NEM CHAND Vs. STATE

JUDGEMENT

(1.) THIS is an application for transfer of a case pending in the Court of Sri Girja Shanker Misra, special Magistrate, first Class, Lucknow. Under a notification issued by the U. P. Government powers of a Magistrate of the first class were conferred upon Sri Girja Shanker Misra to try or commit cases investigated by the Government of India Special Police Establishment throughout uttar Pradesh for so long as he held the office of the Special Magistrate.

(2.) THE case against Nem Chand applicant was investigated by the Government of India Special police Establishment and consequently it came up for trial before the learned Special Magistrate. The transfer is sought mainly on two grounds. One ground is that it is highly inconvenient and expensive to the applicant to be tried in Lucknow when he resides in the District of Sharaapur and all his defence witnesses also come from Saharanpur. It is said that the balance of convenience would be in favour of having the case tried at Saharanpur, because there are only six prosecution witnesses, four of whom come from Saharanpur and the neighbouring district of dehra Dun; whereas all the sixteen defence witnesses come from the district of Saharanpur. The second ground taken is that the same learned Magistrate has already decided another case against the applicant and the evidence in this case as well as in that case is similar, if not exactly identical, and the same considerations of fact and law are involved so that the accused apprehends that the learned Magistrate may not be able to give an unbiased consideration to the matters coming up before him in this case.

(3.) WHEN this application came up for arguments, we had to consider a preliminary question of law on account of which this application was referred to a Bench for decision. Some doubt arose as to the question whether this application for transfer could be heard by Judges sitting at lucknow. The main facts which have to be considered in this connection are that the case which is pending before the learned Special Magistrate relates to all acts which were committed in saharanpur district, so that the offence which is the subject-matter of the charge to be tried by the Special Magistrate was committed in the district of Saharanpur. Under the first proviso to clause 14 of the U. P. High Courts (Amalgamation) Order 1948, the Judges of the High Court at allahabad are to sit at Lucknow in order to exercise, in respect of cases arising in such areas in oudh as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court. It was contended that the case which was pending before the Special Magistrate did not arise from any area in Oudh and consequently the Judges sitting at Lucknow could not exercise the jurisdiction of transferring the case from his Court. This argument, in our opinion, proceeds on a misunderstanding of the words "in respect of cases-arising in such areas in Oudh" used in the proviso to Clause 14, U. P. High Courts (Amalgamation) Order, 1948. The word 'cases' there refers to the, cases which come up for decision before the High Court and not to the cases pending in lower Courts which may have given rise to the cases coming up before this Court. At present, the case we are dealing with is a criminal Miscellaneous Case for transfer of another case that is pending in the Court of the special Magistrate at Luck-now. This Miscellaneous case of transfer, there can be no doubt, arises out of proceedings which are going on at Lucknow in the Court of the Special Magistrate. The case for transfer is, therefore, a case which has arisen in Lucknow and consequently it is quite clear that, under the proviso, referred to above, this Bench sitting at Lucknow can exercise the jurisdiction and power for the time being vested in the Allahabad High Court in respect of it.