Rajasthan High Court - Jaipur
Sukh Das And Ors. vs State Of Rajasthan And Anr. on 12 May, 2004
Equivalent citations: 2004CRILJ3080, RLW2004(4)RAJ2364, 2004(3)WLC668
ORDER Sunil Kumar Garg, J.
1. This criminal transfer petition under Section 407, Cr.P.C. has been filed by the accused petitioners against the order dtd. 18-7-2003 passed by the learned Sessions Judge Hanumangarh in Criminal Misc. Case No. 60/2003 by which he transferred the Sessions case No. 67/2001 pending in the Court of Additional Sessions Judge, Nohar to the Court of Additional Sessions Judge (Fast Track) No. 3, Hanumangarh.
2. On the report of respondent No. 2 Mohan Lal (complainant) a FIR No. 25/92 under Section 302, I.P.C. was registered on 19-6-1992 and the police submitted FIR in the matter and thereafter on the protest petition, ultimately cognizance was taken against the accused petitioner and the case was committed to the Court of Additional Sessions Judge, Nohar on 1-10-2001 for offence under Sections 302, 342, 341, 147, 148 and 149, I.P.C.
3. In that ease charges for offence under Sections 302, 342, 341. 147, 148 and 149, I.P.C. against the accused petitioners through order dtd. 16-11-2002 passed by the learned Additional Sessions Judge Nohar were framed and thereafter the case was fixed for evidence of prosecution on. 15-1-2003 and 25-1-2003, but no witness was produced on behalf of the prosecution and the case was adjourned to 27-2-2003, 22-3-2003 and 24-3-2003, but no witness was produced. Thereafter the case was adjourned to 16-4-2003 and 17-4-2003, 28-5-2003, 29-5-2003, 25-6-2003, 26-6-2003 and 21-7-2003. However, no witness was examined on all these dates.
4. In the meantime on 10-2-2003 an application was moved by the complainant-respondent under Section 408, Cr.P.C. before the Court of Sessions Judge, Hanumangarh stating inter alia :
(i) That since the accused petitioners have changed their advocates from time to time and they have also engaged the real brother of Addl. P.P. and therefore, the case may be transferred to another Court.
5. On that application, comments were sought from the Additional Sessions Judge, Nohar and as per the comments of the Additional Sessions Judge, 110 delay was being caused by the Court so far and the witnesses of the prosecution were not being produced and Mahipal Singh was. counsel for accused Bhagat Ram and rest accused persons were being represented by Rajaram Godara and APP in the Court of Additional Sessions Judge, Nohar was Prahlad Singh and the case was being represented properly by the APP and if was wrong to say that brother of APP was one of the counsel for the accused persons.
6. That thereafter the learned Sessions Judge, Hanumangarh through order dtd. 18-7-2003 transferred the Sessions case No. 67/2001 to the Court of Additional Sessions Judge (Fast Track), No. 3, Hanumangarh.
7. Aggrieved from the order dtd. 18-7-2003 this transfer petition has been preferred by the accused petitioners.
8. In tills petition, the main submission of the learned counsel for the accused petitioners is that since all the grounds which were taken by the complainant-respondent No. 2 in his transfer application were repelled by the learned Additional Sessions Judge, Nohar through his comments, therefore, there was no justification for transfer of the case and hence the order dtd. 18-7-2003 passed by the learned Sessions Judge suffers from basic infirmity and illegality and hence the same deserves to be quashed and set aside and this petition deserves to be allowed.
9. Heard the learned counsel for the parties.
10. Transfer of a case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefor; only good and sufficient grounds, clearly set out in the order, may justify the transfer.
11. A transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice, The yardstick is interest of justice.
12. In the present case after perusing the comments as given by the learned Additional Sessions Judge, Nohar, it clearly appears that all the submissions raised by the learned counsel for the complainant-respondent No. 2 were repelled by the learned Additional Sessions Judge through his comments and therefore, transfer of the Sessions case No. 67/2001 pending in the Court of Additional Sessions Judge, Nohar to the Court of Additional Sessions Judge (Fast track) No. 3, Hanumangarh was not at all justified.
13. The main grievance of the complainant (respondent No. 2) in his transfer application was that brother of APP was engaged by the accused petitioners, but the comments of the learned Additional Sessions Judge as mentioned in para 4 of the impugned order dtd. 18-7-2003 make the position clear that brother of APP was not engaged by the accused petitioners and thus, the grounds for which transfer was sought were not existing and in view of this fact, the impugned order dtd. 18-7-2003 passed by the learned Sessions Judge cannot be justified and when the grounds for transfer were not existing, but despite that the case was transferred. it would certainly indirectly had cast doubt on the competence and integrity of the then learned Additional Sessions Judge, Nohar and therefore, the impugned order dtd. 18-7-2003 cannot be sustained.
14. For the reasons mentioned above, the impugned order dtd. 18-7-2003 passed by the learned Sessions Judge, Hanumangarh suffers from basic infirmity and illegality and the same deserves to be quashed and set aside and this transfer petition deserves to be allowed.
Accordingly, the present transfer petition is allowed and the order dtd. 18-7-2003 passed by the learned Sessions Judge, Hanumangarh is quashed and set aside.