ANNUBEG MUKIMBEG MUSALMAN Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application Under Section 526, Criminal P.C., for transfer of sessions case No. 3 of 1944 from the file of Mr. S. A. Pande, Third Additional Sessions Judge, Nagpur, to the file of some other Judge. The relevant facts which led to the present application are briefly these. The Magistrate, First Class, Nagpur, committed the applicants-accused (Annubeg and Nanhoobeg) to stand their trial on a charge of murder before the Court of Session, Nagpur. The Sessions Judge by the order, dated 12th February 1944, transferred the case to the Third Additional Sessions Judge, Nagpur, for trial. Annubeg was represented by Mr. Belekar and Nanhoobeg by Mr. Imdad Ali. The trial commenced before the Third Additional Sessions Judge on 20th March 1944 with the aid of assessors. Pour persons were chosen to act as assessors. Sk. Kasam was one of the assessors chosen. He was absent on account of illness and had sent his servant with a letter addressed to the Court asking that his absence on account of his illness may be excused and also sent a medical certificate of Dr. A.F.W. da Costa. The servant was not entitled to act as an assessor and was subsequently permitted to withdraw from the case and the trial proceeded with the aid of three assessors as other assessors had already left the Court.

(2.) ON 20th March 1944 seven witnesses were examined for the prosecution: four of them were not cross-examined at all. Kesheo (P.W. 1), the Sub-Inspector of Police, and Mohamad Kasim (P.W. 1) were cross-examined by Mr. Imdad Ali and the cross-examination did not extend beyond four lines. Both counsel cross-examined Dr. Bhagwan, (P.W. 2) and the cross-examination by each counsel did not extend beyond six lines. On 21st March 1944 six witnesses were examined. Dr. Robert was the first witness. He was cross-examined by Mr. Imdad Ali and the cross-examination was directed to elicit facts giving the position of the assailant at the time the different wounds were caused on the deceased Rafiq. Premlal (P.W. 9) and Abdul Rashid (P.W. 10) were not cross-examined. Abdul Shakur (P.W. 11) was the father of the deceased. He was one of the prosecution eye-witnesses. His examination-in-chief extends to over three pages and a half while his cross-examination by both counsel covers less than two pages. Mahadeo (P.W. 12) was another eye-witness whose cross-examination by Mr. Imdad Ali extends to two lines and a half. The last witness Kazi Badruddin (P.W. 13) was cross-examined by both counsel and the cross-examination by Mr. Imdad Ali is longer than that of Mr. Belekar. The case was fixed for further evidence on 22nd March 1944. Before the trial commenced the accused asked for an adjournment in order to enable them to apply to the High Court for the transfer of the case. An adjournment was granted as prayed for.

(3.) THE learned Government pleader has placed before me for perusal the elaborate statement dated 5th April 1944 of the Additional Sessions Judge, Nagpur, in support of his action at the trial. The question is whether it is expedient in the interests of justice that the case should be transferred from the file of the Third Additional Sessions Judge to the file of some other Judge. One of the grounds for transfer is that the learned Additional Sessions Judge was in extreme hurry and that he did not even inquire about the identity of the persons who were competent to sit as assessors. Three of the persons were qualified to sit as assessors. As regards the fourth person the allegation of the applicants is that the fourth man wanted to file papers before the Judge but the Judge ordered him without listening to anything to come and take the chair. The man quietly obeyed. The Judge never asked any of the accused if they had any objection to the persons sitting as assessors. The fourth man was seen fidgetting in his chair. The learned Judge saw the nervousness of the fourth man and asked him as to what was the matter. He stood up and said that he wag merely the servant of the assessor Sk. Kasem and did not think he could sit there as an assessor and that he wanted to go as he had merely come to file medical certificate on behalf of his master. He was allowed to go and the case proceeded with only three assessors.