- (1.)This is a petition under Section 526 of the Code of Criminal Procedure by the State for transfer of Sessions Cases 43/8/63 and 1/8/64 from the file of the court of Session Raichur, to any other Sessions Court. These two sessions cases are said to be in the nature of a case and a counter-case and were therefore being posted together with a certain interval. The circumstances leading to the filing of this transfer petition relate however only to what happened at the trial of Sessions Case No. 43/8/63.
(2.)Although what may be called pleadings in this case have been long and argumentative, the facts which are really germane to the disposal of this petition and the controversies relating thereto fall within very small compass. A decision on the truth or otherwise of those facts and their relevancy to the prayer or legal value from the point of view of Section 526 of the Code of Criminal Procedure will conclude this petition one way or the other. I do not therefore propose to deal with or refer to other matters except when reference to them is necessary for the disposal of the principal controversy.
(3.)Sessions Case No. 43/8/63 was taken up for trial on 24th November 1965, charges were framed and pleas of the accused recorded. As the Public Prosecutor was not quit well to go on with that case that day, it was adjourned to the following day at his request. On that day, i.e., 25th November 1965, one formal witness was examined after which examination of an eyewitness was taken up. Chief examination of that witness was concluded early on the next day, i.e., 26th November 1965. Cross-examination was then commenced on behalf of accused Nos. 1 to 5 by Mr. Manzural Hassan and continued until about 1 O'clock when he sought and obtained permission of the court to attend to Friday prayers. Whether and if so, at what time he returned before the court rose for midday recess I shall consider at a later stage. During the recess the Public Prosecutor Mr. Mahadevappa appears to have been the Judge in his chambers and complained to him about the intervention of the Judge in the course of the Cross-examination of the witness by Mr. Manzural Hassan. According to the affidavit now filed by the Public Prosecutor in support of this petition that intervention was by way of putting questions at considerable length by the court itself without a note being made to the effect that they were court questions. The affidavit contains the following sentence descriptive of that complaint:
"The defence counsel Mr. Manzural Hassan, Advocate, began cross-examining P.W. 2 and in the course of cross-examination, the trial Judge went on putting questions to a considerable length to the witnesses without making proper note in the deposition sheet as to 'Court Questions."
It has been stated that the Judge assured Public Prosecutor that he would not put questions to the witnesses without nothing that they were 'Court Questions'. Nevertheless it is complained that the Judge achieved almost the same result by suggesting questions to the cross-examining Counsel and getting them put to the witnesses. At about 4 in the afternoon, the Public Prosecutor states, that a request by him for adjournment to enable him to attend to some cases in the Munsiff's Court was refused and the examination of the witness continued and concluded at 6 P.M. the Court sitting for nearly an hour after the usual Court hours. The next morning, i.e., on 27th November 1965 the Public Prosecutor made an alienation to the Court stating that he intends to move the High Court for transfer of the case under Section 523 of the Code of Criminal Procedure and prayed that reasonable time may be given to enable the prosecution to obtain orders from the High Court. This was treated as an application for adjournment and was rejected by the Judge after pronouncing a lengthy order in which he set out the circumstances purporting to make out that it was an attempt to prolong the proceedings. It concluded with the sentence. 'In the circumstances, the adjournment of the trial is refused'. Thereafter, the next witness P.W.3 was put into the box and his examination continued and concluded. Though the time occupied by the examination of this witness is not stated in any one of the long affidavits or the long report filed by the Judge it appears to me by looking into the original papers that it would not have been concluded before 4.30 or 5 that evening. After the conclusion of the examination of P.W. 3 the Judge made a second order on the Public Prosecutor's application which reads as follows:
"After this order, P.W. 3 is examined. On a second thought and in view of the mandatory provisions of Section 526 of the Code of Criminal Procedure, I find that I cannot avail of sub-section (9) and whatever the inconvenience and costs may be, I am bound to adjourn the case for such period as would afford sufficient time for a transfer application to be made and an order to be obtained thereon. Two weeks time is granted for the said purpose and the case stands adjourned."