AI Structured Summary
Not yet generated for this judgment
Judgment
1.Petitioner seeks quashment of order passed by the Chief Judicial Magistrate Jammu on 26.04.2018 in case titled State Vs. Jasvinder Singh and
ors. and transferring of the case to some other Court. Sr. P.O. on behalf of the State. Accused persons no. 1 & 2 are present alongwith their
counsel. Accused No.3 is exempted through counsel on whose behalf counsel is present. Nemo for the complainant. I have gone through the file
and have applied my mind into the present facts and circumstances of the case. The question arises whether the Ld. Counsel for the complainant
was justified in moving the application before the trial court or not. To my mind had the Ld. Counsel for the complainant any grievances against the
court, he ought to have moved the transfer application before the competent court and not before the trial court. Had some words spoken by the
accused no.1, to the counsel for the complainant, the counsel for the complainant ought to have moved an application under law for the remedy
available to him and was not justified in blaming the court. If the counsel of the applicant had threatened the accused and blatantly insinuated in the
open court that his wife is the girlfriend of the counsel and he will get him convicted in the case. To my mind it is baseless argument because had the
counsel for the applicant threatened the accused that his wife is the counsel’s girlfriend and he will get him convicted in the case and even if the
case would be transferred to some other court, the counsel will remain the same, if engaged. The reference to my mind is in-incompetent. The Ld.
Counsel for the accused has brought to the notice of the court that only two witnesses are yet to be examined including Pw3 and Pw9. Accordingly,
the trial court is directed to provide at the most two opportunities to the prosecution for leading its evidence in support of the case and if the
prosecution fails to adduce any evidence within the stipulated period, the trial court shall close the right of the prosecution to lead its evidence and
proceed further with the trial in accordance with law. Since, the trial has been fully conducted in the matter by the Ld. Passenger Tax Magistrate
Jammu, who is conversant with the facts of the case and the trial is at the stage of conclusion. In these circumstances it is not appropriate to transfer
the file from the court of Ld. Passenger Tax Magistrate, Jammu to any other court, as the same would caused inconvenience to the parties to the lis
as well. Thus, the file is transmitted back to the court of Ld. Spl. Mobile Magistrate Passenger Tax Shops and Establishment Act, Jammu for further
proceedings. The accused persons alongwith their counsel are directed to cause their appearance before the trial court on the next date of hearing.
The office to transmit the record of the file to the trial court well before the date fixed. An index be maintained in the office which shall be consigned
to records, after its due completion. Let the file be put up before the Ld. Spl. Mobile Magistrate Passenger Tax Shops and Establishment Act, Jammu
on 04.05.2018.â€Â         Â
The grounds raised in the petition for the quashment of the aforesaid order are as under:
a) That the learned Chief Judicial Magistrate failed to understand that the file was submitted before him in administrative capacity for transferring it to
some other court. Learned Passenger Tax court Judge is also experienced and capable enough to understand that the transfer application cannot be
filed before him and it is to be filed before the CJM only. He could also have understood that judicial propriety demands that he should not pass an
order against his own issuing warrants against witness in illegal manner.
b) That Chief Judicial Magistrate was to pass an administrative order only with respect to transfer of case. Without knowing the facts and even
pendency of above said application for granting time to witness and cancellation of warrants he could not have passed order for completing statement
within two dates. This order is illegal on the fact of it.
c) That the learned Chief Judicial Magistrate failed to understand that once there are allegations against a judge that he issue illegal warrants against
the witnesses throwing all cannons of law to dust, he cannot be expected to conduct trial in a fair manner in which the witness is father of the
complainant who has lost faith in the Court.
d) That the learned Chief Judicial Magistrate also failed to understand that if learned Passenger Tax Court holds that warrants issued against the
witness were illegal it would mean that he had done an illegal act because it is signed by him. So he should not have decided the application for
cancelation of warrants filed by petitioner and he again committed a mistake by calling objections to this application from accused in the case.
e) That most importantly the learned Chief Judicial Magistrate should have transferred the case when the trial court itself requested for the same.
f) That the learned CJM is not a court superior to Court of Passenger Tax court and he could not have issued directions regarding conducting the trial
in particular manner especially when he was not having knowledge about the proceedings going on in the trial or applications pending before the court.
g) That the learned Chief Judicial Magistrate failed to appreciate that learned Passenger Tax judge also joined this post few months ago and not even
a singly witness is recorded during his tenure and it is not the case that trial was conducted in his presence so there was no harm in transferring the
case to some other court.â€
I have heard learned counsel for the parties. I have also gone through the order impugned. Bare perusal of this order, it is evident that Spl. Mobile
Magistrate Passenger Tax Shops and Establishment Act, Jammu, made a reference to CJM, Jammu for transferring the case to some other court of
competent jurisdiction, on the grounds that it has been alleged by counsel for complainant that Presiding Officer has not taken note of some words
spoken by accused Jaswinder Singh to him during course of proceedings; that Presiding officer did not record the conduct of accused and also did not
warn him.
CJM, Jammu while disposing of the reference, remitted the case back to Passenger Tax Magistrate Jammu, on the ground that the Presiding
Officer is well conversant with the facts of the case and the trial is at the stage of conclusion.
As per counsel for petitioner, in a reference for request to transfer the case, CJM was not competent to direct the Court ofPassenger Tax
Magistrate Jammu, to provide at the most two opportunities to the prosecution for leading its evidence in support of the case and if the prosecution
fails to adduce any evidence within the stipulated period, the trial court shall close the right of the prosecution to lead its evidence and proceed further
with the trial in accordance with law.
I find force in this argument, because CJM was not dealing with case as appellate or revisional court; a limited prayer was made by reference court
to transfer the case to any other court. CJM was not competent to direct the Court of Spl. Mobile Magistrate Passenger Tax Shops and Establishment
Act, Jammu to grant two opportunities to prosecution to produce the evidence, and in case of failure, right to produce witnesses shall be closed.
This part of order passed by CJM was, thus, without any jurisdiction and the same is set aside accordingly. So far as prayer for transfer of case is
concerned, I do not find any ground to transfer the case to any other court.
In view of above, this petition is disposed of in the afore said terms. However, trial court is directed to give reasonable opportunity to prosecution to
produce witnesses.