SHIVASHARAN REDDY Vs. STATE OF MYSORE

JUDGEMENT

(1.) This is a petition for transfer under Section 26 Cr. P.C. The petitioner is the complainant who filed a report before the police of Chitapur against accused No. 1 and 26 others for offences under Sections 395, 452 read with 149 I.P.C. complaining that A-1 with the help of others had committed decoity in respect of 150 bags of Jawar kept in his godown. The police filed the charge-sheet against the accused-respondents before the Munsiff-Magistrate, Chitapur on 19-5-65. Since the presiding officer of that court happened to be a tenant of A-1, he made a reference to the Sessions Judge Gulbarga, for transfer of that case some other court for enquiry. The learned Sessions Judge passed an order transferring the case to the file of the Munsiff-magistrate, Sedam. The Munsiff-Magistrate, Sedam, committed the accused to Sessions for trial. The accused-respondents stand their trial before the Sessions Judge, Gulbarga for offences under Sections 295, commenced on 27-7-1967 and a witness was examined for the prosecution, the petitioner who was being examined as P. W. 2 resented an application to the Sessions Judge stating that he would move the High Court for transfer of the case under S. 526 Cr. P. C. to some other court of Session. The Sessions Judge of Gulbarga passed an order as under:

(2.) Before going into the merits of the case, it is necessary to deal with two objections raised by Mr. Malimath, learned counsel appearing for respondents 2 to 11, 13 to 24 and 26 to 28, which are in the nature of preliminary objections in this case. The first objection raised by Mr. Malimath is that the petitioner has no locus stand to move for transfer of this case. The second objection is that the affidavit filed by the petitioner is not in accordance with the provisions of Section 539A Cr. P. C. and therefore it cannot be looked into as evidence coming under the said provisions.

(3.) As regards the first objection, Mr. Malimath relied upon the provisions f Section 526(3) and (8) Cr. P. C and argued that the expression "party interested" found in both the sub-sections does not include the petitioner who is not a complainant but who is only an informant and who laid a report before the police in a cognizable case. He urged that the petitioner may be considered to be a person interested but under no circumstances he can be treated as a party interested as required under sub-ss. (3) and (8) of section 526 Cr. P. C. referred to above. Further he urged that the petitioner intimated the court of his intention to move for transfer after one P. W. was examined. This, according to Mr. Malimath, is done with the mala fide intention to harass the accused. On the other hand, Mr. Dahpande, learned Advocate for the petitioner urged that the petitioner who laid a complaint before the police is a party interested and he has every right under these two sub-sections to move for a transfer of the case pending before the Sessions Judge, Gulbarga, and that he can do so at any stage before the defence closes its case. I find no force in the contention advanced by Mr. Malimath while I see great deal of force in the argument advanced by Mr. Deshpande. Mr. Deshpande invited my attention to a decision in N. C. Bose v. Probodh Dutta Gupta, AIR 1955 Assam 116 and strongly relied upon the said decision herein it is laid down as follows: