GHULAM NABI SHAIDA Vs. CHANDAN MITRA
HIGH COURT OF JAMMU AND KASHMIR
Ghulam Nabi Shaida
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(1.) B .A. Khan, C.J. (A)
1. Whether an application filed before the Chief Justice seeking transfer of a transfer application from Jammu Wing of the Court to Srinagar Wing is a 'case' within the meaning of that word and whether the Chief Justice enjoys the power to transfer such an application from one wing of the High Court to the other is the issue arising from preliminary objections raised by respondents.
(2.) RESPONDENTS are facing criminal complaint under Sections 500 and 506B RPC pending before II Additional Munsiff, Judicial Magistrate, 1st Class, Srinagar for allegedly publishing a false story in the daily Poineer, New Delhi under the title 'The tip of jihadi iceberg'. After the Magistrate took cognizance of the offences on this complaint, respondents moved a transfer application No. 19/2005 in Jammu Wing of this Court seeking transfer of the complaint from Judicial Magistrate, Srinagar to Judicial Magistrate at Jammu. While this transfer application was pending at Jammu, the petitioner (complainant in the criminal complaint) filed the present application for transfer of this transfer application from Jammu Wing of the Court to Srinagar Wing on variety of grounds and reasons.
Respondents are contesting this application seeking transfer of their transfer application from Jammu Wing to Srinagar Wing. Their counsel have raised preliminary objections viz. (i) that the Chief Justice was not empowered to transfer a case from Jammu Wing to Srinagar Wing; and (ii) that, in any case, the Chief Justice enjoyed no power to transfer the application (transfer application) from one Wing to the other Wing of the Court which was not a 'case' liable to be transferred.
(3.) THE first issue would not detain us because it is no more res Integra, The Chief Justice enjoys the requisite power to transfer a 'case' from one Wing to the other Wing of the Court and vice -versa on the strength of power conferred on him by Rule 23 of Jammu and Kashmir High Court Rules, 1999 (new Rules) corresponding to old Rule 8 of the J&K; High Court Rules, 1975. The legal position in this regard stands already settled by a Division Bench judgment of this Court in H.S. Rainal v. Union of India 1994 KLJ 304, holding broadly that the Chief Justice possesses the power to transfer cases from one Wing of the High Court to the other in terms of powers conferred on him under Rule 8 (old Rules) corresponding to new Rule 23 of the High Court Rules, and also holding specifically as under: Under Chapter III as also under Chapter V of the Rules of the Court especially under Rule 8, the Chief Justice has the power to allot work to the Judges. The 'allotment of work' includes work allotted to the Judges sitting at Srinagar and the Judges sitting at Jammu. Work available at Srinagar may be allotted to the Judges sitting at Jammu and vice -versa. It is true that the word 'transfer' has not been used either in the Constitution or the Rules of the Court, the fact remains that the Chief Justice has been empowered to allot work to Judges and to specify the cases which would be heard by them. Thus, as pointed out earlier, 'allotment' would also include shifting of cases from Srinagar and allotting them to Judges at Jammu. Usually, transfer of a case envisages transfer from one Court to another. Since the High Court is one indivisible Court with two places of sitting, there cannot be a 'transfer of case' in the strict sense of the word. Nevertheless, Chief Justice can suo -moto or on the application of a litigant decide as to which case would be heard by which Judge and at what place of sitting.Since the Chief Justice has the administrative power apart from his powers on the judicial side, and since he has to run a big institution which is an ever growing institution, he had to be conferred with wide powers as had been done under Constitution as also under the Rules of the Court. Wide amplitude has to be conceded to the Chief Justice or else, it would hamper the proper running of the institution which, in its turn, would adversely affect the course of justice and the interest of litigants for whose benefit the Courts have been created.;
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