K SHANKAR Vs. H H SAJID JHOMES

JUDGEMENT

(1.) This is an application filed under Section 407 Cr.P.C. by the de facto- complainant K.Shankar in C.C.No. 1284/96 on the file of XI M.M. Court, Secunderabad for transfer of that case to any other Metropolitan Magistrate's Court in Hyderabad.

(2.) On a private complaint filed by this petitioner, the learned XI Metropolitan Magistrate, Secunderabad took the case on file under Section 323 I.P.C. against the respondents 1 and 2 herein, who are working as Officers in Air-Force Station, Begumpet. The summons were issued to the respondents for their appearance in Court both through Court as well as by registered post The summons were not returned by the S.H.O., Bowenpally, Secunderabad i.e., the 3rd respondent herein. But, the learned Magistrate went on issuing fresh summons from time to time even though the summons issued through Court as well as R.P. were not returned by the 3rd respondent to whom they were sent for service on respondents. It is alleged in the affidavit of the petitioner appended to this petition that the learned Magistrate has been favouring the respondents-Accused, that in spite of the fact that the Counsel for the petitioner produced the letters received from the postal authorities to the effect that the summons sent through R.P. were served on the respondents 1 and 2 alongwith a memo, the learned Magistrate failed to receive the said Memo and also failed to take coersive steps like issuance of non-bailable warrants for apprehension of the respondents-Accused. It is further alleged that when a representation was made by the learned Counsel for the petitioner, the learned Magistrate threatened that he is not going to give any direction to the 3rd respondent with regard to the service of summons and that the case will be dismissed for non- service of the summons on respondents. It is also alleged that the learned Magistrate is prejudiced against the petitioner and no justice will be done to him. It is further averred in the affidavit that when the petitioner approached the 3rd respondent, he demanded a bribe for service of summons and that in spite of his complaint, dated 30-12-1996 sent to the Inspector of Police, Bowenpally marking a copy of the Commissioner of Police, Hyderabad and Director General of Police, Hyderabad, no action was taken and that the summons were not served.

(3.) A report is called for from the learned Magistrate with regard to the allegations found in the petitioner's affidavit. The learned Magistrate in his report dated 19-11-1997 admits that though summons were issued both through Court and R.P. to the respondents-Accused, the said summons are not returned by the 3rd respondent herein and the postal acknowledgements also are not returned. He further stated that in spite of the fact mat the summons are not returned, he issued fresh summons on 14-10-1996, 25-11-96, 27-1-97,30-4-1997,27-8-97 and 19-11-97 and ultimately, the case is posted for the appearance of the respondents-Accused on 20-1-1998. This conduct of the learned Magistrate appears to be rather queer in issuing fresh summons every time without calling for any explanation from the concerned police for not returning the summons and also without calling for a report from the postal authorities with respect to service of the registered covers addressed to the respondents. This conduct on the part of the learned Magistrate lends credence to the apprehensions of the petitioner that the Magistrate has got soft- corner to the respondents-Accused or that he is prejudiced against the petitioner. The learned Magistrate in his report denied the petitioner's allegation that the Magistrate failed to receive the Memo filed on behalf of the petitioner enclosing the letters received from the postal authorities relating to the receipt of the registered letters addressed to the respondents and seeking issuance of non-bailable warrants against the respondents-Accused. In view of the apprehension by the petitioner that he may not get fair trial at the hands of the Presiding Officer of XI M.M. Secunderabad, which apprehension is not without any basis, I feel it just and reasonable that the petitioner's case should be tried by some other Magistrate. The cardinal principle in the administration of justice is that justice is not only done, but it should appear to have been done. Therefore, considering the facts and circumstances in this case, C.C.No. 1284/96 on the file of XI Metropolitan Magistrate, Secunderabad is ordered to be transferred to IV Metropolitan Magistrate Court, Hyderabad for trial and disposal according to law. The learned XI M.M. Secunderabad is directed to transmit the records in C.C. No. 1284/96 on his file to the Court of IV M.M., Hyderabad forthwith. The IV Metropolitan Magistrate, Hyderabad is directed to take the case on file and issue bailable warrantss against the respondents 1 and 2 hereinfor Rs.1,000/- each, for their appearance on a date to be fixed by him. The learned Magistrate is further directed to forward the said bailable warrants to the D.C.P. North Zone to get them executed on the respondents as the S.H.O., Bowenpally had not taken any interest in serving the summons issued earlier, on the respondents.