Smt. Kaushalya Devi vs Shri Mool, Raj And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Transfer Petition No. 15 of 1963

Decision Date: 4 September 1963

Coram: P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. Mudholkar

The Court recorded that the matter concerned Smt Kaushalya Devi as petitioner and Shri Mool, Raj and others as respondents, with the judgment delivered on 4 September 1963 by a Bench comprising P B Gajendragadkar, K Subba Rao, K N Wanchoo, N Rajagopala Ayyangar and J R Mudholkar. The case arose from criminal proceedings that had been instituted against the petitioner and three other individuals on a complaint filed by the first respondent. The complaint alleged that the four accused had committed offences punishable under section 420 read with section 120B of the Indian Penal Code. Initially, the Sub‑Divisional Magistrate in Delhi had discharged the petitioner from appearing personally before the court. Subsequently, however, the complainant filed an application, and the Magistrate ordered that the petitioner be produced in court so that the complainant’s witness could be afforded an opportunity to identify her. Fearing that this order would prejudice her case, the petitioner filed an application before this Court seeking the transfer of the criminal trial to another court, contending, among other points, that the factual matrix presented by the complainant might actually pertain to a civil dispute, that the same facts had been deliberately distorted, and that the criminal complaint had been instituted solely to harass her. The Supreme Court admitted the transfer petition and, pending a full hearing, granted the petitioner an interim stay of the order directing her appearance. After the stay was granted, the Magistrate himself filed an affidavit on behalf of the Delhi Administration opposing the transfer. In that affidavit the Magistrate asserted, inter alia, that the indemnity clause contained in the sale deed on which the petitioner relied would not shield her from criminal liability. The Court noted that the deponent Magistrate had thus adopted the line of argument that was likely to have been advanced by the complainant during the trial. The Court held that the Magistrate’s action of filing an affidavit and opposing the transfer application was wholly improper. It emphasized that in criminal trials a Magistrate who is presiding over the case must remain fearless, impartial and objective; any attempt by the Magistrate to challenge an accused’s application for transfer, especially when made in the name of the Administration and containing a strong plea against transfer, jeopardised the essential attributes of a fair and impartial criminal trial. Furthermore, the Court held that, without even considering the merits of the petitioner's contentions, it was necessary in the interests of justice that the case be transferred to another court of competent jurisdiction. Consequently, the petition for transfer was allowed. The judgment arose out of Transfer Petition No 15 of 1963, which sought the transfer of a criminal case pending before the Sub‑Divisional Magistrate, Delhi, to any other court in a neighbouring State. Counsel for the petitioner was identified as B C Misra, while counsel for respondent No 5 was identified as R N Sachthey. The order was dated September 1963.

The judgment was delivered by Justice Gajendragadkar. The petitioner, Mrs Kaushalya Devi, was being tried together with three other individuals in the Court of the Sub‑Divisional Magistrate, Delhi. The criminal proceedings originated from a complaint lodged by Mool Raj Hukam Chand, who alleged that the four accused had committed offences punishable under section 420 read with section 120B of the Indian Penal Code. According to the complainant, the dispute concerned a transaction involving the registration of Plot No 210 in Meenakshi Garden, which he said was the result of cheating. He asserted that the transaction had taken place in June 1959 and that he had paid the petitioner the sum of Rs 1150 at the time the document was registered. The complainant maintained that the plot which had been shown to him and subsequently placed in his possession did not actually belong to the petitioner; this alleged mis‑representation formed the basis of the charge under sections 420 and 120B. The complaint further described a post‑independence phenomenon in which a class of “colonisers” allegedly cheat illiterate and poor people through clever means, and it characterised the petitioner and the three other accused as belonging to this dishonest class. The complaint was filed in the Court of Mr R.N. Singh, Magistrate First Class, Delhi. After appearing before the learned magistrate, the petitioner moved an application under section 253(2) of the Criminal Procedure Code seeking her discharge, but no order was passed on that application. The petitioner now contends, in the present petition, that once she had filed the application under section 253(2), the complainant realised that his complaint contained several infirmities and consequently began to augment and amend the case against her. With that purpose, he urged the magistrate that although the transaction had been substantially carried out by the petitioner’s agents—the three other accused—Mrs Kaushalya Devi herself had been present at the relevant location at the material time. He further suggested that his witnesses would be able to identify the petitioner as the person who was present during the negotiations and before the transaction was completed. Acting on this representation, the complainant secured an order from the learned magistrate, Mr Grover, who was then presiding over the trial, directing that the petitioner be produced in court on 29 May 1962. Until that date, the magistrate had dispensed with the personal appearance of the petitioner, but the order of 29 May required her presence in order to afford the complainant’s witnesses the opportunity to identify her.

The complainant’s witnesses were to be given the opportunity to identify the petitioner in court. The petitioner contended that she had never been present at the scene of the alleged incident; consequently, none of the complainant’s witnesses could have seen her. She argued that the complainant’s motive in insisting on her appearance was obvious: if the petitioner were brought before the court, she would be required to sit in the seat designated for accused persons and would likely be the only female present, thereby enabling the complainant’s witness to deceitfully claim that she was the person who had been at the scene. Fearing that the order would prejudice her, the petitioner filed a transfer petition (Transfer Petition No. 8/1962) seeking to have the proceedings pending before Magistrate Mr Grover transferred. At the hearing, this Court adjourned the matter for three weeks so that the petitioner could approach the Sessions Judge for a transfer of the case to a magistrate drawn from a state other than Punjab. An interim stay, which had been granted after the transfer petition was admitted, was ordered to remain in force until the petition was finally disposed of. Subsequently, the petitioner approached the learned Sessions Judge in Delhi, and the case against her was transferred to the Court of Mr S. N. Chaturvedi, Sub‑Divisional Magistrate, Delhi, where the proceedings were resumed. During these proceedings, the learned magistrate found no reason to amend the earlier order directing the petitioner to appear in court when the complainant’s witnesses would give evidence, and he rejected the petitioner’s arguments concerning the propriety and validity of that order. As a result, the petitioner now files the present petition, praying that criminal case No. 44/2, presently pending against her and three other persons in the Court of Mr S. N. Chaturvedi, S.D.M., Delhi, be transferred to any other court of competent jurisdiction in a neighbouring state. In support of this prayer, the petitioner alleges that Dalip Singh, one of the accused, had been appointed by her as her agent, but she has learned that Dalip Singh is a close friend of Sardar Partap Singh Kairon, the Chief Minister of Punjab, and that his antecedents are unsatisfactory. The petitioner further averred that Dalip Singh recently served six months of rigorous imprisonment on a charge of cheating and has since been involved in other serious offences. She fears that, because of his friendship with the Chief Minister, Dalip Singh may wield considerable influence and could take steps to prejudice her case, even though he is himself an accused. The petition also states that it is not without significance that Dalip Singh had been holding out the threat.

The petitioner asserted that if her case were transferred to any Delhi Magistrate’s Court, she would be convicted. She maintained that the present complaint is frivolous and was lodged against her solely because she is the mother‑in‑law of Mr R P Kapur, who has incurred the displeasure of the Chief Minister of Punjab. The petitioner, who is 61 years old, disclosed that she has been involved in a number of proceedings together with her son‑in‑law, Mr Kapur. She contended that, even when the complainant’s allegations are viewed in the most favourable light, the facts described in the complaint appear to belong to a civil dispute rather than a criminal offence. According to the petitioner, those factual allegations have been deliberately distorted and a criminal complaint has been filed with the purpose of harassing her. After the petition was admitted, an interim stay was granted to the petitioner pending the hearing and final disposal of the main petition. Subsequently, an affidavit was filed on behalf of the Delhi Administration by Mr Chaturvedi, the Sub‑Divisional Magistrate, in his personal capacity. This development created a serious complication. Ordinarily, an affidavit on behalf of the Delhi Administration would be filed by an officer representing the administration, or alternatively by the complainant himself. It is difficult to understand how the Delhi Administration requested the learned magistrate to make the affidavit and how the magistrate consented to that request. The petitioner did not allege any personal misconduct against the learned magistrate whose court is hearing the present petition.

The petitioner’s principal ground for seeking transfer of the case from the Sub‑Divisional Magistrate’s court is that, similar to the earlier order of Mr Grover, the present magistrate is insisting that she remain present in court. She described that direction as unreasonable and irrational. In effect, the petitioner had previously obtained a transfer of her case from the court of Mr Grover on the basis that the magistrate had directed her to stay in court so that the complainant’s witnesses could identify her. She now seeks the same relief, arguing that the same order is being enforced by the Sub‑Divisional Magistrate in whose court the case has been transferred. Had the Sub‑Divisional Magistrate not filed an affidavit, the court would have needed to consider whether the petitioner’s ground for transfer was sufficient. However, the magistrate’s own affidavit, which opposes the transfer application, has altered the complexion of the matter completely. Consequently, the court noted that after the petition’s admission, a serious complication arose because the Sub‑Divisional Magistrate himself entered the dispute by filing a counter‑affidavit on behalf of the Delhi Administration.

In this case the magistrate filed an affidavit on behalf of the Delhi Administration. In that affidavit he went through every allegation that the petitioner had made, dealing with them one paragraph after another. He repeatedly pointed out that many of the petitioner’s accusations related to facts that he did not know, and therefore he could not make any factual statement in support of those particular allegations. Despite these qualifications, the magistrate asserted in paragraph 6 of his affidavit that the indemnity clause contained in the sale‑deeds relied upon by the petitioner would not protect her from criminal liability. By making this claim, the magistrate appeared to adopt the line of argument that the complainant was likely to advance at trial. The affidavit further stated that the executive had no influence over the magistrate’s own court and stressed that there was no justifiable cause for any apprehension on the part of the petitioner that would warrant the transfer of her case from the present court. At the conclusion of the affidavit the magistrate recommended that the petition moving for transfer be dismissed.

The Court observed that it had dealt with numerous transfer applications in earlier decisions, but it had never encountered a situation where the allegations set out in a transfer petition were contested by an affidavit filed by the very magistrate who was trying the case. The Court noted that where a transfer petition contains specific charges against a magistrate’s conduct during the trial, the Court may issue a direction for the magistrate to submit a report, and in response the magistrate will give his version of the facts. Nevertheless, the Court found it impossible to understand how the magistrate, whose court was currently hearing the proceedings, could enter the arena by filing an affidavit that opposed the petitioner’s request for transfer. The Court explained that a transfer application may be opposed by the complainant when the complaint originates from a private individual, or by the State, but that the magistrate presiding over the case must always remember that his role is that of an impartial judge, not a partisan of the administration or the prosecution. Consequently, it was inconceivable that the magistrate should file an affidavit mirroring the defence arguments of the accused against a transfer request, yet the Court observed that this exact conduct had occurred in the present matter. The Court pointed to the statement made by the magistrate in paragraph 6, which demonstrated that the magistrate had assumed a partisan stance and had sought to contest the defence plea that the petitioner wanted to raise against the charge levelled by the complainant. The Court expressed regret that such conduct appeared in parts of the affidavit.

The Court observed that, although the nation has not fully implemented the policy of separating the judiciary from the executive, it remains confident that judges across the country continue to perform their duties without fear or favour. Nevertheless, when a situation such as the present one comes before the Court, it naturally raises serious concern. The learned Sub‑Divisional Magistrate, who was poorly advised to prepare the affidavit in question, failed to appreciate that by entering the fray and filing an affidavit on behalf of the Administration, his claim that the executive exercises no influence over his court appeared hollow and meaningless. A moment of reflection should have made him aware of the gross impropriety involved in executing such an affidavit.

The Court reiterated the fundamental principle of the rule of law that judges, whether presiding over civil or criminal matters, must never become participants in the dispute. In criminal proceedings, it is especially crucial that the magistrate conducting the trial remain fearless, impartial and objective. Consequently, no further argument is needed to support the proposition that when a magistrate drafts an affidavit contesting an application filed by an accused whose case is pending before him, does so on behalf of the Administration, and in that affidavit advances a vigorous plea opposing transfer, the essential attributes of a fair and impartial criminal trial are instantly endangered. The Court expressed regret that the Delhi Administration requested the magistrate to prepare such an affidavit and that the magistrate acquiesced to that request, producing the document in the manner already described.

Even without assessing the merits of the petitioner’s contentions, the Court considered it expedient for the ends of justice to transfer the case pending against the petitioner and three co‑accused from the jurisdiction of the learned Sub‑Divisional Magistrate in Delhi to a competent court in Saharanpur, Uttar Pradesh. Accordingly, the Court directed that all papers in this matter be forwarded to the District Magistrate of Saharanpur, who shall nominate a magistrate of appropriate jurisdiction in his district to try the case. Although three additional persons are charged alongside the petitioner, the Court noted that, given the unusual facts justifying the transfer, it was unnecessary to determine whether those three accused would consent to having their case moved to a court of competent jurisdiction in Saharanpur. The complaint indicates that these accused are alleged to have acted solely as agents and representatives of the petitioner, making the primary charge one of direct liability against the petitioner herself.

In this matter, the Court observed that the request to transfer the proceedings had been made solely by the petitioner and that no other party had initiated the application. The Court then clarified that it had not taken any evidence or heard any statements from either of the two complainants, namely Mool Raj and Dalip Singh, who were identified in the petition as individuals against whom the petitioner had made several allegations. Because the Court had not examined the positions of those two complainants, it emphasized that the decision to relocate the case against the petitioner was not intended to endorse or reject the substance of the petitioner’s accusations directed at those two persons. Likewise, the Court stated that its order did not express any view on the additional allegations the petitioner had leveled against the Chief Minister of Punjab. In other words, the transfer order was limited strictly to the procedural question of moving the pending case to a different jurisdiction, and the Court expressly refrained from passing any judgment on the merits of the various claims made by the petitioner against Mool Raj, Dalip Singh, or the Chief Minister. After making these observations, the Court formally ordered that the case be transferred as requested.