AJODHIA PRASAD Vs. STATE

JUDGEMENT

(1.) This is an application by a complainant for transfer of a case which is pending; before Shri M. D. Agarwal, Special Magistrate, first class, Jhansi, and which he has brought against the opposite party under section 500, Penal Code. The complaint was filed by the applicant on 30-7-1948. The case of the complainant was that the opposite party had defamed him, by calling him a communist and a sponsor of labour strikes. Whether on the facts allegect in the complaint a prima facie case of defamation has been made out is a question into which it is unnecessary for me to enter in this case. The complainant's case is that he is not a communist but an orthodox Congress worker who feels that the ideology and the principles for which the Congress stands are fundamentally opposed to communism. Whether again it is defamation to describe a congressman as a communist or by any other political label is a matter on which it is unnecessary for me to express any opinion. The learned Magistrate will doubtless bear in mind the relevant law on the questions raised by the complaint.

(2.) The case has had a chequered career; After having been transferred from one Court to another, it finally came to be tried by Shri M. D. Agarwal, a Magistrate of the first class, Jhansi. The applicant has applied for a transfer of the case on grounds which I shall now proceed to notice.

(3.) The first ground on which the applicant seeks to have the case transferred from the Court of Shri M. D. Agarwal is that Shri Agarwal belongs to the party, of Shri K. B. L. Shivani while the applicant belongs to a party headed by Shri Pangoria who also, I understand from para. 5 of the affidavit, is a staunch Congressman. Shri K. B. L. Shivani is appearing as counsel for the accused. The learned Magistrate, in a very frank and straight forward explanation for which he is to be commended, has stated that it is a fact that he was, before he became a Magistrate, an earnest Congress worker and that Shri Shivani is a friend of his. He, however, adds that the fact that he is on terms of friendship with Shri Shivani, in no way affects the fair and impartial trial of the case. In the circumstances of this case, I am clear in my mind that no importance can be attached to the fact that Shri Agarwal happens to be an old friend of Shri Shivani who is one of the counsel for the defence. No objection was taken by the applicant to the case being heard by Shri Agarwal at the time it was originally transferred to him. From the admitted facts of the case, it would appear that Shri Shivani has been appearing in the case from the very time the case was started by the complainant against the opposite party. I cannot understand why, if the applicant had some reasonable apprehension in his mind that he would not get a fair trial on account of the fact of Mr. Shivani being a personal friend of the Magistrate, he did not apply for a transfer of the case when it first came to be taken up by the learned Magistrate.