HIGH COURT OF HIMACHAL PRADESH
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Chowdhry, J.C. -
(1.) This is an application by one Daulat Ram under Section 526, Criminal P. C., for the transfer of a case pending against him under Section 409, Penal Code, in the Court of Sri A.S. Bhatnagar, Magistrate, first class, Rampur Bushahr, district Mahasu, on the ground that a fair and impartial trial cannot be had in that Court. The petitioner has stated at the end of his application that if the case is transferred he will not claim a trial de novo.
(2.) The first information report consists of a letter dated 2-1-1951 addressed by the Chief Conservator of Forests Himachal Pradesh to the Senior Superintendent of Police Kasumpti. The Senior Superintendent of Police entrusted the investigation to a certain Inspector of Police and a charge-sheet against the petitioner was in due course submitted to the said Magistrate on 7- Daulat Ram vs. The State (20.08.1952 - HPHC) Page 1 of 5 The Magistrate summoned prosecution evidence for 6-4-1.951, and between the latter date and 22-6-1951 nine prosecution witnesses were examined. Thereafter, leaving out of account two adjournments occasioned by the unavoidable absence of the presiding officer, there were as many as ten adjournments during a period of seven months until 23-1-1952 at the instance of the prosecution on the ground that the opinion of the handwriting expert had not been received. On the last mentioned date the opinion in question was not filed (although it is dated 30-11-1951), but at the request of the P.S.I, prosecution evidence was ordered to be summoned for 7-2-1952. On 7-2-1952 the prosecution witnesses did not appear, and thereafter the presiding officer proceeded on six weeks leave on 11-2-1952. Before the prosecution could proceed any further the present application for transfer was filed on 3-7-1952 and the proceedings were stayed.
(3.) In the letter dated 2-1-1951 from the Chief Conservator of Forests to the Senior Superintendent of Police, referred to above as the first information report, it was mentioned that the permission of the Chief Commissioner had been obtained. No such permission was, however, filed in Court. As already stated, the charge-sheet was submitted to the Magistrate on 7-3-1951 and prosecution evidence was summoned for 6-4-1951. In between these dates the Magistrate addressed a letter on 27-3-1951 to the Chief Conservator of Forests, drawing his attention to the fact that sanction of the Chief Commissioner under Section 197, Criminal P. C., was necessary and that, although referred to in the first information report, the same had not been filed either by the addressee or by the police, and requesting the addressee to file the requisite sanction before 6-4-1951 as the case could not proceed unless it was on the file. In response to this letter the Secretary to the Chief Commissioner in the Forest Department sent a communication to the Magistrate on 30-3-1951, and enclosed therewith the requisite sanction of the Chief Commissioner under Section 197, Criminal P. C. It is noteworthy that this sanction is dated 30-3-1951 although it had been mentioned in the first information report dated 2-1-1951 that the permission of the Chief Commissioner had already been obtained. The first ground urged on behalf of the petitioner relates to this action taken by the Magistrate in securing the sanction of the Chief Commissioner. It may be stated in passing that the question of the necessity or legality of the sanction in question is quite irrelevant for the disposal of the present application. The argument put forward by the learned counsel for the petitioner was that in acting, as the learned Magistrate did, in order to secure the sanction he arrogated to himself the functions of a prosecutor. The explanation of the Magistrate is that since the evidence had already been summoned and the case could not proceed unless the sanction was on the file, he addressed the said letter to the Chief Conservator of Forests to avoid unnecessary harassment of the prosecution witnesses and the accused. And it was further argued in this connection by the learned Government Advocate that the objection taken on behalf of the petitioner is not tenable since there was already a reference to the sanction in the first information report. It was, however, conceded that the letter in question was sent by the Magistrate at his own instance and without any request in that behalf having been made to him by the prosecution. If the Magistrate considered the sanction necessary, the only proper course for him to Daulat Ram vs. The State adopt as a Court was not to take cognizance of the offence, as laid down in Section 197 of the Code. It was no business of his to try to fill up that lacuna in the prosecution. It is noteworthy that, although an incorrect allegation to the contrary had been made in the first information report, no sanction had in fact been obtained by the prosecution, and, for all one knows, it might not have been forthcoming but for the said action taken by the Magistrate himself. It may be that this action of the learned Magistrate is attributable to a misapprehension on his cart of the proper functions of a Court rather than to any bias in favour of the prosecution or against the accused. It may also be that no apprehensions of the accused were for the time being roused as regards the impartiality of the Court, for it was only a year and three months later that the present application for transfer was filed by him, but, when this action of the Magistrate is taken into consideration along with certain others, to be mentioned presently, the cumulative effect of them all was no doubt such as to raise a reasonable apprehension in his mind that a fair and impartial trial could not be had before the Magistrate in question.;
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