that it does not literally indicate the power of the Chief Justice as to transfer a case from one Wing to the other Wing, i.e., from Jammu Wing to Srinagar Wing and vice-versa.
However, on further query, the learned counsel have submitted that this question has been put at rest by a decision of this Court passed by the Division Bench in a case titled H. S. Ramal v. Union of India, reported in 1994 SLJ 315 and AIR 1999 SC 1591.
To bolster up their submission, as regards the power of the Chief Justice to transfer a case from one Wing to another Wing of the High Court, they have drawn attention of this Court to paragraphs 12, 44, 45, 46, 48, 49 and 50 of the aforesaid judgment. The said paragraphs read as follows:-
12. In the case on hand the learned Single Judge has been correct to hold that Section 8 of the J&K High Court Rules confers ample powers upon the Chief Justice to constitute Benches and provide work to be done by them either under his written orders by way of the cause list or even under his direction by the Registry.
Rule 8 of the J&K High Court Rules confers wide powers upon the Chief Justice even to transfer a case from one Wing to another Wing of the High Court, for it is the Chief Justice alone, who, in his wisdom, can see as to what work can be allotted to a particular Bench by him, for disposal of the case.
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44. From the above, it would be seen that the Court has to sit at two places, namely, at Jammu and Srinagar. The Chief Justice can even direct that the Court would hold its sittings at a place other than Srinagar or Jammu subject, of course, with the previous approval of the Governor. The Chief Justice has also to determine the period for which a Judge would Sit at Srinagar or Jammu.
45. Since the usual places of sittings of the High Court is at two places, namely, at Srinagar and Jammu, the Chief Justice has to assign and distribute work to the Judges at both the places. High Court holds its sittings simultaneously at two places, the Chief Justice alone can control the jurisdiction by assignment of cases to the Judges sitting either at Srinagar or at Jammu. There is no restriction on the powers of the Chief Justice in the matter of assignment of work to the Judges of the Court.
46. It is contended by the learned counsel for the applicant that there is no provision in the Constitution and the Rules of the Court for the transfer of cases from Srinagar to Jammu or vice-versa and therefore, the order passed by Chief Justice transferring cases from Srinagar Wing to Jammu Wing is bad in law. The argument is devoid of merit.
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48. Under Chapter III as also under Chapter V and the Rules of the Court especially under Rule 8, the Chief Justice has the power to allot work to the judges. The allotment of work includes work allotted to the Judges sitting at Srinagar and the Judges sitting at Jammu. Work available at Srinagar may be allotted to the Judges sitting at Jammu and vice-versa. It is true that the work (word) transfer has not been used either in the Constitution or the Rules of the Court, the fact remains that the Chief Justice has been empowered to allot work to Judges and to specify the cases which would be heard by them. Thus, as pointed out earlier, Allotment would also include shifting of cases from Srinagar and allotting it to Judges at Jammu.
49. Usually, transfer of a case envisages transfer from one Court to another. Since the High Court is one indivisible Court with two places of sitting, there cannot be a transfer of case in the strict sense of the word. Nevertheless, Chief Justice can suo-moto or on the application of a litigant decide as to which case would be heard by which Judge and at what place of sitting.
Since the Chief Justice has the Administrative powers apart from his powers on the judicial side and since he has to run a big constitution (institution) which is an ever growing institution, he had to be conferred with wide powers as had been done under Constitution as also under the Rules of Court. Wide emplitude (amplitude) has to be conceded to the Chief Justice or else, it would hamper the proper running of the institution which, in its turn, would adversely effect the course of justice and the interest of litigants for whose benefit the Courts have been created. Having gone through these paragraphs, it appears that there was a reference of Rule 8 of J&K High Court Rules, 1975 (for short the old Rules), which was repealed by Rule 2 of the Rules on its enactment in the year 1999. Rule 8 of the old Rules provided as under :-
8. Constitution of Benches- Judges shall sit alone or in such Benches as may be constituted from time to time by the Chief Justice and do such work as may be allotted to them by the Chief Justice or under his directions.
11. Be it mentioned that Rule 23 of the Rules is in pari materia with Rule 8 of the old Rules, save and except proviso added to Rule 23 of the Rules.
12. From a plain reading of paragraphs 44, 45, 46, 48 and 49, as quoted above, it transpires that it is true that the Chief Justice has wide powers either on the Administrative side or Judicial side to cause allotment of cases to the Judges in either wing with the power to order the shifting of cases from one Wing to the other Wing. However, it is seen on perusal of the above paragraphs that there cannot be a transfer of case in the strict sense of the word transfer. Because transfer of case basically means transfer of case from one Court to another Court. Since the High Court of Jammu and Kashmir, as was held in H. S. Ramals case (supra), is one indivisible Court with two places of sitting, there cannot be a transfer of case within the same High Court.
13. In paragraph 48 of H. S. Ramals case (supra), it was clearly held that allotment also includes shifting of cases from Srinagar and allotting them to the Judge at Jammu and vice-versa; meaning thereby, as it appears and also as reflected in paragraph 48 of H. S. Ramals case (supra), that work available at Srinagar may be allotted to the Judge sitting at Jammu and vice-versa and word transfer is not required to be used.
14. It would be pertinent to note herein that in a case of Rajni Sehgal v. State of Jammu and Kashmir and another, reported in AIR 1999 SC 1591, the question of permissibility of entertainment of a Letters Patent Appeal at Srinagar, which was related to Jammu and ought to have been entertained only at Jammu, was raised before the Supreme Court. In answering the said question to the effect that Letters Patent Appeal ought to have been entertained at Jammu Wing, where the case was originated and decided instead of Srinagar Wing, the Supreme Court relied on an Order No. CS/SGR/27/93 dated October 26, 1993 passed by the then Chief Justice of this Court, which reads as under:-
Letters Patent Appeals directed against judgment/Orders delivered/passed at Srinagar Bench shall be filed, heard and decided at the Srinagar Bench. Similarly, such appeals directed against Judgment/Orders delivered /passed at the Jammu Bench shall be filed, heard and decided at the Jammu Bench. Provided that if it is not practicable to file an appeal pertaining to the particular Bench at that Bench it may be filed at the other Bench with the leave of the Chief Justice or in his absence, of the Senior Judge available at the headquarter.
This order shall take effect from 1st November, 1993.
15. The above order manifestly reflects that the Chief Justice or in his absence, Senior Judge available at the headquarter can only grant leave to file a Letters Patent Appeal pertaining to one Wing at the other Wing, if it is not practicable to file such appeal before the same Wing where the matter was initially decided.
16. It would be necessary to quote the relevant portion of the observations made by the Supreme Court in paragraph 6 of Rajni Sehgals case (supra) in this regard, which runs as under:-
By the order dated October 26, 1993 the Chief Justice of High Court had given directions that Letters Patent Appeals directed against the judgment /Orders delivered/passed at Srinagar Bench or Jammu Bench must be filed in the Bench where the judgment or order is passed and that only in exceptional circumstances mentioned in the proviso, viz., when it is not practicable to file an appeal pertaining to the particular Bench at that Bench, the appeal can be filed in the other Bench with the leave of the Chief Justice or in his absence the Senior Judge available at the headquarter. In the present case, the contingency referred to in the proviso did not arise because the Arrangement of Sitting in the High Court at Jammu for the week commencing from July 30, 1996 shows that a Division Bench was available at Jammu..
17. In consideration of the above as well as having regard to the ratio laid down in Rajni Sehgals case (supra) and H. S. Ramals case (supra), it is reiterated that the Chief Justice has the exclusive power to cause shifting of cases from one Wing to the other Wing and that too only in exceptional circumstances. It is, accordingly, opined that the use of expression / word transfer is a misnomer, and in the fitness of things it is felt that it would be appropriate to use the expression shifting of case from one Wing to the other Wing and its allotment before the appropriate Bench sitting in that Wing whereto the case has been shifted. It is made clear that such shifting of case can be done only in case of exceptional circumstances.
Needless to say that in case of filing of a fresh case in either Wing of this High Court, the same principle shall be applied.
18. In view of the above discussions and observations, this Court, on being satisfied with the submissions and averments canvassed by learned counsel for the parties, is of the view that in the interest of justice, the instant case i.e. 561-A Cr.P.C. No.170/2009 entitled Mst. Rozia Akhter Vs. State of Jammu and Kashmir, needs to be shifted from Srinagar Wing to Jammu Wing of this High Court and the same be allotted before the appropriate Bench at Jammu Wing. It is ordered accordingly.
19. In the result, the application is allowed.
(Dr. Aftab H. Saikia) Chief Justice Jammu:
14.12.2010 Tilak, Secy.