{"id":75545,"date":"1963-09-04T00:00:00","date_gmt":"1963-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-kaushalya-devi-vs-shri-mool-raj-and-others-on-4-september-1963"},"modified":"2017-03-29T20:27:55","modified_gmt":"2017-03-29T14:57:55","slug":"smt-kaushalya-devi-vs-shri-mool-raj-and-others-on-4-september-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-kaushalya-devi-vs-shri-mool-raj-and-others-on-4-september-1963","title":{"rendered":"Smt. Kaushalya Devi vs Shri Mool, Raj And Others on 4 September, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Kaushalya Devi vs Shri Mool, Raj And Others on 4 September, 1963<\/div>\n
Bench: P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. Mudholkar<\/div>\n
           PETITIONER:\nSMT.  KAUSHALYA DEVI\n\n\tVs.\n\nRESPONDENT:\nSHRI MOOL, RAJ AND OTHERS\n\nDATE OF JUDGMENT:\n04\/09\/1963\n\nBENCH:\n\n\nACT:\nPractice-Application by accused for transfer-Affidavit by\ntrying Magistrate opposing application-Propriety.\n\n\n\nHEADNOTE:\nCriminal proceedings were started against the petitioner and\nthree  others on an complaint made by the  first  respondent\nalleging  that\tthe  four  accused  persons  had   committed\noffences under s. 420 read with s. 120B of the Indian  Penal\n(,ode.\t Originally  the Magistrate had dispensed  with\t the\npersonal  appearance  of  the petitioner in  court,  but  on\napplication made by the complainant, the Magistrate made  an\norder  directing  the petitioner to be present in  court  in\norder to give an opportunity to the complainant's witness to\nidentify  her.\tApprehending that this order would  lead  to\nher prejudice, she made an application in the Supreme  Court\nfor  transfer  of  the\tcase to some  other  court,  on\t the\ngrounds,   inter  alia,\t that  the  facts  alleged  by\t the\ncomplainant might perhaps constitute a civil dispute but the\nsaid  facts  had been deliberately twisted  and\t a  criminal\ncomplaint had been made to harass the petitioner.  After the\npetition  was  admitted\t and interim  stay  -ranted  to\t the\npetitioner  pending  the hearing and final disposal  of\t the\nmain petition, an affidavit was filed on behalf of the Delhi\nAdministration,\t by  the Magistrate  himself,  opposing\t the\napplication  and  stating,  Inter  alia,  that\tthe   clause\nindemnifying  the  purchaser contained in the sale  deed  on\nwhich  the petitioner relied on would not absolve the  peti-\ntioner from criminal liability.\t Thus it was clear that\t the\ndeponent  Magistrate  had adopted the argument\twhich  might\nprobably be. -urged by the complainant at the trial.\n885\nHELD : (i) The action of the Magistrate in making an-affida-\nvit  and  opposing the application for transfer\t was  wholly\nimproper.\nIn   criminal  trials,\tparticularly,  it  was\t of   utmost\nimportance  that  the  Magistrate who tried  the  case\tmust\nremain\t fearless,  impartial  and  objective;\tand   if   a\nMagistrate  chose  to  male  an\t affidavit  challenging\t the\napplication made by in accused person whose case was pending\nin  his\t court,\t made the said affidavit on  behalf  of\t the\nAdministration,\t and  in  the affidavit put  a\tstrong\tplea\nopposing  the transfer, all essential attributes of  a\tfair\nand  impartial\tcriminal  trial\t were  immediately  put\t  in\njeopardy.\n(ii)Even without considering the merits of the contentions\nraised bythe  petition or, it was expedient in the ends\t of\n'Justice that the caseshould be transfered to some  other\ncourt of competent jurisdiction.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Transfer Petition No. 15 of 1963.
\nPetition  for  transfer of a criminal case  pending  in\t the
\nCourt of Sub Divisional Magistrate Delhi to any other  Court
\nin a neighbouring State.\n<\/p>\n
B.   C. Misra, for the petitioner.\n<\/p>\n
R.   N. Sachthey, for respondent No. 5.\n<\/p>\n
September 4, 1963.  The Judgment of the Court was  delivered
\nby
\nGAJENDRAGADKAR,\t J.-The\t petitioner Mrs. Kaushalya  Devi  is
\nbeing  tried along with three other persons in the Court  of
\nthe   Sub-Divisional  Magistrate,  Delhi.   These   criminal
\nproceedings commenced on a complaint made by Mool Raj  Hukam
\nChand  against\tthe  petitioner\t and  three  other   persons
\nalleging  that\tthe  four  accused  persons  had   committed
\noffences  under section 420 read with s. 120B of the  Indian
\nPenal Code.  The complainant’s case is that the\t transaction
\nbetween\t  him  and  the\t petitioner  in\t relation   to\t the
\nregistration  of Plot No. 210 in Meenakashi Garden  was\t the
\nresult of cheating.  This transaction took place,  according
\nto  him, in June, 1959, and the complainant had paid to\t the
\npetitioner  Rs. 1150 at the time of the registration of\t the
\ndocument.  According to him, the plot shown to him and given
\nin  his possession in pursuance of the said transaction\t did
\nnot belong to the petitioner and that, in substance, is\t the
\nbasis of the charge under s. 420 read with s. 120B 1. P.  C.
\nThe complaint alleges that after
\n886<\/span>
\nindependence, a profession of colonisers who cheat the illi-
\nterate\tand poor people by clever means and relieve them  of
\ntheir  hard-earned  income,  has grown\tin  Delhi,  and\t the
\ncomplainant’s grievance against the petitioner and the three
\nother  persons mentioned by him in his complaint appears  to
\nbe  that they belong to this class of dishonest\t Colonisers.
\nThe complaint was filed in the Court of Mr. R.\t  N.  Singh,
\nMagistrate 1st Class, Delhi.\n<\/p>\n
After the petitioner appeared before the learned Magistrate,
\nan application was made on her behalf under s.253(2) of\t the
\nCriminal Procedure Code for her discharge, but no order\t was
\nmade on the said application.  The petitioner alleges in her
\npresent petition that after she moved the learned Magistrate
\nunder  s. 253(2) of the Code, the complainant realised\tthat
\nhis complaint suffered from several infirmities, and so,  he
\nbegan to make additions and improvements in the case set out
\nby  him against the petitioner.\t With that object  he  urged
\nbefore\tthe learned Magistrate that though  the\t transaction
\nbetween\t him  and the petitioner was  substantially  carried
\nthrough\t by the agents of the petitioner who are  the  three
\nother  accused\tpersons\t in the\t case,\tthe  petitioner\t was
\npresent\t at the spot at the relevant time and  he  suggested
\nthat  his  witnesses would identify the\t petitioner  as\t the
\nperson\twho  was  present at the spot on  the  relevant\t and
\nmaterial occasion during the course of the negotiations\t and
\nbefore the transaction was finalised.\n<\/p>\n
On  this representation, the complainant obtained  an  order
\nfrom the learned Magistrate, Mr. Grover who was then  trying
\nthe case, that the petitioner should be produced in court on
\nthe  29th May, 1962.  Till then, the learned Magistrate\t had
\ndispensed with the personal appearance of the petitioner  in
\ncourt, but by the order passed by him on the 29th May, 1962,
\nshe was directed to be present in court in order to give  an
\nopportunity to the complainant’s witnesses to identify\ther.
\nThe  petitioner’s  case is that she was not present  on\t the
\nscene  and so, none of the complainant’s witnesses had\tseen
\nher  at\t all;  the complainant’s  motive  in  requiring\t the
\npetitioner  to\tbe  present  in\t court\twas  obvious-if\t the
\npetitioner attended the court, she would be asked to sit  in
\nthe  place meant for accused persons and, even otherwise  in
\nall  probability, she would be the only lady present  court.
\nThat is how the complainant’s
\n887<\/span>
\nwitness could wily pretend to identify her as die person who
\nwas  present  on the scene.  Apprehending  that\t this  order
\nwould lead to her prejudice, the petitioner moved this Court
\nfor  transfer of the proceedings pending against her  before
\nMr.  Grover (Transfer Petition No. 8\/1962).  At the  hearing
\nof  the said petition, this Court adjourned the\t matter\t for
\nthree  weeks  to enable the petitioner in  the\tmeantime  to
\napply  to the Sessions Judge for transfer of the case  to  a
\nMagistrate  drawn from a State other than  Punjab.   Interim
\nstay  which had been granted by this Court  after  admitting
\nthe  transfer  petition\t was ordered to\t continue  till\t the
\ndisposal of the said petition.\n<\/p>\n
Subsequently,  the  petitioner moved  the  learned  Sessions
\njudge,\tDelhi,\tand  the case  against\tthe  petitioner\t was
\ntransferred  to\t the  Court of Mr. S.  N.  Chaturvedi,\tSub-
\nDivisional  Magistrate, Delhi, and so, the proceedings\twere
\nresumed\t in  his  Court.  During the course  of\t these\tpro-
\nceedings, the learned Magistrate, however, saw no reason  to
\nmodify\tthe  order  already passed  against  the  petitioner
\ndirecting  her to be present in court when the\tcomplainants
\nwitnesses  would give evidence, and the arguments  urged  by
\nthe  petitioner\t against the propriety and validity  of\t the
\nsaid order were rejected by the learned Magistrate.  That is
\nwhy  the petitioner has filed the present  petition  praying
\nthat the criminal Case No. 44\/2 which is at present  pending
\nagainst\t her and three other persons in the Court of Mr.  S.
\nN.  Chaturvedi, S. D. M., Delhi, should be transferred\tfrom
\nthe said Court to any other Court of competent\tJurisdiction
\nin any neighbouring State.\n<\/p>\n
In  the course of her petition, the petitioner\thas  alleged
\nthat  Dalip  Singh who is one of the persons  accused  along
\nwith  her, had been appointed by her as her agent,  but\t the
\npetitioner has now learnt that Dalip Singh is a great friend
\nof Sardar Partap Singh Kairon, Chief Minister of Punjab, and
\nthat  his  antecendants are far from satisfactory.   It\t has
\nbeen  averred in the present petition that Dalip  Singh\t has
\nrecently  undergone six months’ rigorous imprisonment  on  a
\ncharge\tof cheating and was later involved in other  serious
\noffences.   Her\t apprehension  is  that\t by  virtue  of\t his
\nfriendship  with the Chief Minister of Punjab,\tDalip  Singh
\nwields\tconsiderable  influence\t and  may  take\t steps\t to,
\nprejudice the petitioner’s case, though he
\n888<\/span>
\nhappens\t to  be one of the accused persons.   In  fact,\t the
\npetitioner  avers that “it is not without significance\tthat
\nDalip  Singh  had been holding out the threat  that  if\t the
\npetitioner’s  case is transferred to any Delhi\tMagistrate’s
\nCourt, lie would get her convicted.”\n<\/p>\n
In fact, the main point which the petitioner has made in the
\npresent petition is that the present complaint is  frivolous
\nand  has  been filed against her because she happens  to  be
\nmother-in-law of Mr. R. P. Kapur who has incurred the  wrath
\nof the Chief Minister of Punjab.  The petitioner herself  is
\n61  years old and has been involved in several\tcases  along
\nwith her son-in-law Mr. Kapur.\tHer grievance appears to  be
\nthat  putting the case of the complainant at its  best,\t the
\nfacts alleged by him in his complaint may perhaps constitute
\na  civil dispute, but the said facts have been\tdeliberately
\ntwisted and a criminal complaint has been made to harass the
\npetitioner.\n<\/p>\n
After this petition was admitted and interim stay granted to
\nthe petitioner pending the hearing and final disposal of the
\nmain petition, an affidavit has been filed on behalf of\t the
\nDelhi  Administration by Mr. Chaturvedi, the  Sub-Divisional
\nMagistrate,   himself  and  that  has  created\t a   serious
\ncomplication.\tIn the ordinary course, an affidavit  should
\nhave  been  filed  by some officer  representing  the  Delhi
\nAdministration.\t An affidavit could also have been filed  by
\nthe  complainant; but it is not easy to understand  how\t the
\nDelhi\tAdministration\trequested  the\tlearned\t  Magistrate
\nhimself\t  to  make  the\t affidavit,  and  how  the   learned
\nMagistrate accepted the said request.  In the petition,\t the
\npetitioner  has\t not made any specific\tpersonal  allegation
\nagainst\t the learned Magistrate in whose court\tthe  present
\npetition   is  pending.\t  The  main  ground  on\t which\t the
\npetitioner  is seeking transfer from his court is that\tlike
\nMr.  Grover, the present Magistrate also is  insisting\tupon
\nthe  petitioner remaining present in court, and\t that,\tsays
\nthe petitioner, is an unreasonable and irrational order.  In
\nother words, just as the petitioner moved the Sessions Court
\nsuccessfully for transfer of her case from the court of\t Mr.
\nGrover\ton the ground that the said Magistrate had  directed
\nthe petitioner to remain present in court for the purpose of
\ngiving\tan  opportunity to the\tcomplainant’s  witnesses  to
\nidentify her, so she made the
\n889<\/span>
\nsame request by her present petition, because the same order
\nwas being enforced by the Sub-Divisional Magistrate in whose
\ncourt  her  case  now stands transferred; and  if  the\tSub-
\nDivisional Magistrate himself had not made an affidavit,  we
\nwould  have  had  to consider whether it  was  necessary  to
\ntransfer the case on the ground made by the petitioner;\t but
\nin  view  of  the fact that  the  Sub-Divisional  Magistrate
\nhimself\t has,  in  a sense, entered the\t arena\tand  made  a
\ncounter-affidavit  opposing  the transfer  application,\t the
\ncomplexion  of the problem is completely changed.   That  is
\nwhy  we have just indicated after the present  petition\t was
\nadmitted, a serious complication has arisen by virtue of the
\nfact  that the Sub-Divisional Magistrate himself has made  a
\ncounter-affidavit.\n<\/p>\n
The affidavit of the Sub-Divisional Magistrate is  described
\nas an affidavit made on behalf of the Delhi  Administration.
\nIn  his\t affidavit,  the  Magistrate  has  covered  all\t the
\nallegations  made by the petitioner paragraph  by  paragraph
\nand  naturally\tin  several  places he\thas  said  that\t the
\nallegations  relate to facts which are not within  Ms  know-
\nledge,\tand so, he cannot make any averment in that  behalf.
\nEven  so,  in  paragraph 6 of the  affidavit,  the  deponent
\nMagistrate  has\t alleged that the  clause  indemnifying\t the
\npurchaser   contained  in  the\tsale-deeds  on\t which\t the
\npetitioner.   Relies, would not absolve he  petitioner\tfrom
\ncriminal liability; and, thus, it 13 clear that the deponent
\nMagistrate  has adopted the argument which may\tprobably  be
\nurged  by the complainant at the trial.\t The  affidavit\t has
\nfurther\t averred that the executive has no influence so\t far
\nas the deponent’s court is concerned, and it has  emphasised
\nthat “there is no Justifiable cause for any apprehension  on
\nthe part of the petitioner which would justify the  transfer
\nof  her\t case from this Court”.\t In the end,  the  affidavit
\nsays   that  the  petition  made  for  transfer\t should\t  be
\ndismissed.\n<\/p>\n
This   Court  has  had\toccasion  to  deal   with   transfer
\napplications in several cases, but we have never come across
\na  case where the allegations made in the transfer  applica-
\ntions  are  contested by an affidavit made  by\tthe  learned
\nMagistrate  who tries the case himself.\t It is true that  if
\nin a petition for transfer allegations are made against\t the
\nMagistrate in regard to what he said or did during the
\n57-2 S. C. India\/64
\n890<\/span>
\ncourse\t of  the  trial,  and  it  appears  that  the\tsaid
\nallegations  require to be examined, this Court calls for  a
\nreport\tfrom  the  Magistrate ; and when a  report  is\tthus
\ncalled\tfor,  the Magistrate no doubt gives his\t version  in
\nrespect\t of the allegations made by the\t petitioner  against
\nhim.  But it is impossible to understand how the  Magistrate
\nin  whose court the proceedings in question are pending\t can
\nrush  into  the arena and make an  affidavit  disputing\t the
\nprayer\tmade by the petitioner for transfer of the case.   A
\ntransfer  application can be opposed by the  complainant  if
\nthe proceedings have commenced at the instance of a  private
\ncomplainant;  it  may  be  opposed by  the  State;  but\t the
\nMagistrate in whose court the proceedings are pending should
\nnever  forget that he is a judge and not a partisan for\t the
\nAdministration\tor  the\t prosecution;  that  is\t why  it  is
\ninconceivable  that  he should make an\taffidavit  like\t the
\npresent traversing the grounds set out by the accused person
\nwhen  an application for transfer is made by  him\/her,\tbut,
\nunfortunately,\tthat is precisely what has happened  in\t the
\npresent case.  The statement made by the learned  Magistrate
\nin  paragraph 6 of his affidavit, to which we  have  already
\nreferred,  clearly shows that the Magistrate has  assumed  a
\npartisan  role and has purported to contest the\t plea  which
\nthe petitioner wanted to raise in defence in respect of\t the
\ncharge levelled against her by the complainant.
\nUnfortunately,\tin some parts of the country, the policy  of
\nseparating  the Judiciary from the executive has  still\t not
\nbeen implemented.  Nevertheless, we are confident that\teven
\nin areas Where such separation has not taken place,  members
\nof  the\t judiciary are functioning without fear\t or  favour.
\nBut when an instance like the present comes to the notice of
\nthis  Court,  it naturally causes us  considerable  concern.
\nThe learned Magistrate who has been ill-advised to make\t the
\npresent affidavit, did not realise that when he entered\t the
\narena and made an affidavit on behalf of the Administration,
\nhis  statement\tthat the executive has no influence  in\t his
\ncourt,\tis  apt\t to sound idle and  meaningless.   A  little
\nreflection would have satisfied him of the gross impropriety
\nof  his action in making an affidavit like the present.\t  It
\nis  an elementary principle of the rule of law\tthat  judges
\nwho preside
\n891<\/span>
\nover  trials, civil or criminal, never enter the arena.\t  In
\ncriminal  trials, particularly, it is of  utmost  importance
\nthat the Magistrate who tries the case must remain fearless,
\nimpartial and objective; and so, no argument is required  in
\nsupport\t of the proposition that if a Magistrate chooses  to
\nmake  an  affidavit challenging the application made  by  an
\naccused person whose case is pending in his court, makes the
\nsaid  affidavit on behalf of the Administration, and in\t the
\naffidavit  puts in a strong plea opposing the transfer,\t all
\nessential attributes of a fair and impartial criminal  trial
\nare  immediately  put in jeopardy.  It is very\tmuch  to  be
\nregretted that the Delhi Administration chose to request the
\nMagistrate  to\tmake an affidavit and  that  the  Magistrate
\naccepted  the  said request and made the  affidavit  on\t the
\nlines  we  have\t already indicated.   That  being  so,\teven
\nwithout considering the merits of the contentions raised  by
\nthe  petitioner,  we think it is expedient for the  ends  of
\njustice\t that  the case pending against the  petitioner\t and
\nthree other persons should be transferred from the court  of
\nthe learned Sub-Divisional Magistrate, Delhi, to a court  of
\ncompetent  jurisdiction in Saharanpur, U. P. We\t accordingly
\ndirect\tthat the papers in this case should be sent  to\t the
\nDistrict  Magistrate,  Saharanpur,  who\t should\t nominate  a
\nMagistrate of competent jurisdiction in his district to\t try
\nthis case.\n<\/p>\n
It is true that three other persons also stand charged along
\nwith  the petitioner in the present case, but having  regard
\nto the unusal facts which have justified the transfer, we do
\nnot  think it necessary to consider whether the\t said  three
\naccused persons are agreeable to have their case transferred
\nto  a  court of competent Jurisdiction in  Saharanpur.\t The
\ncomplaint  discloses  that  the\t said  accused\tpersons\t are
\nalleged to be concerned with the offences only as agents and
\nrepresentatives\t of the petitioner, and so, the main  charge
\nis  against  the petitioner herself.  Besides, on  the\tlast
\noccasion when the learned Sessions judge, Delhi, transferred
\nthe  case from the court of Mr. Grover to the court  of\t the
\nSub-Divisional\tMagistrate, the transfer was ordered  mainly
\nat the instance of the petitioner alone.\n<\/p>\n
In  this connection, we ought to make it clear that we\thave
\nriot heard the complainant Mool Raj, nor Dalip Singh against
\nwhom the petitioner has made several alle-\n<\/p>\n
892<\/span><\/p>\n
gations, and so, in ordering the transfer of the case  pend-
\ning against the petitioner, we are expressing no opinion  on
\nthe allegations made by the petitioner against the said\t two
\nparties or against the Chief Minister of Punjab.
\nTransfer ordered.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Kaushalya Devi vs Shri Mool, Raj And Others on 4 September, 1963 Bench: P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. Mudholkar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-75545","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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