Research › Search › Judgment

J&K High Court · body

2006 DIGILAW 265 (JK)

Gh. Nabi Shaida v. Chandan Mitra

2006-11-10

B.A.KHAN

body2006
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 506-B 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. 3. 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. 4. 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 & 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." 5. 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." 5. The above judgment of the Court, therefore, concludes the legal position on the issue and answers the first preliminary objection raised by respondents counsel, which is rejected. 6. The other issue whether transfer application filed by the respondents at Jammu Wing of the Court was a "case" or not requires to be examined and determined and for so doing it becomes necessary to go to the meaning of the word "case". This word is neither defined in the Code of Civil Procedure nor in the Criminal Procedure Cord or General Clauses Act, though it has occurred in provisions of various statutes. It would, therefore, have to be understood by a common understanding and its meaning deduced in the context in which it is used. 7. The New Shorter Oxford Dictionary (Volume 1, Edited by Lesley Brown, middle column at page 345) defines it as "the sum of arguments on one side of a legal cause or transfer of any matter of debate or controversy". The Law Lexicon (Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, 2005 Book 1, page 695), however, says that the word "case" is a word of comprehensive import and that it includes all civil proceedings other than suits. For example it provides that word "case" occurring in section 115 of CPC includes interlocutory order also. It goes further to add that it includes not only the entire proceedings but a part of proceedings also. 8. The Supreme Court also had the occasion to deal with the meaning of word "case" in number of judgments though in specific context. In Major S. S. Khanna v Brig F. J, Dillon, AIR 1964 SC 497, the Court observed: "The expression `case is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. In Major S. S. Khanna v Brig F. J, Dillon, AIR 1964 SC 497, the Court observed: "The expression `case is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression `case as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice...". In one more judgment in B. B. B. Sannavar v Laxman Shivarayappa Samagouda, AIR 1970 SC 1153, the Supreme Court credited the following meaning to the word "case" in the context of criminal proceedings: "The word `case is not defined by the Code but its meaning is well understood in legal circles. In criminal jurisdiction it means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence...." 9. From all this it becomes clear that any effort to know the meaning of this word squarely depends on the context in which it is used, be that in a criminal or civil proceeding or, for that matter, in any statute whatsoever. For general purposes, however, the word "case" has to be taken as a word of very comprehensive import and amplitude to mean a legal proceeding commenced by the statement of a fact or facts which furnishes the exercise of a jurisdiction at the instance of a party. It includes part proceeding also. Therefore, if a proceeding can be commenced by an application which invokes the legal jurisdiction by the party, it becomes a "case" pending before the forum/authority whose jurisdiction is invoked. It need not necessarily be a suit or any type of a formal legal pleading or a criminal complaint. Even any application or petition which furnishes a cause of action and requires some relief in law to be granted becomes a "case" irrespective of the label under which it is filed or remains pending. 10. In the present case, respondents have admittedly filed an application for transfer of a private complaint from Judicial Magistrate, Srinagar to Judicial Magistrate, Jammu. Even any application or petition which furnishes a cause of action and requires some relief in law to be granted becomes a "case" irrespective of the label under which it is filed or remains pending. 10. In the present case, respondents have admittedly filed an application for transfer of a private complaint from Judicial Magistrate, Srinagar to Judicial Magistrate, Jammu. This application is based on a cause of action claimed to be available to the respondent on which they are seeking a consideration, adjudication and disposal by the Court. Therefore, this application partakes the character of a legal proceeding and becomes a "case" within the meaning of that word and as the Chief Justice enjoys the power to transfer a case from one Wing of the Court to the other and vice versa, he is as much competent to exercise this power in respect of this transfer application also which is pending before the Court for seeking some relief under law. The second preliminary objection raised by the respondents counsel is, therefore, also rejected and it is held that the Chief Justice possesses the power to transfer even a transfer application which is a "case" from one Wing of the High Court to the other Wing. 11. Consequent upon rejection of the preliminary objections, the transfer application no.43/2005 be listed for hearing/disposal on merits on availability of the Bench.