Inder Dev Dua - (1.) The petitioner, who is serving a sentence of 10 years rigorous imprisonment is also being proceeded against for an alleged offence under section 333/353/186, Indian Penal Code . The commitment proceedings are pending in the Court of Shri K. N. Joshi, Magistrate I Class, Delhi. The present application has been forwarded from District Jail, Hissar, where the petitioner is at present lodged as a convict. In this application he is described to be originally a resident of Amritsar and he seeks to have the commitment proceedings transferred to the Court of some other Magistrate. The grounds on which transfer is sought are that the petitioner has, on occasions, been pressurised by the learned Magistrate into making a confession and the Court is treating the accused as if he is a criminal though he is entitied to be presumed to be innocent till proved guilty. The learned Magistrate has also been described to be acting in accordance with the desire of the police authorities of Sabzi Mandi Police Station and not independently of them. The main grievance, however, as stated in the petition, is that he has not been given the documents to which he is lawfully entitled and the Medical Officer's statement and the site plan have been specifically mentioned to be the documents not supplied to him. The copies supplied have also been described not to be legible.
(2.) The petitioner's prayer for presence in this Court and for permission to argue the case personally was granted, but on his appearance, I felt that being a layman, he could not distinguish between grounds which would sustain a transfer application and those which are open only on appeals and revisions from impugned orders. In order to secure help to the petitioner, who said that the could not afford a counsel, I requested Shri Madan Bhatia, Advocate, a distinguished member of the bar, to assist the petitioner. Shri Bhatia very kindly agreed to do so and he has said all that could be said in support of the transfer application. To have a clear glimpse of the picture. I sent for the record of the case also and the same was, I am informed, inspected by Shri Bhatia.
(3.) Shri Bhatia has concentrated on a new argument not contained in the application forwarded by the accused-petitioner. This argument is based on a report bearing no date purporting to be prepared by Shri Tirath Ram Rukhra, Prosecuting Subinspector, in which after narrating the history of the proceedings before the learned Magistrate, it has been observed as follows : "Thus from the above facts, it is quite clear that delay in commencing the proceedings is due to the following factors:- 1, it was the duty of the police station to see that proper and complete copies are attached with the challen by the I.0., failing which it was the duty of P.S.I., (Shri P. Pasi) to mention this defect in the scrutiny memo, while checking the challen before forwarding the same, to the court for trial. 2. Secondly it was due to failure of the court of K. K. Sengupta M.I.C. to obtain the acknowledgement from the accused when the copies were allegedly given to them as stated in the order sheet dated 24-2-1968. 3. Thirdly, the delay is due to the lenient view taken by the Presiding Officer in entertaining objection raised by the accused. It is worth-mentioning that on the date of hearing accused Om Prakash appears in the court from Ambala Jail while co-accused Shakti Raj from Sangrur Jail where they are confined respectively. They wanted to linger on their stay in Delhi under one pretext or the other being life convicts. That is why they do not allow the court to proceed with the case and they try to pick up quarrel on lame excuses. Submitted please." This report is stated to have been enclosed with a covering D.O. letter dated 11-10-1968 written by the Deputy Inspector General of Police (Range) to the District Magistrate for taking suitable action because the proceedings were going on at snail's pace on account of the delaying tactics of the accused. It appears that this D.O. letter alongwith its enclosure was forwarded to the learned Magistrate. Shri Bhatia has submitted that being faced with the opinion of the Deputy Inspector General of Police based on the report the Prosecuting Sub-Inspector, which was conveyed to the District Magistrate, the learned Magistrate holding the commitment proceedings would, in all probability, commit the accused and not deal with the case with the requisite judicial impartiality and detachment. The Judiciary and the Executive not being separated in Delhi, according to Shri Bhatia, it requires special courage and judicial independence on the part of the learned Magistrate to remain uninfluenced by the impression of the District Magistrate and of the Deputy Inspector Generai of Police formed on the basis of the report of the P.S.I. According to him, the present is a fit case in which these proceedings should be transferred to some other competent Magistrate. In support of this plea of transfer, Shri Bhatia has relied on Mussadi Lal v. Emperor (1) , in which Tek Chand J. allowed the transfer application because of a reasonable belief on the part of the accused that they had by various acts of theirs incurred the displeasure of the District Magistrate and of the other local authorities. The further circumstances in the reported case was that the Superintendent of Police had conferred with the District- Magistrate with regard to their cases before the prosecutions were actually launched and the legal practitioners there had also evaded taking up cases of the accused. The facts of the reported case are thus not quite similar. The decision of the Patna High Court in Joti Narayan v. Brijnandan (2) cited for the purpose of suggesting that such a report may amount to contempt of Court, need not detain me because I am only concerned with the question of transfer of the case in these proceedings.;