[1.0] Present Special Criminal Application under Articles 226, 227 of the Constitution of India read with Sections 407, 408 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant - original opponent to quash and set aside the impugned order dated 12.07.2011 passed by the learned Sessions Judge, Sabarkantha, at Himatnagar below Exh.10 in Criminal Miscellaneous Application No.349/2011, by which the application submitted by the applicant - original opponent to transfer Criminal Miscellaneous Application No.25/2011 from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa has been rejected.
[2.0] Respondent No.2 wife has filed Criminal Miscellaneous Application No.25/2011 against the applicant husband, who is a practicing lawyer, for maintenance before the Court of learned JMFC, Bayad. That it appears that earlier the learned Magistrate passed an order/orders on adjournment application submitted by the applicant and even the order came to be passed by the learned Magistrate, Bayad to close the right of the applicant to lead evidence, which was subsequently reopened on payment of cost. The applicant apprehended that the learned Magistrate is having bias against him and he will not get complete justice and therefore, he submitted the application before the learned Sessions Judge being Criminal Miscellaneous Application No.349/2011 to transfer the proceedings of maintenance application from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa. That the aforesaid application has been dismissed by the learned Sessions Judge, Sabarkantha by impugned order holding that there is no justification to transfer the proceedings of the maintenance application from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa. Being aggrieved and dissatisfied with the order passed by the learned Sessions Judge, the applicant - original opponent has preferred the present Special Criminal Application.
[3.0] Shri Mahesh Bhavsar, learned advocate appearing on behalf of the applicant has vehemently submitted that looking to the earlier orders passed by the learned Magistrate, Bayad against the applicant, there is a reasonable apprehension on the part of the applicant that learned Magistrate is having bias against the applicant and that he will not get full justice and therefore, the learned Sessions Judge ought to have transferred the case from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa. Shri Bhavsar, learned advocate appearing on behalf of the applicant has made submissions on merits making grievance against earlier orders passed by the learned Magistrate on adjournment application submitted by the applicant and/or even the order passed by the learned Magistrate closing the right of the applicant to lead the evidence. Shri Bhavsar, learned advocate appearing on behalf of the applicant has submitted that earlier orders passed by the learned Magistrate, Bayad demonstrate bias against the applicant and therefore, the apprehension on the part of the applicant with respect to bias are well-founded. Therefore, it is requested to allow the present Special Criminal Application.
[4.0] Having heard Shri Bhavsar, learned advocate appearing for the applicant and considering the submissions made on behalf of the applicant as well as the grounds on which the applicant has sought transfer of maintenance application from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa, it appears to the Court that there is no justification at all in transferring the maintenance application from the Court of learned JMFC, Bayad. Merely because earlier some orders came to be passed by the learned Magistrate against the applicant either on adjournment application and/or passing order to close right of the applicant to lead the evidence, which according to the applicant were not correct, is no ground to allege bias against the learned Magistrate. It is to be noted that when earlier the right of the applicant to lead evidence was closed, subsequently the same was reopened on payment of cost. As such on aforesaid ground it cannot be presumed that the learned Magistrate is having bias against the applicant. The apprehension on the part of the applicant who is a practicing lawyer is absolutely imaginary and is not well-founded. There is no basis for such an apprehension. As observed by the Hon'ble Supreme Court in the case of Vikas Kumar Roorkewal v. State of Uttarakhand & Ors. reported in (2011)2 SCC 178, there must be reasonable apprehension on part of party to the case that justice may not be done, mere allegation that there is apprehension that justice will not be done cannot be basis for transfer. Considering the above and in the facts and circumstances of the case, no illegality has been committed by the learned Sessions Judge rejecting the application submitted by the applicant to transfer the maintenance application being Criminal Miscellaneous Application No.25/2011 from the Court of learned JMFC, Bayad to the Court of learned JMFC, Modasa, which calls for interference of this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.
[5.0] In view of the above and for the reasons stated above, there is no substance in the present application which deserves to be dismissed and is, accordingly, dismissed.
(M.R.
Shah, J.) *menon Top