SHARAB CHHONZAM Vs. SURAJ MANI

JUDGEMENT

(1.) THIS is an application for transfer of a criminal complaint case,under Section 526 Cr. PC from the Court of Magistrate First Class, Booh, District Kinnaur, to some other competent Magistrate, for trial. As revealed from the application, the grounds of transfer are, that the learned Magistrate has not given opportunity to the accused petitioner Shrimati Sharab Chhonzam for engaging a counsel to defend her; that no lawyer is practising at Pooh and she has to bring a lawyer from Kalpa or Rampur; that while on tour, the learned Magistrate stays with the complainant at village Rib-b'a and receives presents from her; that all the witnesses belong to Ribba which is near Kalpa as compared to Pooh and that the case for these reasons need be transferred from Pooh to Kalpa. The petition was formerly moved before the learned Sessions Judge, Mahasu who sent for the comments of the Magistrate concerned. The comments which arrived indicated that Smt. Sharab Chhonzam was adopting delaying tactics and that sufficient opportunity was given to her to engage a counsel. According to the learned Magistrate, the transfer is being sought on flase and flimsy grounds. The learned Magistrate rather expressed in strong terms that the allegations of his stay at the complainant's house and of receiving presents from her are "white lie" and are "totally false and malicious. " However the learned Magistrate indicated that he "would have no objection if the case is transferred from his court.

(2.) THE learned Sessions Judge after receiving such a report from the learned Magistrate dismissed the transfer application. The accused-petitioner has now come up in this Court with a similar petition and for a similar request.

(3.) I have heard the learned Counsel and I have also perused the report that was received from the learned Magistrate. No doubt he has expressed in strong language, inasmuch as the allegations regarding his stay at the house of the complainant and his having received presents from her have been considered "white lie" and "totally false and malicious. " It is quite obvious that these were personal charges levelled against the Magistrate and if he took exception to such charges and expressed his disapproval in strong language, that by itself would not go to indicate that he is prejudiced against the accused. Stray observations made by a court of justice cannot form the basis of any successful transfer application. Strong observations are often made to substantiate argument and to establish bona fides In a case of this nature where oersonal allegations are made, a little more emphasis in the language was likely to be given to deny the allegations. Therefore, to say that the learned Magistrate has ' entered into an arena of controversy would not be correct. The allegation of personal visit to the house of the complainant, and of having received presents from her. if not correct, did require a strong language for denial. The learned Magistrate has done this to safeguard his position. From this it cannot be inferred that he has developed a bias against the accused-petitioner, or that he would permit the balance of justice to tilt against the accused because of any such extraneous reasons. (See 1968 DLT 226, Vishwanath v. Nemo)