REX Vs. MOHD ILYAS

JUDGEMENT

(1.) This is an application for the transfer of a case on behalf of the accused Mohammad Ilyas who is being tried in the Court of Shri H.M. Srivastava, Judicial Magistrate, Meerut, Under Section 420, Penal Code on the complaint of one Manzoor Hasan.

(2.) I have considered the various points raised on behalf of the applicant in support of this application. The first of these points is that the learned Magistrate to whom the case had been transferred after a certain amount of evidence had been recorded in the Court of another Magistrate refused to record the evidence afresh although an application was made to him on behalf of the applicant praying for a trial de novo. Such an application was no doubt made on behalf of the applicant on 24th May 1949. But it appears that a fortnight earlier, on 10th May 1949, when the case first came up for hearing before the learned Magistrate, he put a definite question to the accused and enquired of him whether he claimed a de novo trial. At that stage he declined a de novo trial and said that he would be content if the witnesses already examined were recalled for further cross-examination on his behalf and this prayer was accepted. Obviously, after having once declined to claim a de novo trial, the applicant had no further right to claim it at a latter stage and the application moved on his behalf on 24th May 1949, was obviously misconceived. The learned Magistrate was, therefore, right in rejecting it.

(3.) The next point raised on behalf of the applicant is that the learned Magistrate was once seen shopping at Delhi during the course of the hearing of this case in the company of one Shri Krishna Gopal Rastogi, advocate, and that when he saw the applicant he made a remark to the said advocate that that was his 'accused.' It is further said that on the following morning, the learned Magistrate was again seen at Delhi accompanied, by a pairokar of the complainant. The learned Magistrate admits that he met Shri Krishna Gopal Rastogi, at Delhi and had some talk with him although he denies that he said anything to him about the applicant. It appears that this lawyer was not appearing on behalf of the complainant at all, but was probably only under training with one of the lawyers who was appearing on behalf of the complainant. The fact that the Magistrate met or talked to a lawyer who was either appearing on behalf of the complainant or was working as a junior under training to one of his lawyers appears to be of no consequence at all, and cannot give rise to any reasonable apprehension in the mind of any normal person that the Magistrate would not try the case impartially. The allegation that on another date the learned Magistrate was seen in the company of a pairokar of the complainant at Delhi is very vague. It appears that in an earlier application made by the applicant before the District Magistrate of Meerut for the transfer of this very case, he has described that person as a friend of the complainant and had not mentioned the fact that he was his pairokar. In the affidavit that was filed on behalf of the applicant in support of that application before the District Magistrate he had particularly referred to the Magistrate having been seen in the company of the compalinant's 'vakils' but he made no mention of the fact that he had also been seen in the company of a friend or pairokar of the complainant. I am not satisfied that this allegation is at all correct.