AZIZ BAKSH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant accused is being tried in Criminal Case No. 76 of 1972 pendinp on the file of Judicial Magistrate First Class, Wani. When the case reached the stage of arguments, the applicant accused filed an application before the Sessions Judge, Yeotmal which-is the transfer application being numbered as Miscellaneous Criminal Case No. 36 of 1973 under Section 526 of the Criminal Procedure Code. The transfer application wag ultimately heard bv Shri P. V. Padhye. Additional Sessions Judge. Yeotmal who rejected it. Thereafter the applicant has moved this- Court with a prayer that his Criminal case be transferred. The facts of the Case are that applicant appeared as a witness in Criminal Case No. 61! of 1971 presumably aa a defence witness and Sub-Government Pleader Shri Kedar who is practising at Wani cross-examined him. It appears that the applicant ig an ex-serviceman. He is a Muslim by religion. He was allotted certain lands at village Pisgaon bv the Government and it is the allegation that he is the critic of Islam and he was delivering speeches against the practice prevailing in Muslim religion and as a result of this, the Muslims of Wani had gone against him. It is the allegation that Advocate Kedar, Advocate Nevalekar, Advocate Mardikar and one Babu Ambul-kar Advocate persuaded him to convert himself into Hinduism but he did not. agree. This is the background which we do not find in the application but is advanced at the Bar to show the general atmosphere in Wani town. It is seen that during the cross-examination bv Shri Kedar, he put a question to the applicant whether he had converted to Hinduism. The applicant was in the witness-box and the trial was proceeding. He was annov-ed and slapped Shri Kedar in the Court in the presence of the Court and the other persons. Shri Kedar filed a com-plaint with the Police. Ultimately a charge-sheet was filed under Section 332 against the accused and a Criminal case mentioned above was filed. It is seen and Shri Jaiswal was not able to enlighten as to how many witnesses were examined but it appears that the whole of the prosecution evidence was over. The witnesses were cross-examined bv the applicant and at no stage in the trial Court at any time he had alleged that he was not getting any assistance from the Bar Members or that he had sought anv assistance of the Bar Members to conduct this trial but nobody was willing to defend him. It appears that this ground was made for the first time before the Additional Sessions Judge before whom the transfer application was filed. This position is not disputed bv Shri Jaiswal. It is further seen that the applicant, when his case was pending before the learned Magistrate on 14-8-1973 for the argument sent a telegram that he was ill. The learned Magistrate did not entertain anv such telegram. He did not entertain the request communicated to him by telegram because generally the Courts do not entertain reauest of adiournment on the basis of the correspondence. However, the learned Judge in order to secure the accused's presence issued a bailable warrant and fixed 29-8-1973 to be the date of argument. On this date also the applicant was not present. Therefore, a non-bailable warrant was issued against him. It appears that bv post a medical certificate has been filed by the applicant expressing his inability due to illness to attend the Court. We further find from the allegations made in the application of transfer before the Additional Sessions Judge that the applicant was present in the Court on 8-91973 and on that date he was directed bv the learned Magistrate to argue his case on 12-9-1973. From the recitals of his own application for transfer it is therefore, clear that till this date he did not brine it to the notice of the learned Judge that he wanted a legal assistance even for arguing his case. There is nothing on record to come to that conclusion. Thereafter it appears that he filed the present application raisin? two grounds; one is that he did not get legal assistance; the other was that the Magistrate was prejudiced against the applicant because he had issued bailable as well as non-bailable warrants against him. The third ground adduced before me bv Shri Jaiswal in additional to these two grounds wag that the atmosphere of whole town of Wani which is a small town is surcharged with the feelings against the accused. Under such circumstances, the Magistrate would not be free from that prejudice prevailing in the town and. therefore, the applicant would not get a fair and impartial trial at the hands ol the Magistrate.

(2.) THE learned Additional Sessions Judge rejected the two grounds stated above on the ground that no complaint was ever made that legal assistance was required by the applicant and was not made available to him. He rejected the contention that the Magistrate was biased against the applicant.

(3.) FEELING aggrieved, this transfer application has been preferred. I have already stated the contentions raised before me by Shri Jaiswal. It pnpears that this matter was admitted bv my learned brother Masodkar, J. He had issued a notice to the Bar Council of Maharashtra because there was an allegation before him that the Advocates of Wani were not ready to accept the brief of the addlicant to defend him before the Magistrate and today the President of the Bar Council of Maharashtra Shri Manohar through the Additional Government Pleader submitted a letter that on enquiry from the Advocates at Wani he found that the applicant never approached any of the Advocates for legal assistance.