Mahadeb Marwari and Others vs Kishun Lal Marwari

Bucknill, J.—This is an application for the transfer of a case from the file of William Raha, Magistrate of Dhanbadj with second class powers, to the cognizance of some other competent Magistrate in the same place under the following circumstances.

The petitioners here were tried before Mr. Raha for offences under Sections 323 and 448 of the Indian Penal Code and were sentenced to various penalties. There was, however, an appeal against this decision, made to the Deputy Commissioner of Dhanbad who, finding that the proper legal procedure, particularly with reference to Section 342 of the Criminal Procedure Code, had not been complied with by Mr. Raha, remanded the case to him for re-trial from the point from which proceedings had begun to be irregular. I may also mention incidentally that another case (which is here described as the counter-case between these parties or some of them) had also been tried and disposed of by Mr. Raha in the early half of this year (that is to say, in April 1921) while his present judgment was dated the 18th of July last. I have read the judgment which Mr. Raha gave in July, and no doubt he has expressed a very strong opinion upon the guilt of the accused persons. The application is now made to me that it is desirable and fair in the interests of the accused persons that the matter should go back for a re-trial to some officer other than Mr. Raha who has already convicted and sentenced these applicants and had as well dealt with another case between the parties. It is pointed out to me, by the learned Vakil for the respondents here, that there is ample authority for saying that because a Magistrate has tried some other case involving somewhat similar facts possibly between the same parties, that in itself does not constitute necessarily any ground why a case should not be remanded to the same Magistrate for re-trial by him. Similarly, too, I am far from saying that because a Magistrate has already convicted a person of an offence and the accused, for some reason or other, has to be re-tried, that Magistrate is incompetent to try the case over again. On the other hand, I think that, where it is possible, it is highly desirable that such a re-trial should not be taken by the officer who has already expressed his final opinion upon the matter, It is quite true that an endeavour may be made (and no doubt is made) to keep the mind entirely free from bias, and to eject from it any preconceived ideas which may have been formed in general by what has taken place at the earlier trial. But those are after all counsels of perfection, and, I am bound to say, that if I was iu the position of having been convicted and sentenced of an offence by an individual, I should feel the greatest apprehension if my case vas remanded to the same person for a re-trial.

I am satisfied that in this case the fairest and the most proper thing for all concerned will be to allow the application and to have the case re-tried by some other competent Magistrate in the Dhanbad Sub-Division, and I order accordingly.