Bashir Ali and Others vs Emperor

Das, J.—This is an application for transfer of a case from the file of the Sub-Divisional Magistrate of Araria, to the file of some other Magistrate subordinate to the District Magistrate of Purnea. Having given my most anxious consideration to the able arguments advanced by Mr. Athar Husain on behalf of the petitioners, I have come to the conclusion that no case has been made out for a transfer.

It appears that certain villagers sent a petition to one Mr. Duff complaining that the petitioners were in the habit of taking illegal gratification in connection with their official duty, Mr. Duff appears to have forwarded the petition to the Sub-Divisional Officer. Other petitions to the same effect were sent to the Postmaster-General and Director General of Post Offices. All these petitions appear to have found their way to the District Magistrate. The Sub-Divisional Officer himself made an enquiry and sent his report together with the petition forwarded by Mr. Duff to him to the District Magistrate. Upon all these informations received by the District Magistrate of Purnea, he directed the trial of the petitioners in the Court of the Sub Divisional Officer of Araria u/s 161, Indian Penal Code, or in the alternative u/s 409, Indian Penal Code.

The first point taken on behalf of the petitioners is that though they have been put on trial in respect of three specific items, the trial Court has admitted evidence of similar but unconnected instances of alleged offences on behalf of'' the prosecution in spite of the petitioners'' protest. Mr. Athar Husain says that the petitioners have been seriously prejudiced by the reception of this inadmissible evidence, but he very fairly and properly admits that he cannot show that in admitting the evidence, the learned Magistrate was unfair or partial in any way. It is a problem of some nicety whether evidence of similar but unconnected instances is admissible in a case where the petitioners have been put on trial in respect of three items only, but I do not think that I should fetter the judgment of the trial Court in any manner, specially as it is not suggested that in this matter the Court has been in any way unfair to the petitioners. The Court may have committed an error of judgment in admitting the mass of evidence, but an error of judgment is no ground for a transfer.

The next point urged is that the Court has consistently refused to give the petitioners informations relating to their alleged offence. The complaint is that the evidence recorded by the Sub-Divisional Officer and the Criminal Investigation Department and their reports have not been produced in the case. It appears that the Court did write a letter to the District Magistrate asking him if he would produce the papers called for by the defence. The reply of the District Magistrate was to the effect that the evidence was missing and the reports were confidential. This may be true or false, but it does not show that the Court has any bias against the petitioners or that there should be a reasonable apprehension in the mind of the petitioners that there is such bias. I express no opinion on the question whether the petitioners are entitled to the copies of such reports. If they are so entitled, the failure, to furnish them with copies of such reports would undoubtedly affect their conviction, if ultimately they are convicted, but they do not affect the present application.

One or two other small points have been argued but, in my opinion, they are not material for the purpose of this application. I would reject this application.