SADASHEO SURYABHANJI KUNBI Vs. EMPEROR

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The applicant has applied for transfer of a case started against him under Section 332, I. P. C from the Court of Mr. Gupta, Magistrate, First Class, Amraoti, on the ground that Mr. Gupta has already taken up a case against the applicant under Section 107, Criminal P. C., and that by the time the case under Section 332 comes up for judgment the case under Section 107 will have been decided. It is urged that it will not be possible for the Magistrate to forget the evidence in the case under Section 107 and that he will be thereby prejudiced.

(2.) THE reason given by the applicant seems to me to be particularly unconvincing, and the fact that a Magistrate is trying or has tried one case against an accused person is no reason why he should not try any subsequent case against the same person. No allegation of prejudice or unfair treatment has been made, and I would hold that the applicant cannot be under any reasonable apprehension that he will not get a fair and impartial trial. It has further been pointed out to me by the learned Standing Counsel that in the affidavit that has been filed by the applicant no ground for the transfer has been mentioned. The learned Counsel for the applicant in this connexion has referred to Emperor v. Bindeshri Singh (1906) 28 All 331 and has contended that Section 526(4), Criminal P.O., does not apply to an accused person. With all due respect however I am unable to accept this contention, and I prefer the view taken by the Lahore High Court in Ghulam Muhammad v. Emperor AIR 1922 Lah 113. In my opinion Section 526(4) is clear and every person, whether accused or not except, the Advocate-General, who makes an application under the section must support his application by an affidavit. It may be incidentally noted that the greater number of applications under this section are by accused persons and therefore if such persons were not bound to make an affidavit in respect of their applications, Section 526(4) would practically become a dead letter. I would further point out that Section 342(4), in my opinion, applies only to the conduct of trials and to the examination of the accused at the trial and does not apply to any proceeding outside the trial, such as an application to the High Court for transfer. I would also point out that, even accepting the view of the Allahabad High Court that an accused person could not be prosecuted under Section 193, I. P. C., for any false statement made in such an affidavit, Still, when an affidavit has been filed, the contents of the affidavit may surely be looked into by the Court, and, if the affidavit fails to support the application, Such fact must surely be taken into consideration.