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CR.MA/1235/2010 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1235 of 2010
=========================================================
KRUSHNAKANT
KUBERDAS SHAH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK A DAVE for
Applicant(s) : 1,
MR KARTIK PANDYA, APP for Respondent(s) :
1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 09/02/2010
ORAL
ORDER
Heard
learned counsel for the petitioner and learned APP for the State.
In view of the ultimate conclusion I propose to reach, it is not
necessary to hear respondent No.2 at this stage.
Petitioner
is accused in Criminal Case No.1791 of 2009 pending before the
learned Judicial Magistrate, First Class, Kapadwanj. The petitioner
is facing allegations of dishonour of cheques. In the said criminal
case, the petitioner moved the learned Sessions Judge, Nadiad by
filing Criminal Misc. Application No.637 of 2009 and prayed that the
Criminal Case be transferred before any other Magistrate on the
ground that the concerned Magistrate is a tenant in the premises of
the complainant. This application came to be turned down by the
learned Sessions Judge by the impugned order dated 7.1.10.
Having
gone through the material on record, I find that it is undisputed
that the concerned learned Magistrate is a tenant of a premise of
the complainant. However, the learned Sessions Judge was of the view
that the petitioner has made allegations against the integrity of the
learned Magistrate and on that count, refused to transfer the
proceedings.
I
am in full agreement with the view of the learned Sessions Judge in
this respect. The petitioner has made allegations without
producing supporting material. Counsel for the petitioner undertook
to withdraw such allegations unconditionally.
The
fact, however, remains that the learned Magistrate is occupying the
premise of the complainant as a tenant. She herself ought to have,
upon being pointed out this fact, refused to hear the criminal case.
When this aspect was brought to the notice of the learned Sessions
Judge, on this ground, the request for transfer of the case could
have and should have been entertained. However, primarily on the
ground that the petitioner has made flimsy allegations on the
integrity of the learned Judge without any material, the learned
Judge was pleased to turn down his application.
Now
that the petitioner is prepared to withdraw all such allegations, it
will be open for the petitioner to make fresh application for
transfer of proceedings which the learned Sessions Judge may hear
and decide afresh bearing in mind the observations made in this order
and unmindful of the earlier order which is under challenge in this
proceedings.
The
petition is disposed of accordingly.
Direct
service.
(Akil
Kureshi, J.)
(vjn)
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