IN RE: ABDUL NASEER; EMPEROR Vs. GHULAM

JUDGEMENT

(1.) This is an application by Abdul Naseer for the transfer of Criminal Case No. 575 of 1936 - K.E. V/s. Ghulam and Anr. - which is pending in the Court of Mr. P.C. Misra, Magistrate, First Class, Cawnpore, to any other Court. The chief ground on which the transfer is sought is that the learned Magistrate did not allow the Prosecuting Inspector to put certain questions in re-examination to the complainant who was examined as one of the witnesses for the prosecution. The learned Magistrate has given reasons in detail for disallowing the questions. The chief reason was that the question which the Prosecuting Inspector wished to put to the witness had not arisen from any ambiguity in any answer in the cross- examination. The witness it appears had made-some damaging admissions which the Prosecuting Inspector wished to get over and consequently he wished to put certain questions which did not arise from the cross-examination. The learned Magistrate was quite justified in disallowing suck questions. Thereafter it appears that a friction arose between the Prosecuting Inspector and the learned Magistrate and on account of it this application for transfer has been made. The learned Magistrate has noted some observations as regards the demeanour of the witness which go against his credibility. This fact by itself is not sufficient to show that there will be no impartial or fair trial.

(2.) A preliminary objection was taken by the learned Counsel for the accused that the applicant had no locus standi to make an application for the transfer of the case. The applicant had lodged a complaint with the police. The case has been started on the complaint by the police. Before the amendment in Section 526, Criminal P.C., there might have been some room for doubt on this point as the words used in Clause (8) in the section were "The Public Prosecutor, the complainant or the accused." Clause (3) lays down: The High Court may Act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.

(3.) It therefore provided for an application being made by a party interested to the High Court for the transfer of a case. Clause (8), as amended, is as follows: If, in the course of any inquiry or trial, or before the commencement of the hearing of any appeal, the Public Prosecutor, the complainant or the accused notifies to the Court before which the case or appeal is pending his intention to make an application under this section in respect of such case or appeal, the Court shall adjourn the case or postpone the appeal for such a period as will afford a reasonable time for the application to be made and an order to be obtained thereon.