STATE Vs. FIDA MOHAMAD

JUDGEMENT

(1.) THIS is an application submitted on behalf of the State with the request that the Criminal case, State V. Fida Mohd and Anr. be transferred from the Court of the Addl. District Magistrate Srinagar to that of the Addl. District Magistrate, Baramulla. It appears that this case was initially pending with the Addl. District Magistrate Srinagar, Mr. Abdul Qadir, who was later appointed as Addl. Sessions Judge, Srinagar. Mr. Qadir was succeeded by Mr. N. K. Hak as Addl. District Magistrate Srinagai. According to the applicant (State) the accused had claimed re-trial under Section 350, Criminal P. C. , and about twenty witnesses had to be rev" summoned and re-examined by Mr. Hak which entailed a huge expenditure to the Government. Mr. Hak proceeded with the case, finished prosecution evidence and even examined some defence witnesses when he was transferred to Baramulla. The present application has now been made with the request that the case be transferred to the court of the Addl. District Magistrate Baramulla (Mr. Hak), the ground for transfer being that with the transfer of Mr. Hak the accused may again claim a de novo trial before the Magistrate who has succeeded Mr. Hak which would again entail a great deal of inconvenience and expenditure to the prosecution and also delay very largely the disposal of the case which has been pending from a very long time.

(2.) THAT the accused has the right to claim de novo trial, cannot be denied. This also cannot be denied that by exercising this right the final disposal of this case may be delayed very largely and a great deal of inconvenience and expenditure may be caused so far as the prosecution is concerned. But can this be a valid ground for transfer of this case? It is true that it is desirable that a Magistrate who has heard the greater part of a case should conclude it, but this by itself should not be allowed to outweigh the prejudice and inconvenience likely to result to an accused by transfer of the Magistrate who had heard the case before his transfer to another district. In the present case it is obvious that a great deal of inconvenience and prejudice is bound to result to the accused as Well if the case is tried at Baramulla. The accused have engaged counsel at Srinagar and they may be very much handicapped in conducting their defence at Baramulla. It is true that convenience and expenditure are factors to be considered in the trial of a case, but it should be borne in mind that considerations of justice are even more important than these considerations and must prevail over the latter in matters of transfer. A similar view has been taken in Emperor v. Tarachand AIR 1935 Sind 197 (A ).

(3.) TAKING all this into consideration, I do not find myself inclined to agree that the ends of justice can be served only by transfer of this case from the court of the Addl. District Magistrate Srinagar to that of the Addl. District Magistrate Baramulla. This application for transfer is, therefore, rejected.