# Gopal Narain v. State of Uttar Pradesh aftd Anr

- **Citation:** [1964] 4 S.C.R. 884
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopal-narain-v-state-of-uttar-pradesh-aftd-anr-3189
- **Pages:** 9

## Headnote

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 scavenging 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 Magistrate 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 identify 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 petitition was ad1nitted and interim stay granted to the petitioner pending 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 petitioner from criminal liability. Thus it was clear that the deponent 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 affidavit 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 criminal 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 Gard

## Text

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 scavenging 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 Magistrate 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 identify 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 petitition was ad1nitted and interim stay granted to the petitioner pending 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 petitioner from criminal liability. Thus it was clear that the deponent 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 affidavit 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 criminal 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 registration 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 s. 420 read
with s.
120B I. P. C. The complaint alleges that after
1963
Smt.
Kaushal ya
Devi
v.
Shri Moo/ Raj
and others.
Gajendragadkar, f.
: 1963
. Smt.
Kaush•ly•
Devi
v.
Shri Moo/ Raj
and others.
G•jentlrogadkar, J.
886
SUPREME COURT REPORTS
(1964]
independence, a profession of colonisers who cheat the illiterate and poor people by clever means and relieve them
of their hard-earned income, has grown in Delhi, .and the
complainant's grievance against the petitioner and the
three other persons mentioned by him in his complaint
appear. to be that they belong to this class of dishonest
Colonisers. .The complaint was filed in the Court of Mr.
R. N. Singh, Magistrate 1st Class, Delhi.
After the petitioner appeared before the learned Magistrate, an application was made on her behalf under s. 253(2)
of the Criminal Procedure Code for her discharge, but no
order was made on the said application. The petitioner
alleges in her present petition that after she moved the
learned Magistrate under s. 253(2) of the Code, the complainant realised that his complaint suffered from several
infirmities, ahd so, he began to make additions and improvements in the case set out by him against the petitioner.
With that object he urged before the learned Magistrate
that though the transaction between him and the petitioner
was substantially carried through by the agents of the
petitioner who are the three other accused persons in the
case, the petitioner was present at the spot at the relevant
time and he suggested that his witnesses would identify
the petitioner as the person who was present at the spot
Dn the relevant and materi;il occasion <luring the course of
the negotiations and before the transaction was finalised.
On this representation, the complainant obtained an
order from the learned Magistrate, Mr. Grover who was
then trying the case, that the petitioner should be produced
in court on the 29th May, 1962. Till then, the learned
Magistrate had dispensed with the personal appearance of
the petitioner in court, but by the order passed by him
on the 29th May, 1962, she was directed to be present in
·court in order to give :in opportunity to the complainant's
witnesses to identify her. The petitioner's case is that she
was not present on the scene, and so, none of the complainant's witnesses harl seen her at all; the complainant's
motive in requiring the petitioner to he present in court
was obvious-if the petitioner attended the court, she
would he asked to sit in the place meant for accused persons and, even otherwise in all probability, she would be
the only lady present in court. That is how the complainant's
-
-
•
4 S.C.R.
SUPREME COURT REPORTS
887
witnesses could easily pretend to identify her as the person who w~s present on the scene. Apprehending that
this order would lead to her prejudice, the petitioner
moved this Court for transfer of the proceedings pending
against her before Mr. Grover
(Transfer Petition No.
8/1962). At the hearing of the said petition, this Court
adjourned the matter for three weeks to enable the petitioner in the meantime to apply to the Sessions Judge for
transfer of the case to a Magistrate drawn from a State
other than Punjab. Interim stay which had been granted
by this Court after admitting the transfer petition was
ordered to continue till the disposal of the said petition.
Subsequently, the petitioner moved the learned Sessions judge, Delhi, and the case against the petitioner was
transferred to the Court of Mr. S. N. Chaturvedi, SubDivisional Magistrate, Delhi, and so, the proceedings were
resumed in his Court. During the course of these proceedings, the learned Magistrate, however, saw no reason
to modify the order already passed against the petitioner
directing her to be present in court when the complainant's
witnesses would give evidence, and the arguments urged
by the petitioner against the propriety and validity of the
said order were rejected hy the learned Magistrate. That
is why the petitioner has filed the present petition praying that the criminal Case No. 44/2 which is at· present
pending against her and three other persons in the Cour;
of Mr. S. N. Chaturvedi, S. D. M., Delhi, should be transferred from the said Court to any other Court of competent jurisdiction in any neighbouring State.
In the course of her petition, the petitioner has alleged
that Dalip Singh who is one of the persons accused along
with her, had been appointed by her as her agent, but the
petitioner has now learnt that Dalip Singh is a great
friend of Sardar Partap Singh Kairon, Chief Minister of
Punjab, and that his antecedants are far from satisfactory. •
It has been averred in the present petition that Dalip
Singh has recently undergone six months' rigorous imprisonment on a charge of cheating and was later involved
in other serious offences. Her apprehension is that by
virtue of his friendship with the Chief Minister of Punjab, Dalip Singh wields considerable influence and may
take steps to prejudice the petitioner's case, though he
1963
s,,,,,
Kau;halya
Devi
v.
Shri Moo/ Raj
and others.
Gaien<r.-
gadkar, f.
1963
Smt.
Kaushal ya
Devi
v.
,•
888
SUPREME COURT REPORTS
[1964]
happens to be one of the accused persons. In fact, the
petitioner avers that "it is not without significance that
Dalip Singh had been holding out the threat that if the .
petitioner's case is transferred to any Delhi Magistrate's
Shri Moo/ Rai
and others.
Court, he would get her convicted."
In fact, the main point which the petitioner has made
in the present petition is that the present complaint is
frivolous and has been filed against her bacause she happens to be mother-in-law of Mr. R. P. Kapur who has
incurred the wrath of the Chief Minister of Punjab. The
petitioner hersdf is 61 years old and has been involved
in several cases along with her son-in-law Mr. Kapur.
Her grievance appears to be that putting the case of
the complainant at its best, the facts alleged by him
in his complaint may perhaps constitute a civil dispute,
but the said facts have been deliberately twisted and a
criminal complaint has been made to harass the petitioner.
Gajend1·a·
t•dkar, /.
· After this petition was admitted and interim stay
granted to the petitioner pending the hearing and final
disposal of the main petition, an affidavit has been filed
on behalf of the Delhi Administration by Mr. Chaturvedi,
the Sub-Divisional Magistrate, himself and that has created a serious complication. In the ordinary course, an affidavit shoulp have been filed by some officer representing
the Delhi Administration. An affidavit could also have
been filed by the complainant; but it is not easy to understand how the Delhi Administration requested the learned
Magistrate himself to make the affidavit, and how the
learned Magistrate accepted the said request. In the petition, the petitioner has not made any specific personal
allegation against the learned Magistrate in whose court
the present petition is pending. The main ground on
which the petitioner is seeking transfer from his court is
that like Mr. Grover, the present Magistrate also is insist-
•
ing upon the petitioner remaining present in court, and
that, says the petitioner, is an unreasonable and irrational
order. In other words, just as the petitioner moved the
Sessions Court successfully for transfer of her case from
the court of Mr. Grover on the
ground that the said
Magistrate had directed the petitioner to remain present in
court for the purpose of giving an opportunity to the
complainant's witnesses to identify her, so she made the
--
-
4 S.C.R.
SUPREME COURT REPORTS
889
same request by her present petition, because the same
order was being enforced by the Sub-Divisional Magistrate in whose court her case now stands transferred; and
if the Sub-Divisional Magistrate himself had not made an
affidavit, we would have had to consider whether it was
necessary to transfer the case on the ground made by the
petitioner; but in view of the fact that the Sub-Divisional
Magistrate himself has, in a sense, entered the arena and
made a counter-affidavit opposing the transfer application,
the complexion of the problem is completely changed.
That is why we have just indicated after the pre~ent petition was admitted, a serious complication has arisen by
virtue of the fact that the Sub-Divisional Magistrate himself has made a counter-affidavit.
The affidavit of the Sub-Divisional Magistrate is described as an affidavit made on beha.lf of the Delhi Administration. In his affidavit, the Magistrate has covered all
the allegations made by the petitioner paragraph by paragraph and naturally in several places he has said that the
allegations relate to facts which are not within his knowledge, and so, he cannot make any averment in that
behalf. Even so, in paragraph 6 of the affidavit, the deponent Magistrate has alleged that the clause indemnifying
the purchaser contained in the sale-deeds on which the
petitioner relies, would not absolve the petitioner from
criminal liability; and, thus, it is clear that the deponent
Magistrate has adopted the argument which may probably
be urged by the complainant at the trial. The affidavit
has further averred that the executive has no influence so
far as the <leponent's court is concerned, and it has em·
phasised that "there is no justifiable cause for any apprehension on the part of the petitioner which would justif}
the transfer of her ca§C from this Court". In the end, the
affidavit says that the petition made for transfer should be
dismissed.
This Court has had occasion to deal with transfer
applications in s_everal cases, but we have never come across
a case where the allegations made in the transfer applica·
tions are contested by an af!ida vit made by the learned
Magistrate who tries the case himself. It is true that if
in a petition for transfer allegations are made against the
Magistr.ate in regard to what he said or did during the
57-2 S. C. India/64
1963
Smt.
Kaushal ya
Devi
v.
Shri Moo/ Rai
and others.
Gajendragadkar, /.
1963
Smt.
Kaushal ya
Devi
v.
Shri M ool Raj
and others.
Gaiendragadkar, /.
890
SUPREME COURT REPORTS
(1964]
course of the trial, and it appears that the said allegations
require to be examined, this Court calls for a report from
the Magistrate ; and when a report is thus called for, the
Magistrate no doubt gives his version in respect of the
allegations made by the petitioner against him. But it is
impossible to understand how the Magistrate in whose
court the proceedings in question are pending can rush
into the arena and make an affidavit disputing the prayer
made by the petitioner for transfer of the case. A transfer
application can be opposed by the complainant if the proceedings have commenced at the instance of a private
complainant; it may be opposed by the State; but the
Magistrate in whose court the . proceedings are pending
should never forget that he is a Judge and not a partisan
for the Administration or the prosecution; that is why it
is inconceivable that he should make an affidavit like the
present traversing the grounds set out by the accused person when an application for transfer is made by him/her,
but, unfortunately, that is precisely what has happened in
the present case. The statement made by the learned
Magistrate in paragraph 6 of his affidavit, to which we
have already referred, clearly shows that the Magistrate
has assumed a partisan role and has purportw to contest
the plea wp.ich the petitioner wanted to raise in defence
in respect of the charge levelled against her by the .complainant.
Unfortunately, in some parts of the country, the
policy of separating the judiciary from the executive has
still not been implemented. Nevertheless, we are confi-
.dent that even in areas where such separation has not
.taken place, members of the judiciary are functioning
without fear or favour.
But when an instance like the
present comes to the notice of this Court, it naturally
causes us considerable concern. The learned Magistrate
who has been ill-advised to make the present affidavit, did
not realise that when he entered the arena and made an
.affidavit on behalf of the Administration, his statement
that the executive has no influence in his court, is apt
to sound idle and meaningless. A little reflection would
have satisfied him of the gross impropriety of his action
in making an affidavit like the present. It is an elementary principle of the rule of law that Judges who preside
-
-{
4 S.C.R.
SUPREME COURT REPORTS
891
over trials, civil or crimillal, never enter the arena. In
criminal trials, particularly, it is of utmost importance that
the Magistrate who tries the case must remain fearless,
impartial and objective; and so, no argument is required
in support of the proposition that if a Magistrate chooses
to make an affidavit challenging the application made by
an accused person whose case is pending in his court,
makes the said affidavit on behalf of the Administration,
and in the affidavit puts in a strong plea opposing the
transfer, all essential attributes of a fair and impartial
criminal trial are immediately put in jeopardy. It is very
much to be regretted that the Delhi Administration chose
to request the Magistrate to make an affidavit and that
the Magistrate accepted the said request and made the
affidavit on the lines we have already indicated. That
being so, even without considering the merits of the contentions raised by the petitioner, we think it is expedient
for the ends of justice that the case pending against the
petitioner and three other persons should be transferred
from the court of the learned Sub-Divisional Magistrate,
Delhi, to a court of competent jurisdiction in Saharanpur,
U. P. We accordingly direct that the papers in this case
should be sent to the District Magistrate, Saharanpur, who
should nominate a Magistrate of competent jurisdiction in
his district to try this case.
It is true that three other persons also stand charged
along with the petitioner in the present case, but having
regard to the unusal facts which have justified the transfer, we do not think it necessary to consider whether the
said three accused persons are agreeable to have their case
transferred to a court of competent jurisdiction in Saharanpur. The complaint discloses that the said accused
persons are alleged to be concerned with the offences only
as agents and representatives of the petitioner, and so,
the main charge is against the petitioner herself. Besides,
on the last occasion when the learned Sessions Judge,
Delhi, transferred the case from the court of Mr. Grover
to the court of the Sub-Divisional Magistrate, the transfer
was ordered mainly at the instance of the petitioner alone.
In this connection, we ought to make it ciear that we
have not heard the complainant Moo! Raj, nor Dalip
Singh against whom the petitioner has made several alle1963
Smt.
Kaushal ya
Devi
v.
S!tri Moot Raj
a•d others.
Gaie•dra·
gadkar, f.
•
1963
Smt.
Kaushal ya
Devi
v.
Shri Mool Rai
and others.
Gaiemlrogadkar, f.
1963
September, 5
892
SUPREME COURT REPORTS
[1964]
gations, and so, in ordering the transfer of the case pending against the petitioner, we are expressing no opinion
on the allegations made by the petitioner against the said
two parties or against the Chief Minister of Punjab.
Transfer ordered.
ANAND NIVAS (PRIVATE) LTD.
ti.
ANANDJI KALYANJI PEDRI & ORS.
(A. K. SARKAR, M. H10AYATULLAH AND SHAH JJ.)
Houses and Rents-Statutory Tenant and Contractual tenant-·
Difference-Right of sub-letting-Bombay Rents. Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, ss.
12, 14 and 15.
The respondents granted to one Maneklal for five years a lease
of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad. After the expiration of the period
of the lease, a suit was instituted by the respondent!' against Maneklal for a decree in tjectment and the realisation of arrears of
rent.
The suit was decreed.
However, Maneklal sublet a part of
the premises in his occupation to the appellant after the institution
of the suit against him but before the promulgation of the Bombay
Rents, Hotel and Lodging House Rates Control (Amendment)
Ordinance, 1959.
In execution of the decree, the respondents ob--
tained possession of the first floor but were obstructed as to the
rest by the appellant and two others who claimed to be sub-lessees
from Mancklal and thereby to have acquired rights of tenancy of
the ground floor upon determination of the tenancy of Maneklal.
The appellant filed a suit for a declaration that it was not
boulld
to
deliver possession of the premises in its occupation in
execution
of
the
decree
passed
against
Maneklal
and
for
an injunction
restraining the
respondents
form en forcing
the
decree.
The trial Court refused to grant the interim injunction
against the respondents.
The lower appellate court also
refused
to issue the interim injunction.
The High Court dismissed the
appeal of the appellant on the ground that a statutory tenant re-
.
-