DHARMA RAM Vs. RAM KARAN AND THE STATE

JUDGEMENT

(1.) THIS is a criminal revision application directed against the order of the Sessions judge, Jodhpur, dated the 27th November, 1968, whereby he ordered the transfer of a case from the Court of the Munsiff-Magistrate, Bilara, to the Court of the munsiff-Magistrate, Jodhpur District

(2.) THE criminal case, out of which the present revision-application arises, has had a chequered career. The case was initiated at the instance of the police on the 18th November, 1965, before the Munsiff-Magistrate, Bilara. The allegations were that the accused Dharma caught hold of the breasts of Mst. Gomati in a field where this woman was working at about noon on the 15th September, 1965. The learned Munsiff-Magistrate Bilara convicted the accussed under Section 354, I. P. C. but gave him the benefit of the provisions of the Probation of Offenders Act by merely admonishing him The husband of Mst. Gomati preferred an appeal in the court of the learned Sessions Judge, Jodhpur. After treating the appeal as a revision application under Section 11 of the Probation of Offenders Act the learned sessions Judge set aside the judgment of the Munsiff Magistrate and directed him to comply with the provisions of Section 6 of the said Act. When the case was sent back to the Munsiff-Magistrate. Bilara, the learned magistrate on the 8th June, 1967 recorded the statement of the defence witness pancharam about the age of the accused and came to the conclusion that he was above 21 years of age but as he had no previous conviction and the District probation Officer had also not made any adverse comments against the accused, he gave him the benefit of Section 3 of the probation of Offenders Act and merely admonished him. This order was again assailed by the husband of Mst. Gomati, and the learned Additional Sessions Judge No. 2, Jodhpur, in his order dated the 14th June, 1968, held that the order of the learned Munsiff-Magistrate Bilara was not a full-fiedged judgment as envisaged by the Code of Criminal Procedure and, therefore, he set aside that order and asked the learned Munsiff-Magistrate Bilara to hear the parties and write a judgment afresh. Mst. Gomati's husband continued to be dissatisfied and he preferred a transfer application in the Court of the learned Sessions Judge, Jodhpur, asking for the transfer of the case under Section 354, I. P. C. pending before the Munsiff-Magistrate Bilara to some other Court on the ground that the learned Magistrate had already expressed his opinion on the circumstances of the case. This application for transfer was accepted and this is how the case was then transferred to the Munsiff-Magistrate, Jodhpur District, for being heard.

(3.) THE learned counsel appearing for the applicant has raised certain interesting questions on behalf of the accused applicant. His first submission is that it is only when a case is pending for an inquiry or trial that a transfer can be ordered under section 528, Criminal P. C. All that remained to be done in this case was to write a judgment as required by Section 367, Criminal P. C. and it was no stage for transferring the case. He placed his reliance on Murugappa Thevan v. Emperor, air 1936 Mad 163. His second submission is that even if a transfer at this stage is permissible under Section 528, Criminal P. C. , the original case having been initiated by the police, the husband of the victim Mst. Gomati had no locus standi to present a transfer application. In support of his submission, he relied on Ahmed moideen v. Inspector, 'd' Division, AIR 1959 Mad 261. Lastly, he argued that there was no justification for the learned Sessions Judge to hold that the ends of justice require the transference of this case because prima facie it is going to cause undue inconvenience to the accused as he will have to engage another counsel if the case is heard at Jodhpur.