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2013 DIGILAW 1992 (BOM)

Mohammed Arshad Iqbal Abdul Rashid v. Divakar

2013-09-26

ABHAY M.THIPSAY

body2013
JUDGMENT 1. Rule. 2. By consent, Rule is made returnable forthwith. By consent, heard finally. 3. The Petitioner is the Complainant in S.C.C. No.3630 of 2012, which was filed before the Judicial Magistrate First Class, Aurangabad (Court No.1). Respondent No.1 is the sole accused in the said case. There are two other cases pending against Respondent No.1 herein, i.e. S.C.C. No.3699 of 2012 and S.C.C. No.3958 of 2012. All these three cases were pending in three difference Courts of Judicial Magistrates. All these cases are in respect of an offence punishable under Section 138 of the Negotiable Instruments Act. 4. Respondent No.1 made an application before the learned Sessions Judge for directing all the said three cases to be tried by and before one and a single Magistrate. The learned Sessions Judge, Aurangabad on 4th March, 2013, passed an order withdrawing the cases S.C.C. No.3630 of 2012 and S.C.C. No.3699 of 2012 from the Courts where they were pending and transferring the same to the Judicial Magistrate First Class (Court No.3) where the third case was pending for disposal in accordance with law. The Petitioner being Complainant in S.C.C. No.3630 of 2012, is aggrieved by the said order and has approached this Court by the present petition invoking its constitutional jurisdiction. 5. The only contention advanced by the learned counsel for the Petitioner is, that the transfer could not have been effected without giving notice to the Petitioner and the Complainants in the other cases. In support of his contention that a transfer cannot be effected in such a manner, he has placed reliance on a decision of the Supreme Court of India in the case of NirmalSingh Vs. State of Haryana, reported in 1996 Cri. L. J. 3998. 6. I find that the transfer has been ordered by the Sessions Judge on ‘administrative ground’, though the application for transfer was made on the judicial side. 7. Without expressing any final opinion on whether, transfer of a case even on ‘administrative ground’ can never be ordered without hearing the other side, it may be observed that in the application for transfer that was made before the learned Sessions Judge, there was a prayer that the transfer be effected after hearing the Complainants in all the three cases, who were made ‘Respondents’ to the application for transfer. When such was the position, it would have been more appropriate for the learned Sessions Judge to have issued notice to the Respondents and then decided the question of transfer. 8. That the application for transfer itself mentioned that the same be decided after hearing the Complainants in all the cases, is indicative of the opinion of the Respondent No.1 himself, that for effecting the transfer, say of the Complainants in all the cases, would be material. Therefore, the Sessions Judge ought not to have taken recourse to his general administrative power for ordering the transfer without notice, as done by him. 9. The impugned order therefore, needs to be interfered with by exercising the jurisdiction available to this Court under Article 227 of the Constitution of India. 10. The Petition is allowed. The impugned order is set aside. The learned Sessions Judge shall hear the application for transfer filed by Respondent No.1 herein, after giving notice and an opportunity of being heard to the Respondents in the said application and then decide the same in accordance with law. 11. The learned Sessions Judge shall decide the application expeditiously and preferably within a period of one month from the date of receipt of this order by him. 12. Respondent No.1 and the Petitioner shall remain present before the learned Sessions Judge on 7th October, 2013. 13. Till the transfer application is decided in accordance with law, as aforesaid, the record and proceedings of all the cases shall remain with the learned Sessions Judge. 14. Rule is made absolute in the aforesaid terms.