LexSMT. KAUSHALYA DEVI versus SHRI MOOL RAJ AND OTHERS
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1963 . Gopal Narain v. State of Uttar Pradesh aftd Anr. Subba Rao, l· 1963 September, 4 884 SUPREME COURT REPORTS [l%4] Municipal Board had certainly power to impose the sca- venging tax. The mention of cl. (xii) in the notification appears to be a mistake for cl. (xi) and that does not effect the power of the Municipal Board to impose the tax. There are no merits in this contention either. In the result, the petition is dismissed with costs. Petition dismissed. SMT. KAUSHALYA DEVI ti, SHRI MOOL RAJ AND OTHERS (P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHoo, N. RAJAGOPALA AYYANGAR AND ). R. MunHOLKAR, Jj.) Practice-Application by accused for transfer-.-'! ffidavit by trying 1'fagistrate opposing application-Propriety. Criminal proceedings \Vere started against the petitioner and three others on an complaint made by the first respondent alleging that the four accused persons had committed offences under s. 420 read with s. 120B of the lodian Penal Code. Originally the Magis- trate had dispensed with the personal appearance of the petitioner in court, but on application made by the complainant, the Magistrate n1ade an order directing the petitioner to be present in court in order to give an opportunity to the co1nplainant's witness to identi- fy her. Apprehending that this order would lead to her, prejudice, she made an application in the Supreme Court for transfer of the case to some other couft, on the grounds, inter alia, that the facts alleged by the complainant nlight perhaps constitute a civil dispute but the said facts had been deliberately twisted and a criminal complaint had been made to harass the petitioner. After the peti- tition was ad1nitted and interim stay granted to the petitioner pen- ding the hearing and final disposal of the main petition, an affidavit \Vas- filed on behalf of the Delhi Administration, by the Magistrate hi1n!:elf, opposipg the application and stating, inter alia, that the clause inde1nnifying the purchaser contained in the sale deed on which the petitioner relied on \Vould not absolve the peti- tioner from criminal liability. Thus it was clear that the depon- ent Magistrate had adopted the argument which might probably be urged by the complainant at the trial. - .. - - 4 S.C.R. SUPREME COURT REPORTS 885 HELD : (i) The action of the Magistrate in making an affida- vit and opposing the application for transfer was wholly improper. In critninal trials, particularly, it was of utmost importance that the Magistrate \vho tried the case must remain fearless, im· partial and objective~ and if a I'v1agistrate chose to make an affi. davit challenging the application n1ade by an accused person whose case was pending in his court, made the said affidavit on behalf of the ..:\d1ninistration, and in the affidavit put a strong plea opposing the transfer, all essential attributes of a fair and in1partial criminal trial \Vere immediately put in jeopardy. (ii) Even without considering the merits of the contentions raised by the petitioner, it was expedient in the ends of justice that the case should be transfered to some other court of con1petent jurisdiction. ORIGINAL JnRISDICTION 1963. Transfer Petition No. 15 of Petition for transfer of a criminal case pending in the Court of Sub Divisional Magistrate Delhi to any other Court in a neighbouring State. B. C. Misra, for the petitioner. R. N. Sachthev, for respondent No. 5. September 4, 1%3. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The petitioner Mrs. Kaushalya Devi is being tried along with three other persons in the Court of the Sub-Divisional Magistrate, Delhi. These cri- minal proceedings commenced on a complaint made by Moo! Raj Hukam Chand against the petitioner and three other persons alleging that the four accused persons had committed offences under section 420 read with s. 120B of the Indian Penal Code. The complainant's case is that the transaction between him and the petitioner in relation to the registration of Plot No. 210 in Meenakashi Garden was the result of cheating. This transaction took place, according to him, in June, 1959, and the complainant had paid to the petitioner Rs. 1150 at the time of the registra- tion of the document. According to him, the plot shown to him and given in his possession in pursuance of the said transaction did not belong to the petitioner and that, in substance, is the basis of the charge under
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