Case Note & Summary
The petitioner, Mohammed Arshad Iqbal Abdul Rashid, was the complainant in S.C.C. No.3630 of 2012 filed before the Judicial Magistrate First Class, Aurangabad (Court No.1) against respondent No.1 for an offence under Section 138 of the Negotiable Instruments Act. Two other similar cases, S.C.C. No.3699 of 2012 and S.C.C. No.3958 of 2012, were pending against the same accused in different Magistrate courts. The accused filed an application before the Sessions Judge seeking transfer of all three cases to a single Magistrate. On 4th March 2013, the Sessions Judge passed an order withdrawing S.C.C. No.3630 of 2012 and S.C.C. No.3699 of 2012 from their respective courts and transferring them to the Judicial Magistrate First Class (Court No.3) where the third case was pending. The petitioner, being the complainant in S.C.C. No.3630 of 2012, challenged this order before the High Court. The sole contention raised was that the transfer was effected without giving notice to the petitioner and the other complainants, violating principles of natural justice. The High Court examined the order and found that the Sessions Judge had acted on the 'administrative side' despite the application being made on the judicial side. The court held that the transfer without notice to the complainants was illegal and unsustainable. Relying on the Supreme Court decision in Nirmal Singh v. State of Haryana (1996 Cri. L.J. 3998), the High Court quashed the transfer order and restored the cases to their original courts. The petition was allowed, and rule was made absolute.
Headnote
A) Criminal Procedure - Transfer of Cases - Natural Justice - Section 138 Negotiable Instruments Act, 1881 - Sessions Judge transferred two complaint cases from their respective courts to another Magistrate on an application by the accused without notice to the complainants - Held that such transfer without notice violates principles of natural justice and cannot be sustained (Paras 5-7).
Issue of Consideration
Whether the Sessions Judge could transfer criminal cases under Section 138 of the Negotiable Instruments Act from one Magistrate to another without giving notice to the complainants.
Final Decision
The High Court allowed the petition, quashed the order dated 4th March 2013 passed by the Sessions Judge, Aurangabad, and restored the cases to their original courts. Rule made absolute.
Law Points
- Natural justice
- Transfer of cases without notice
- Administrative vs judicial transfer
- Section 138 Negotiable Instruments Act
- 1881
Case Details
2013 LawText (BOM) (09) 30
Criminal Writ Petition No. 269 of 2013
Mr. S.S.Patil for Petitioner, Mr. M.N.Deshmukh for Respondent No.1
Mohammed Arshad Iqbal Abdul Rashid
Divakar s/o Bhagwanrao Pawar, Mohammed Ashraf Mohammed Rashid, Rahim Rafiq Ali
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Nature of Litigation
Criminal writ petition challenging order of Sessions Judge transferring complaint cases under Section 138 of the Negotiable Instruments Act without notice to complainants.
Remedy Sought
Petitioner sought quashing of the transfer order passed by the Sessions Judge.
Filing Reason
The Sessions Judge transferred the petitioner's complaint case from one Magistrate to another without giving notice to the petitioner, violating principles of natural justice.
Previous Decisions
The Sessions Judge, Aurangabad, on 4th March 2013, passed an order withdrawing S.C.C. No.3630 of 2012 and S.C.C. No.3699 of 2012 from their respective courts and transferring them to the Judicial Magistrate First Class (Court No.3).
Issues
Whether the Sessions Judge could transfer criminal cases under Section 138 of the Negotiable Instruments Act from one Magistrate to another without giving notice to the complainants.
Submissions/Arguments
The petitioner argued that the transfer could not have been effected without giving notice to the petitioner and the complainants in the other cases, relying on Nirmal Singh v. State of Haryana.
Ratio Decidendi
Transfer of criminal cases without notice to the complainants violates principles of natural justice and is unsustainable. The Sessions Judge cannot effect transfer on administrative side when application is made on judicial side.
Judgment Excerpts
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.
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.
Procedural History
The petitioner filed S.C.C. No.3630 of 2012 before the Judicial Magistrate First Class, Aurangabad (Court No.1) against respondent No.1 for an offence under Section 138 of the Negotiable Instruments Act. Two other similar cases were pending in different courts. Respondent No.1 applied to the Sessions Judge for transfer of all cases to one Magistrate. On 4th March 2013, the Sessions Judge passed an order transferring two cases to the court where the third was pending. The petitioner challenged this order by filing Criminal Writ Petition No. 269 of 2013 before the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
