JATINDER KUMAR Vs. TILAK RAJ

JUDGEMENT

(1.) ORDER :- The petitioner is the complainant in murder trial (Session file No. 39) pending before the Addl. Sessions Judge, Jammu. He has filed this transfer application seeking transfer of the challan under Sections 302/307 RPC to the court of competent jurisdiction. The ground taken is that on 15-7-1995, one prosecution witness, Tarsem Kumar was examined by the clerk of the court and his statement, "shrouded in mystery" was brought on record. Petitioner's counsel, Mr. Sethi, also urged that once he had filed an application informing about his plans to move for the transfer of the case, the trial Judge was bound to stay his hands off in terms of sub-Sec. (8) of Sec. 526 Cr. P.C. According to him, the trial Judge had rejected the prayer on the spot and ordered that 'the prosecution is granted last opportunity to produce evidence' which he could not do under law. He cited AIR 1968 Cal 512 : (1968 Cri LJ 1396) in support to show that the word "shall" used in this sub-Section indicated that requirement to adjourn the case was mandatory.

(2.) Mr. Bakhshi, learned counsel for the accused, however, has invited my attention to various interim orders passed by the trial court to show how the prosecution had lethargically produced its witnesses to prolong the trial. It transpires that the charge against the accused was framed as far back as on 25-11-1993 and the first session for the prosecution evidence was fixed in December 1993. Ever since the prosecution had proceeded on a snail's pace in leading its evidence. It has been repeatedly asked to take steps to expedite its evidence but that had fallen on deaf ears.

(3.) It is true that on 15-7-1995 the complainant filed an application expressing his intention to move a transfer application before this Court but it was admittedly not accompanied by any affidavit and-or any bond as required under sub-Sec. (8) of Sec. 526 Cr. P.C. Therefore, it was naturally rejected by the trial Judge on taking notice of the conduct of the prosecution which had left much to be desired. No one disputes that the word "shall" occurring in the relevant sub-Section should be construed to be mandatory but that by itself cannot be said to have any mechanical application in cases of all types and to entitle a party to bring the trial to a grinding halt. It is for the applicant to show his bona fides and to satisfy the trial court about his seriousness to move for the transfer by indicating the grounds he proposes to take, and accompanied by an affidavit and a Bond as envisaged by Sec. 526(8). Otherwise it would be free for all and any party would stall the proceedings for his/her own ends. That surely cannot be the intention and spirit behind Sec. 526(8). Moreover, sub-Sec. (9) empowers a Sessions Court to refuse adjournment if he is of the opinion that an applicant had reasonable opportunity to move for transfer. A last minute half-hearted but precipitate move does not disable the trial court from going ahead. The position is worse when a party's bona fides are found wanting. Any contrary interpretation would lead to frivolous applications being filed before the trial courts to delay the trials and would result in denial of fundamental right of speedy justice to the accused. There is no dearth of such instances where applications for transfer are filed and trials remain stalled for years on leading to denial of justice to the accused in the process. The present case is no exception. Therefore in the facts and circumstances of the case the trial Judge had rightly rejected the petitioner's application with a view to expedite the trial.