1 APPLN-229-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 229 OF 2011 Pushp Holdings Ltd. ... Applicant (Orig. complainant) vs. The State of Maharashtra & Anr. ... Respondents Mr. M.V.Swar,Advocate, for the applicant Mr.Rajesh More, APP, for the respondent No.1 - State. Mr. Virendra H. Parikh, Advocate, for respondent No.2. CORAM: J.H.BHATIA,J. DATE : 22nd March, 2011. P.C. 1. Heard the learned Counsel for the applicant and the learned Counsel for the respondent. 2. The applicant is a complainant in Criminal Case No.666/S/2003 pending before the learned Special Metropolitan Magistrate and Judge, Small Cause Court, Mumbai. This application is moved for transfer of the case from the file of the Special Metropolitan Magistrate on the ground that the Judge appears to be prejudiced and biased against the applicant. It is contended that on 11.11.2010, the matter was listed on board to be taken at 2.30 p.m. The representative of the 2 APPLN-229-11.sxw applicant went to the Court at 2.30 p.m. At that time, the Advocate for the respondent No.2 was present. On that day, because of the strike of the staff of the Court, the doors of the Court were closed and outside the Court room, board of that day was placed with the next date, being 8.12.2010. According to the applicant, after noting the date, when he was leaving the Court, the Advocate for the respondent No.2 asked him to wait as he wanted to change the date. Thereafter, the advocate for the respondent No.2 made a call to the said Magistrate from mobile and the Magistrate himself opened the door of his chamber and came out. At that time, the Advocate for the respondent No.2 made a request to him for change of date. According to his convenience, the Magistrate gave the next date as 22.11.2010. The applicant requested for 25.11.2010 which was more convenient to him, but the Magistrate did not agree. Due to this incident, faith of the applicant was shaken and, according to him, he is not likely to get justice and fair trial from the said Magistrate. Due to this, he approached the C.M.M. for transfer of the said case from the file of the Special Metropolitan Magistrate Mr. V.N. Vaidya. That application was rejected. Then the applicant approached the Sessions Court. That transfer application was also rejected. He has file this third application for transfer of the matter. 3. Mr. Virendra Parikh, the learned Counsel for the respondent No.2, 3 APPLN-229-11.sxw who is present before the Court, was also the advocate for the respondent No. 2/accused before the trial Court. He denied that he had made any call to the Magistrate on his mobile and he has also produced the data showing that no such call was made by him. According to him, this is a frivolous application and without justification this transfer application is filed. 4. Looking to the facts disclosed in the application and cited above, even if it is presumed that the Advocate for respondent No.2 had made a call from his mobile, to the learned Magistrate, still it is impossible to draw an inference that the Magistrate is biased. From the contents of this application, it is clear that when the representative of the applicant went to the Court, the doors of the Court were already closed. On the notice board, the daily board of that day was pasted with the next date. When the representative of the applicant was to leave the Court after taking the date, the advocate for respondent No.2 asked him to wait because he wanted to make a request for change in the date. It shows that the Advocate for respondent No.2 had nothing secret and he wanted the presence of the applicant when he would make a request for change in date. After that he called the Magistrate. Because the staff was on strike and there was nobody to open the door, the Magistrate himself opened the door of the chamber and came out. In presence of the representative of the applicant, the Advocate for 4 APPLN-229-11.sxw respondent made a request for change of date and according to his convenience, the date was changed. In the given circumstances, merely because the Magistrate himself opened the door and came out and then in presence of both the parties changed the date, it is impossible to find anything wrong in the conduct of the learned Magistrate. The approach of the applicant to seek transfer is absolutely unjustifiable. By filing such frivolous application for transfer before 3 courts are after another, the applicant not only tried to harass the respondent No.2/accused, but has also wasted the valuable time of the Court which could be utilised for some other important work. Such tendency has to be curbed in the intrest of justice and smooth functioning of the Courts. 5. For the aforesaid reasons, the application stands rejected with cost of Rs.10,000/-, to be deposited with the State Legal Authority within one week from today. (J.H.BHATIA,J.)