Jatinder Kumar vs Tilak Raj and Others

B.A. Khan, J.—The petitioner is the complainant in murder trial (Session file No. 39) pending before the Addl. Sessions Judge, Jammu. He

has filed this transfer application seeking transfer of the challan under Sections 302/307 RPC to the court of competent jurisdiction. The ground

taken is that on 15-7-1995, one prosecution witness, Tarsem Kumar was examined by the clerk of the court and his statement, ""shrouded in

mystery"" was brought on record. Petitioner's counsel, Mr. Sethi, also urged that once he had filed an application informing about his plans to move

for the transfer of the case, the trial Judge was bound to stay his hands off in terms of Sub-section (8) of Section 526 Cr. P.C. According to him,

the trial Judge had rejected the prayer on the spot and ordered that 'the prosecution is granted last opportunity to produce evidence' which he

could not do under law. He cited Superintendent and Remembrancer of Legal Affairs, West Bengal on behalf of State of West Bengal Vs. S.

Narayan Rao, in support to show that the word ""shall"" used in this sub-section indicated that requirement to adjourn the case was mandatory.

Mr. Bakhshi, learned counsel for. the accused, however, has invited my attention to various interim orders passed by the trial court to show how

the prosecution had lethargically produced its witnesses to prolong the trial. It transpires that the charge against the accused was framed as far

back as on 25-11-1993 and the first session for the prosecution evidence was fixed in December 1993. Ever since the prosecution had proceeded

on a snail's pace in leading its evidence. It has been repeatedly asked to take steps to expedite its evidence but that had fallen on deaf ears.

It is true that on 15-7-1995 the complainant filed an application expressing his intention to move a transfer application before this Court, but it

was admittedly not accompanied by any affidavit and or any bond as required under Sub-section (8) of Section 526 Cr. P.C. Therefore, it was

naturally rejected by the trial Judge on taking notice of the conduct of the prosecution which had left much to be desired. No one disputes that the

word ""shall"" occurring in the relevant sub-section should be construed to be mandatory but that by itself cannot be said to have any mechanical

application in cases of all types and to entitle a party to bring the trial to a grinding halt. It is for the applicant to show his bona fides and to satisfy

the trial court about his seriousness to move for the transfer by indicating the grounds he pro-poses to take, and accompanied by an affidavit and a

Bond as envisaged by Section 526(8). Otherwise it would be free for all and any party would stall the proceedings for his/her own ends. That

surely cannot be the intention and spirit behind Section 526(8). Moreover, Sub-section (9) empowers a Sessions Court to refuse adjournment if he

is of the opinion that an applicant had reasonable opportunity to move for transfer. A last minute half-hearted but precepitate move does not

disable the trial court from going ahead. The position is worse when a party's bona fides are found wanting. Any contrary interpretation would lead

to frivolous applications being filed before the trial courts to delay the trials and would result in denial of fundamental right of speedy justice to the

accused. There is no dearth of such instances where applications for transfer are filed and trials remain stalled for years on leading to denial of

justice to the accused in the process. The present case is no exception. Therefore, in the facts and circumstances of the case the trial Judge had

rightly rejected the petitioner's application with a view to expedite the trial.

Mr. Sethi has argued that being the complainant, petitioner had the locus to move the application seeking transfer of the trial. There is no dispute

about the locus or otherwise of the petitioner. What is at controversy is: whether his action was bona fide and whether the prosecution had done its

duty. The answer to both the questions is in the negative. The petitioner's approach in the matter was totally casual and he appeared to be

assuming the role of the prosecution ignoring that the accused had a right of speedy trial and that the prosecution had no complaint about the

conduct of the trial. Mr. Sethi's resort to technical crutches does not advance his case because procedural technicalities are only a handmaid to

facilitate doing of justice. The petitioner, whatever his locus, had all the time to move for transfer of the trial on some cogent ground if he had

genuinely entertained any apprehension of not getting justice at the hands of the trial Judge. But he seems to have resorted to this tactics on

apprehending that prosecution evidence was about to be closed. He cannot have the cake and eat it too by resorting to a dilatory tactics loaded to

deny speedy trial to the accused. Moreover, the grounds taken by him for seeking transfer are wholly frivolous and merit; rejection on the

threshold.

For the aforesaid reasons, I find no merit in this petition which is dismissed. It is, however, provided that statement of PW Tarsem Kumar shall

be rerecorded in presence of the parties after he is produced before the court by the prosecution on its own. The trial Judge shall be at liberty to

pass appropriate orders in law including closure of prosecution evidence in the facts and circumstances of the case. He shall fix the session

spreading over a period of four months from today to conclude the trial. Record shall be sent back forthwith.