Babu Chhanu Prasad Singh vs Emperor

Jwala Prasad, J.—This is an application for the transfer of the case from the Court of the Sub Divisional Magistrate of Supaul, a similar application made to the District Magistrate having been refused. The application to this Court reproduces substantially the allegations made in the application to the District Magistrate for the transfer of the case. We have heard Counsel on both sides and have carefully considered the allegations made by the petitioner and the explanation which was offered by the Magistrate in connection with the application made to the District Magistrate. No further explanation has been given to this Court and the Magistrate relies upon the explanation given by him to the District Magistrate.

It seems to us that from the circumstances disclosed in the applications and what transpired in Court during the trial of the case, the accused may reasonably apprehend that he will not receive proper justice at the hands of the Sub-Divisional Magistrate of Supual. Whether his apprehensions are true or not it is not for us to decide; it is enough, for the transfer of the case that he has reasonable ground for such an apprehension. Whereas the several petitions riled by the petitioner before the Sub-Divisional Magistrate during the trial show want of propriety, the Magistrate'' remarks on various occasions on the other hand exhibit lack of judicial temper. We need not enter into a detailed discussion as regards the various allegations made in the petitions. We think that the case is one which should be tried by another Magistrate.

The case is accordingly transferred to the head-quarters of Bhagalpur to the file of the District Magistrate who will himself try the case or have it tried by any competent Magistrate subordinate to him.

The accused u/s 350 of the Code of Criminal Procedure Code has a right to demand that the witnesses or any of them be summoned and re-examined when the case will be tried by the Magistrate to whom it will be transferred for trial. The accused can, however, waive his right and Mr. Sinha, who appears for the petitioner, assures us that the accused will not insist upon the examination again of the witnesses already examined in the case and that the trial now in the Court to which the case will be consigned will continue from the stage at which it had reached in the Court of the Sub-Divisional Magistrate of Supaul. It may be observed that the Sub-Divisional Magistrate has refused to summon the witnesses for the defence. It will be open to the accused to make a further application before the Magistrate to whom the case will now be transferred and it will be for that Magistrate to decide the question upon merits. The order of the Sub-Divisional Magistrate of Supaul upon this particular point will not, therefore, stand in the way of a further application being made by the accused to examine defence witnesses.

Ross, J.

I agree.