NIRMA Vs. STATE

JUDGEMENT

(1.) THIS is an application by three men, Nirma, Jango and Phurkhu, under Section 526, Cr. P. Code, for the transfer of a case pending against them for an offence under Section 435, I. P. C., in the Court of the Magistrate, 1st Class at Theog on the ground that they do not expect a fair and impartial trial at the hands of the said Magistrate.

(2.) THE allegations of the petitioners are that the Challan was submitted before the Court at about 6.15 p. m. on 11 5 1953, that the Magistrate took up the case immediately at that late hour despite the request of the petitioners to adjourn the case so as to have the opportunity of calling from Simla Sri K. C. Pandit Advocate to defend them; that a local pleader Sri B. D. Suri, whom the petitioners had to engage at the spur of the moment, did not have the requisite opportunity of preparing himself before the production of the prosecution evidence on that evening, and his oral request for a copy of the first information report, which he had had no opportunity of looking into, was rejected; that the case was adjourned late that evening to the following day in spite of protests of the petitioners that the aforesaid Advocate would not be able to attend owing to being engaged in a case in this Court; and that on 12 5 1.953 again the Magistrate framed a charge against them after turning down their request for the postponement of the case in order that they may have the opportunity of the aforesaid advocate addressing the Court before the framing of the charge.

(3.) SECONDLY , all that the learned Magistrate was required to do was to offer an explanation and not to produce evidence in support of the same. He was therefore not justified in sending along with his explanation a statement on oath of Sri B. D. Suri pleader Theog. It is not possible moreover to attach any value to the said statement of Sri B. D. Suri since it was recorded by the learned Magistrate in absence of the present petitioners. In future, the learned Magistrate should only submit his explanation and not oral evidence in support of his explanation unless specifically called for.