HARSARUP DASS Vs. PHUL CHAND

JUDGEMENT

(1.) THIS is an application under Section 526 of the Criminal Procedure Code and the prayer is for the transfer of proceedings from the Court of the Sub-Divisional Magistrate, Nalagarh. to any other competent Court outside Simla District. Harsarup Dass is the applicant and he has alleged that his wife Srimati Rukmani Devi lumped into a well on the night on 9th June. 1971 as she committed suicide. The first postmortem examination on the body was performed on 10-6-71. There was a stir in the town and processions were organised. There was demonstration against the applicant who was suspected to be a murderer. As a result to all that, the District Medical Officer was summoned from Simla and he performed another post mortem examination on 11-6-71. The Police was investigating the case, but the District Magistrate Simla, chose to entrust the enquiry to the Sub-Divisional Magistrate. Kandaghat, under Section 176. Criminal Procedure Code, This Magistrate reached Nalagarh on 24-6-71 and did local inspection on 27-6-71. Thereafter he fixed 5-7-71 as the date for evidence. The case was again adjourned to 9-7-71. The learned Magistrate made an order that lawyers should not appear on behalf of parties. This he presumably did to safeguard the law and order situation. The respondents 1 to 6. who are residents of Nalagarh, went in revision before the District Magistrate, Simla, and on 14-7-71 the District Magistrate. Simla, observing that the Sub-Divisional Magistrate Nala-Barh who was on leave had by then returned from leave, entrusted the enquiry to him. Against that order of the District Magistrate, Simla this transfer application under Section 526. Criminal Procedure Code, has been preferred by the applicant Harsarup Dass.

(2.) IT is alleged in the application that before ordering for transfer, the District Magistrate did not issue a notice to the applicant to contest the transfer application. It is further contended that the comments of the Sub-Divisional Magistrate, Kandaghat, were not asked for. The S. D. M. Nalagarh before whom the proceeding was taken UP on 18-7-71 granted the applicant a very short time for filing revision. The S. D. M. Nalagarh did not permit the applicant to cross-examine the witnesses upon their previous statements which they made before the Police. The applicant wanted to go in revision against that order, but instead he filed the present transfer application because, according to him. the Sessions Judge, Simla, was not available in his Court so that the petition could be filed before him. According to applicant, the atmosphere at Nalagarh was disturbed and he would not get a fair and impartial enquiry at that place. The applicant and his witnesses are being threatened and the applicant's counsel whom he had summoned from Ruper because the local counsel have all been engaged by the respondents. is also being threatened by the respondents. The S. D. M. Nalagarh may be a witness in the trial. For these reasons. the transfer of the enquiry has been solicited to any Court outside Simla District. The respondents 1 to 6 have contested the application and their allegations are, that the atmosphere how at Nalagarh is calm and quiet. The public wanted a fair and impartial investigation. The Police was attempting the hush-up the matter. Since a Magisterial enquiry under Section 176. Criminal Procedure Code has been set up. there is no reason why it should not proceed in a peaceful atmosphere. It is then asserted that the application under Section 526. Criminal Procedure Code is not maintainable and no order of transfer need be made under Article 227 of the Constitution or under Section 561-A of the Criminal Procedure Code.

(3.) IT has been urged, rather strenuously, by the learned, counsel for the respondents 1 to 6 that the Magistrate holding enquiry under Section 176. Criminal Procedure Code, cannot be construed to be a Criminal Court so as to attract the provisions of Section 526 of that Code. It is then required to ascertain what are the essential features to constitute a Court as distinguished from any other authority. The case which comes very near the present one is reported in AIR 1958 Pun 141 Piara Singh v. The State. Their Lordships were considering whether a magistrate holding enquiry under Section 176 of the Code, can be considered a Court for purposes of Section 3 of the Contempt of Courts Act. In that connection, they considered the Supreme Court judgment reported in and imported the following observations: