Awadh Singh vs Puran Kandu

Jwala Prasad, J.—This is an application by the accused for the transfer of his case from the file of the Sub-Divisional Magistrate of Samastipur.

The accused as well as the complainant lodged information to the Police with respect to an occurrence, each accusing the other of assault u/s 323, Indian Penal Code. The Police Sub-Inspector, after consulting the Sub Divisional Officer, reported that the case lodged by Puran Kandu "was non-cognizable u/s 323 of the Code" and he was told by the Sub-Divisional Officer "to return the case as such." This was accordingly done by the Police Sub Inspector.

Both parties thereafter lodged complaints before the Sub Divisional Magistrate who, by his order, dated the 3rd November 1920, on the back of the petitions, made over both ''the cases to the Sub-Deputy Magistrate for disposal.

Mr. Atkins was interested in the case lodged by Puran Kandu against the accused and he, in the course of his interview with the Magistrate, enquired about the matter and at the same time referred'' to his previous mention of it to him. Afterwards Mr. Atkins wrote a slip to the Magistrate, as a result of which the Magistrate withdrew the cases of the complainants from the file of the Sub-Deputy Magistrate and cancelled his previous orders, transferring the cases to the Sub-Deputy Magistrate, and summoned the accused upon the complaint of Puran Kandu, and in the case lodged by the accused, the petitioner in the present case, against Puran Kandu and others, he passed an order;

Await the decision of the counter-case.

The petitioner thereupon applied to the District Magistrate for the transfer of his case from the file of the Sub-Divisional Officer, but the District Magistrate summarily rejected the application with the remarks that be had been through the petition and could not discover any reasonable ground for apprehending that the accused will not have a fair and impartial trial.

The petitioner has accordingly some to this Court. The application is opposed by the learned Assistant Government Advocate and in addition the Sub Divisional Officer has himself submitted an explanation objecting to the transfer of the case from his file.

The explanation given by the Magistrate, read with his order on the back of the petition, dated the 10th December 1920, is sufficient, in my opinion, to transfer the case from his file. He says:

The Sub-Inspector consulted me of his own accord about the case lodged by Puran Kandu when I happened to be at Rosora, and as he reported the case non-cognizable, Section 323, T without examining the record of the case told him to return the case as such. Mr. Atkins saw me on the day in question about his candidature for the Provincial Assembly,

As he was leaving the Court, he asked whether one Puran Kandu had lodged a complaint in a case regarding which he, Mr. Atkins, had told me his hearsay version some days previously. I said that I thought he had not. After he had left my Court, Mr. Atkins sent in a slip stating that the case had been lodged and had been sent to the Sub-Deputy Magistrate for disposal....My reasons for this action are given on the bask of the petition for transfer filed before me. From what I had seen of the injury inflicted on Puran Kandu, it appeared that the case was one that should not be sent directly to a Second Class Magistrate for disposal. I, therefore, recalled the case admittedly without recording my reasons in writing.

On the bask of the petition the reason stated by the Sub Divisional Officer for re sailing the case from the file of the Sub Deputy Magistrate is as follows;-

It was brought to my notice that this case was one of a somewhat serious assault.

On a reference to the injury reports in the present case, it would appear that the petitioner Awadh Singh had four injuries on his person as compared with one injury on the person of Puran Kandu, the complainant. On the ground of the seriousness of the assault it would have been more pertinent for the Sub Divisional Officer to have summoned the complainant in the present case, who was accused in the counter case, instead of the petitioner. The Sub Divisional Magistrate, when passing: his initial order taking cognizance of the complaints and making over both the cases to the Sub-Deputy Magistrate for disposal, had only the complaint petitions and probably the injury reports. At that time he was of opinion that the complaints could be properly tried by the Sub-Deputy Magistrate. It is not known how it was subsequently brought to his notice that the assault upon the complainant Puran Kandu was of a somewhat serious nature.

The accused petitioner in the present case can very well suspect of this information having been given to the Sub-Divisional Magistrate by Mr. Atkins and possibly in the slip written by Mr. Atkins to the Magistrate of which reference has been made in his explanation. We have not either the slip or its copy on the record of the case. It is admitted that Mr. Atkins had several conversations with the Magistrate before the complaints were lodged and also after they were made over to the Sub Deputy Magistrate for disposal. Mr. Atkins further had the audacity of talking over and writing to the Sub-Divisional Officer about the case, particularly when he knew that it had passed out of the hands of the Police and had come to the Magistrate in the shape of complaints lodged by both the parties. This the Magistrate ought not to have allowed Mr. Atkins to do. The petitioner apprehends that he had not the advantage with the Magistrate as Mr. Atkins. In the circumstances of the case the petitioner has a reasonable apprehension that he will not receive a fair trial at the hands of the Sub-Divisional Officers.

The principle that should govern applications for transfer of criminal cases was laid down in the case of Serjeant v. Dale (1877) 2 Q.B.D. 558 : 46 L.J.Q.B. 781 : 37 L.T. 153.. Lush, J., at page 567 observed:

The law, in laying down this strict rule, has regard not sO much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of the Tribunal and so to promote the feeling of confidence in the administration which is so essential to social order and security." Further on he says-- "We are anxious not to be misunderstood in using this language. No right-minded person does or can for a moment entertain the thought that the Right Reverend Prelate, who was sailed upon to act in this case, was or could be influenced by any consideration of personal interest in the proceeding. Such an idea was emphatically, though unnecessarily, repudiated in the source of the argument. The probability is the fact was not present to his mind. The applicant stands upon his legal right, and sails upon us to give effect to it, and we feel constrained to hold that the initiatory proceedings which are made essential to give jurisdiction to the Court of Arahes were, by reason of the Bishop being patron of the benefice, contrary to the Statute and void, and that the Court had no jurisdiction to enter upon the inquiry.

The words of that learned Judge might well be quoted with propriety in the present case. Vide also the case of Mohammad Mian v. Emperor 52 Ind. Cas. 54 : 20 Cr. L.J. 566.

I do not for a moment impute any bias in the mind of the Sub-Divisional Officer who had the seizin of the case, but events which occurred in the case may reasonably raise an apprehension in the mind of the accused that he will not receive a fair and impartial trial at the hands of the Sub Divisional Officer.

I have no hesitation in withdrawing the case from his file. The facts were clearly set forth in the petition lodged before the District Magistrate, but inspite of that he summarily rejected the petition stating that he did not find any reasonable ground for the accused to apprehend that be will not have a fair and impartial trial at the hands of the Sub Divisional Magistrate. The attitude adopted by the District Magistrate in the present case entitles the accused to claim a transfer of his case from that District. I, therefore, direct that the case be transferred to the District of Muzaffarpur, which is the nearest District, and further direct that the District Magistrate of that District will either try it himself or make it over to some other Magistrate competent to try it.