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Hira Singh v. State
Analytical Summary of the Opinion — Transfer Application
Factual and Procedural Background
This opinion concerns a second application by the applicants seeking transfer of a criminal case from the court of Magistrate Kumari Bimla Goel. The applicants relied principally on the contention that the magistrate had initially granted exemption from personal attendance to Shrimati Parvati (applicant no. 2) but later cancelled that exemption, causing the applicants to apprehend that they would not obtain fair trial in her court. The applicants had previously applied for transfer in this same matter; an earlier order by Gurtu, J., dated 3 September 1952, had transferred the case from another magistrate on grounds that included the possibility that cancellation of exemption may have raised apprehension and that a non-bailable warrant had been unjustifiably issued.
In the present proceedings, the affidavit in support of the transfer asserted that the complainant's counsel had moved to enforce the attendance of applicant no. 2 on the date prosecution witnesses were to be examined. The record also shows that applicant no. 2 failed to attend on 11 June 1953 when required; the magistrate directed production of a medical certificate and an affidavit and adjourned the matter to 15 June 1953, awarding Rs.10 as costs to the complainant. On 15 June 1953 the magistrate gave the applicants three weeks' time to move this Court for transfer (the order was not conditional). The applicants also alleged harassment arising from being summoned twice in two different courts after the earlier transfer order.
Legal Issues Presented
- Whether the cancellation of an order exempting a pardahnashin accused (applicant no. 2) from personal attendance by the magistrate gives rise to a reasonable apprehension that the applicants will not receive justice in that court and, therefore, justifies transfer.
- Whether the magistrate's actions in relation to adjournment and proceedings under section 526(8) of the Criminal Procedure Code — specifically, not adjourning the case when the applicants communicated their intention to move the Court for transfer — created a reasonable apprehension warranting transfer.
- Whether alleged harassment caused by the applicants being summoned twice in two different courts after the earlier order of transfer constitutes grounds for transfer from the present magistrate's court.
- Whether the case presents a question of law fit for the grant of a certificate under Article 134(1)(c) of the Constitution to appeal to the Supreme Court.
Arguments of the Parties
Applicants' Arguments
- The cancellation by Magistrate Kumari Bimla Goel of the earlier order exempting Shrimati Parvati from personal attendance raised a reasonable apprehension in the applicants' minds that they would not obtain justice in her court.
- Reliance on an earlier order of Gurtu, J. (3 September 1952) which had transferred the case from a prior magistrate partly on grounds related to cancellation of exemption and the purported unjustified issue of a non-bailable warrant; counsel invited the court to treat the present circumstances similarly.
- Counsel cited three decisions of this Court (including Rahim Bibi; Mt. Tirbeni v. Mst. Bhagwati; and Bhajan Lal v. Emperor) to support submission that pardahnashin ladies should ordinarily be exempted from personal attendance unless a strong prima facie case is made out, and that conduct of the magistrate in cancelling exemption might justify transfer in appropriate circumstances.
- The magistrate's alleged failure to adjourn under section 526(8) after applicants informed her of their intention to move for transfer was said to raise apprehension of unfairness.
- Applicants contended that having been summoned twice unnecessarily in two different courts after the earlier transfer order amounted to harassment justifying transfer.
- Counsel asked for a certificate under Article 134(1)(c) that the case was fit for appeal to the Supreme Court.
The opinion does not contain a detailed account of the complainant's or State's counter-arguments in these proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rahim Bibi (referred to as — '6 All 59 (A)') | That ordinarily exemption from personal attendance should be granted to a 'pardahnashin' lady unless a strong prima facie case is made out against her. | The Court observed this principle but held the case relied upon was not applicable here because the present proceeding is a transfer application (not a revision against cancellation of exemption), and thus the precedent did not govern the present context. |
| Mt. Tirbeni v. Mst. Bhagwati, AIR 1927 All 149 | Similarly supports the general proposition that pardahnashin ladies should ordinarily be exempted from personal attendance absent a strong prima facie case. | The Court noted the same limitation as with Rahim Bibi: these authorities arose in revision proceedings and therefore were not directly applicable to a transfer application such as the present one. |
| Bhajan Lal v. Emperor, AIR 1947 All 13 | Consideration of whether facts (including allegations of favouritism by a magistrate and issue of non-bailable warrants) could justify a reasonable apprehension that accused would not get justice. | The Court found that the Bhajan Lal judgment did not disclose clearly the other facts that led that Judge to conclude there was a reasonable apprehension; consequently the present Court could not apply Bhajan Lal to the facts before it. |
| Order of Gurtu, J., dated 3 September 1952 (same case) | Served as a prior judicial order in the same matter; observed that cancellation of exemption "may raise an apprehension" and also noted issue of a non-bailable warrant as ground for transfer from an earlier magistrate. | The Court distinguished Gurtu, J.'s order: Gurtu, J. had not found a clear reasonable apprehension (only that one "may" arise). The present Court confined itself to the circumstances of the current application and did not treat the earlier order as determining that a reasonable apprehension in fact existed. |
Court's Reasoning and Analysis
The Court proceeded by analysing each ground advanced for transfer strictly on the materials before it.
On the principal ground — cancellation of exemption under section 205 of the Criminal Procedure Code — the Court emphasised that section 205 vests a judicial discretion in a magistrate to grant exemption from personal attendance and to withdraw it when justified. The Court observed that the mere fact of cancellation cannot automatically support a transfer application: if the magistrate cancels exemption on sufficient grounds, no reasonable apprehension should arise. Conversely, if exemption were withdrawn without proper reasons, a reasonable apprehension might be justified. The Court therefore set the governing standard: the question of apprehension must be judged by whether the order cancelling the exemption was proper and a bona fide exercise of judicial discretion or was arbitrary or improper.
Applying that standard, the Court reviewed the affidavit and facts before it. It noted that the complainant's counsel had indicated that applicant no. 2's presence might be necessary when prosecution witnesses were examined (for example, for identification). The affidavit did not show that applicant no. 2's presence was not necessary on the particular date for which attendance was enforced. In the absence of any material showing that the cancellation was improper, the Court held the cancellation could not be a ground for transfer.
The Court addressed the authorities relied upon by counsel (the two pardahnashin cases and Bhajan Lal) and distinguished them on the basis of their facts or procedural posture: the two pardahnashin decisions arose in revision proceedings against cancellation orders and were not directly applicable to a transfer application; Bhajan Lal contained other facts (including alleged favouritism and issuance of non-bailable warrants) that were not clearly set out and therefore could not be applied to the present record.
Turning to the second ground (alleged failure to adjourn under section 526(8)), the Court recited the facts: applicant no. 2 failed to attend on 11 June 1953; the magistrate required medical evidence and an affidavit and adjourned to 15 June 1953 for explanation, awarding Rs.10 costs to the complainant. On 15 June 1953 the magistrate granted three weeks' time to the applicants to move this Court for transfer (the order was not conditional). The Court concluded that the magistrate's actions in seeking an explanation and granting time to move the Court did not justify a finding of unfairness or apprehension.
As to the harassment claim (summons twice in two different courts after Gurtu, J.'s order), the Court found no material to show that such harassment was the result of any act by the present magistrate or that the enforcement of attendance was a deliberate act by district authorities to harass the applicants.
Finally, having considered all grounds, the Court found no basis to transfer the case from the magistrate's court and was not persuaded to grant a certificate under Article 134(1)(c) for a Supreme Court appeal because no substantial question of law arose from the application.
Holding and Implications
DISMISSED. The transfer application was dismissed and the case is to remain in the court of Magistrate Kumari Bimla Goel.
Implications:
- The Court held that cancellation of exemption under section 205 CrPC, by itself, does not automatically justify transfer; the propriety of the cancellation and whether it was a judicial exercise of discretion must be judged on the record.
- The Court found that the magistrate's demand for medical evidence, adjournment and the award of costs were not improper and did not create a reasonable apprehension of bias or unfairness sufficient to warrant transfer.
- The claim of harassment arising from being summoned twice in different courts after the earlier order was not attributed to any improper conduct by the present magistrate and therefore did not justify transfer.
- No certificate under Article 134(1)(c) was granted — the Court stated the matter did not raise a question of law appropriate for appeal to the Supreme Court.
- The opinion does not purport to lay down any new legal principle beyond applying and distinguishing existing authorities; no new precedent was announced in this decision beyond its outcome on these facts.
Order pronounced: Application dismissed.
1. I have heard learned counsel for the applicants and find that there is no force in this transfer application. The main ground taken is that the learned magistrate, Kumari Bimla Goel, in whose court the case is pending, first passed an order exempting Shrimati Parvati applicant no. 2 from personal attendance in court during the trial of the case but, subsequently, cancelled that order on an application presented by the counsel for the complainant and this raises an apprehension in the minds of both the applicants that they would not receive proper justice in her court. Learned counsel, in this connection, has drawn my attention to an order of my learned brother Gurtu, J. passed on the 3rd of September, 1952, in this very case when the applicants had come up to this Court for transfer of this very case from another court. Gurtu, J. in that order, held that the circumstances in which the order cancelling the exemption granted was passed, might have raised an apprehension in the minds of the applicants that they would not receive justice in that case. He further found another ground that a non-bailable warrant had been unjustifiably issued by the magistrate. On these two grounds, the case was transferred from the court of that magistrate.
2. It is to be noticed that Gurtu, J. did not arrive at any clear finding that the cancellation of the exemption did actually raise a reasonable apprehension in the minds of the applicants. He only went to the extent of expressing his opinion that it “may raise an apprehension”. It is not necessary for me to consider whether, in the circumstances in which the case came up before Gurtu, J., an apprehension did or did not arise that justice would not be meted out to the applicants in that court. I am only concerned with the circumstances in which the applicants have come up in this second application for transfer. In the affidavit filed in support of this transfer application, the allegation is that, after Kumari Bimla Goel had granted exemption to Shrimati Parvati applicant no. 2 from personal attendance in court, an application was moved by counsel for the complainant indicating that the presence of applicant no. 2 was necessary for a proper trial of the case on the date on which the prosecution witnesses were to be examined. That such a need can exist is clear. It might have been necessary for the prosecution to examine witnesses about the identity of applicant no. 2.
3. Section 205 of the Cr PC gives a discretion to a magistrate to grant exemption from personal attendance to the accused person. Such discretion is to be exercised judicially. The mere fact that an accused is a ‘pardahnashin’ lady does not entitle her to remain exempted all the time even if her presence is required for a proper conduct of the case. Learned counsel has referred to me three cases of this Court, in two of which, viz., in the matter of the petition of Rahim Bibi, — ‘6 All 59 (A)’ and — ‘Mt. Tirbeni v. Mst. Bhagwati’, AIR 1927 All 149 (B), it was held that, ordinarily, exemption from personal attendance should be granted to a ‘pardahnashin’ lady unless a strong ‘prima facie’ case was made out against her. These two cases are not applicable to the case before me because the applicants have come up to this Court by way of a transfer application and not as in those cases in revision against the order cancelling the order of exemption from personal attendance.
4. The third case relied upon by learned counsel is — ‘Bhajan Lal v. Emperor’, AIR 1947 All 13 (C). In that case, there were serious allegations against the magistrate that he had shown favour to two particular lawyers and it was as a result of that favour that the order, cancelling exemption was passed and a non-bailable warrant had also been issued for the arrest of the ‘pardahnashin’ ladies. The learned Judge, after reciting these facts, remarked that he was satisfied that the applicants in that case had not made out any case against the integrity and fair-mindedness of the magistrate, nor was he satisfied that the magistrate was guilty of excess of zeal, let alone an act of indiscretion in the orders which he passed. The learned Judge, however, felt that, on a consideration of all the facts in that case, he was justified in arriving at the view that there was a reasonable apprehension in the minds of the accused that they would not get justice at the hands of that particular magistrate. What were those other facts, which led the learned Judge to that view, have not been made clear in his judgment and it is, therefore, not possible to apply that case to the facts of this case.
5. It is obvious that the mere cancellation of an order of exemption from personal attendance cannot be allowed in all cases to become a ground of transfer. If the magistrate is given a discretion under section 205 of the Cr PC, the law intended to give that discretion with the specific object that, in appropriate cases, exemption should be granted and, in appropriate cases, the magistrate may withdraw that exemption. It is only if a magistrate withdraws the exemption without proper reasons that the Court may be justified in holding that a reasonable apprehension may arise that particular magistrate would not do justice in that case. If the order of exemption is cancelled on sufficient grounds, no such apprehension should arise. If it be held that apprehension arises even after the order granting exemption is withdrawn on sufficient grounds in a proper case, it would mean that the discretion of the magistrate to enforce attendance even where justice requires it would be completely taken away.
6. This would lead to the interpretation that once exemption has been granted under section 205 of the Cr PC or the accused happens to be a ‘pardahnashin’ lady, the court is bound to continue or grant the exemption and can never cancel that exemption, even though it may not be possible to try the case properly in the absence of the person seeking exemption. Clearly, therefore, the question of a reasonable apprehension has to be judged on the standard of the order cancelling the order of exemption being a proper or improper order or being in the exercise of judicial discretion or arbitrary power. In the present case, there is nothing in the affidavit to show that the presence of applicant no. 2 was not necessary on the particular date for which her attendance was directed to be enforced by the learned magistrate, Kumari Bimla Goel, and, in these circumstances, this can be no ground for transfer of the case from her court. Allowing this transfer application on this ground would only have the effect of giving the applicants the idea that thereafter applicant no. 2 can always refuse to attend the court during the trial of this case even if it is found that her presence is needed in that court.
7. The second ground urged by learned counsel is that a reasonable apprehension was raised in the minds of the applicants that they would not receive proper justice in the court of Kumari Bimla Goel because she did not adjourn the case under section 526(8) of the Cr PC when the applicants communicated to her their intention to move this Court for transfer of that case. The affidavit filed on behalf of the applicants shows that 11th June, 1953 was fixed for hearing of the case. On that date, applicant no. 2 was required to attend but she did not appear and thus she disobeyed the direction of the court to be present on that date. It was in these circumstances that the application under section 526(8) of the Cr PC was presented before the learned magistrate. The magistrate naturally wanted an explanation for the absence of applicant no. 2 and, therefore, directed that a medical certificate be filed as also an affidavit on the 15th of June, 1953.
8. The record is not here and it is not possible to find out what exactly transpired as a result of which the medical certificate was demanded but it is clear that it must have been demanded because some plea was put forward on behalf of applicant no. 2 that she had failed to attend the court on the 11th of June, 1953, because of illness. The case had to be adjourned for four days for the purpose of enabling applicant no. 2 to give an explanation for her absence on the 11th of June, 1953, when she had been required to attend the court personally and it was for this adjournment that ten rupees were awarded as costs to the complainant. On the 15th of June, 1953, after this matter was settled, the learned magistrate granted three weeks' time to the applicants to move this Court for transfer and this order was not conditional. In paragraph 6 of the affidavit, where a mention is made about the grant of this time of three weeks, a sentence has been added that applicant no. 1 was also ordered to pay Rs. 10/- as costs to the complainant on the 9th of June, 1953. This, at first, conveyed an idea that these costs were directed to be paid as a condition to granting time for three weeks to move this Court for transfer but, as a matter of fact this is not so. Rs. 10/- as costs mentioned in the last sentence of this paragraph were awarded on the 9th of June, 1953, and not on the 15th of June, 1953, when the case was adjourned to enable the applicants to move this court for transfer.
9. The only other point argued by learned counsel for the applicants is that, after the order of Gurtu, J., dated the 3rd of September, 1952, transferring the case, the applicants were summoned twice unnecessarily in two different courts and this resulted in harassment. It is clear that harassment, if any, was not the result of any act on the part of the particular magistrate who is now trying the case, nor is it possible to hold that enforcement of attendance of applicant no. 2 on those two dates was a deliberate act on the part of the district authorities to harass the applicant.
10. In these circumstances, there is no ground at all in this transfer application which is dismissed. Learned counsel has asked for a certificate under Article 134(1)(c) of the Constitution that it is a fit case for appeal to the Supreme Court but I am unable to grant the certificate as this case raises no such question of law as would justify grant of that certificate.
B/V.S.B
11. Application dismissed.
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