Choudhary Ravindra Nath Roy and Others vs The State of Bihar and Another

P.K. Sinha, J.—This is an application for transfer of Complaint Case no. 319(C)/94, Trial no. 849 of 1994 pending in the court of Sri B. K. Tiwari, Judicial Magistrate, first class, Madhepura, to a court at Patna. The learned counsel for the petitioners and learned Additional Public Prosecutor have been heard.

From the record it appears that notice issued to opposite party no. 2, Sunil Kumar Jha, a practising Advocate at Madhepura and the complainant, was served upon him but on calls neither opposite party no. 2 nor any one on his behalf appeared to oppose the application.

The facts coming out from the submissions of the learned counsel for the informant, Sri P. N. Pandey, and as emerging from the application itself are that one Nawal Kishore Jha expired leaving behind two sons and four daughters, and a will which caused several litigations between the two parties, namely, the brothers on one hand, and the sisters and widow of the deceased on the other. Opposite party no. 2 is brother-in-law of Rajendra Kishore Jha, son of late Nawal Kishore Jha who had filed the instant complaint case in the court of Madhepura in which the petitioners, as accused, were summoned. It is also submitted that besides probate case pending in a court at Patna (opposite party no. 2 not a party to that) two criminal cases between the parties are pending at Patna in one of which opposite party no. 2 is accused and in the other he is informant. The grounds submitted for transfer of the case are that opposite party no. 2, being a practising Advocate, is exerting his influence to deny a fair trial to the petitioners so much so that he was prevailing upon the lawyers there not to defend the petitioners in the criminal case pending there. Second ground is that opposite party no. 2, being a local man, also poses danger to the life and person of the petitioners.

Besides other submissions my attention has been drawn to Annexure-3 which is order sheet of the court below and an application filed on behalf of Advocate for the petitioners/accused in the case at Madhepura, namely, Ram Nan-dan Yadav, Ganesh Kumar, Jai Shankar Sah and Sarojani Kumari in which it was mentioned that the complainant was himself a local advocate and was desparately approaching them not to work for the accused for which those Advocates were feeling delicacy in defending the accused. In such circumstance, by filing the application the court was requested to accord permission to them to withdraw themselves as Advocates of the accused persons/ petitioners. A copy of this petition was also served upon opposite party no. 2 who appears to have noted that the allegations were wrong. However, opposite party no. 2 has not chosen to appear before this court to deny the allegations and put forward his points. The aforesaid application, prima facie, proves that because of the approaches made and influences exerted by opposite party no. 2 four Advocates, who were chosen by the. petitioners to defend themselves in the aforesaid complaint case had to seek permission of the court concerned for allowing them to withdraw from defence. A criminal case involves questions of liberty of the accused of which no citizen can be deprived of except by process duly established by law. To safeguard this constitutional right, law permits an accused to select a counsel of his choice and be defended by him in the court of law. Annexure-3 to this application, prima facie, confirms the apprehension of the petitioners that they may be denied a fair trial if the case continues at Madhepura as the lawyers selected by them have come out seeking permission, under the circumstances mentioned above, to allow them to withdraw from the defence of the petitioners On this ground alone this application is fit to be allowed. In view of aforesaid, this application is allowed and Complaint Case no. 319(C)/94 (Trial no. 849 of 1994) is withdrawn from the court of Sri B. K. Tiwari, Judicial Magistrate, first class, Madhepura, and is transferred to the court of Chief Judicial Magistrate at Patna where two criminal cases between the same parties are pending with direction that the Chief Judicial Magistrate, Patna, will either himself try the case or transfer the same for trial to a court of competent jurisdiction subordinate to his court.