Thakur Singh and Others vs Ishwar Singh

Agarwala, J.—The petitioners were charged with and convicted of the offence of rioting and theft. On appeal the convictions were set aside and the case was remanded for fresh trial which commenced before a Deputy Magistrate at Jahanabad. When the prosecution evidence was almost complete the Magistrate cancelled the petitioner''s bail. It may be mentioned that the petitioners had been on bail during the original trial as also during the re-hearing uptil 20th November when bail was cancelled as I have just stated. The reason recorded in the order sheet for cancelling the bail is as follows:

It is said that the accused are creating trouble regarding the land in dispute. They have been charged with theft and rioting. The offence is non-bailable but they have been allowed bail. I do not think now they deserve this favour. Therefore I cancel their bail.

On 22nd November the petitioners filed a petition before the Sub-divisional Magistrate stating that the real reasons for cancelling their bail were not disclosed in the order sheet. They alleged that they had been asked by the Court to subscribe Rs. 3 each for the purchase of war fund flags and that they declined to do so and that the Magistrate had said that if they did not do so their bail would be cancelled.

On this petition the Magistrate noted that the facts alleged in it were incorrect and that the real reasons for cancelling the bail were as stated in the order sheet. Thereupon the petitioners moved the Sessions Judge for bail and for transfer of the case from the file of the Magistrate. The learned Judge observed that he saw no reason why bail should have been cancelled and accordingly allowed the petitioners'' bail of Bs. 500 each. As regards the application for transfer, he directed the petitioners to move the District Magistrate. The learned District Magistrate refused to transfer the case and the petitioners then moved this Court. The learned Judge before whom the application was made directed notice to issue and stayed the proceedings in the Court of the Magistrate. In the affidavit filed before this Court the facts stated above are recited in paras. 5 and 6. The Magistrate has furnished no explanation to this Court in reply to this petition. Whether the petitioners were justified in believing that the reason for the cancellation of their bail was that they had refused to purchase the War Fund Flags be true or not, I consider that they had grounds for apprehension that it was their refusal to purchase these flags which led the Magistrate to cancel their bail.

It is extremely improper for a Magistrate who is trying a case to ask the accused to subscribe to funds for public, charitable or any other purpose as such action is liable to be misunderstood by persons who are standing their trial. The petitioners'' advocate states that he does not press for a de novo trial. I direct that the hearing of this case be transferred from the file of the Magistrate before whom it is now at Jahanabad to the Court of such other Magistrate at Sadar as the District Magistrate may direct and that the trial do proceed from the point which it had reached on 20th November 1940, when the petitioners'' bail was cancelled.