Chander Kuer and Others vs Emperor

Dhavle, J.—This is an application for the transfer of a case pending on the file of a second class Magistrate of Chapra. It was a case under Sections 147 and 354, etc., I.P.C., and was originally on the file of another Magistrate. "When four prosecution witnesses were left to be cross-examined, that Magistrate was transferred and the case was accordingly sent to the file of the Magistrate from whom the accused now seek a transfer.

On 24th July 1940, the Magistrate examined one defence witness, Baijnath Singh. Some defence witnesses were absent, and the service returns of the summonses issued to them showed that the summonses had been handed over to Baijnath, thanks to the carelessness of the peon. The Magistrate ordered fresh summonses to issue and also ordered:

Issue notice to Baijnath Singh to show cause why he accepted the summons of the witness and why he failed to make them over when he had accepted them. Cause to be shown by 6th August.

It is not very easy to follow what the Magistrate meant by "issuing notice" to Baijnath Singh in this connexion. In his explanation to the District Magistrate, the learned Magistrate admitted that he had heard Baijnath Singh on the 6th but the order sheet of the case does not show anything of the kind. On 7th August, the accused put in a petition before the Magistrate asking for time to move the High Court for a transfer, and in this application they began by saying that after his deposition Baijnath Singh had been threatened with harassment by the Magistrate. It is not necessary to reproduce the terms in which the threat is said to have been uttered, but it is quite clear that the Magistrate did say something of the kind, though in the order sheet of 7th August he only admitted that he had no doubt told the witness that he would be "prosecuted for his negligence and for spoiling the Court''s time."

The learned Government Pleader who appears against the petitioners before me has not been able to show what power the Magistrate had for prosecuting the witness for negligence. The Magistrate further noted that Baijnath had shown cause without stating that he had done it on a previous day "and necessary orders would be passed." These "necessary orders" are actually to be found at the end of the order of that very day : "Cause shown by Baijnath Singh is not satisfactory. He is however let off with a warning." It is difficult to resist the conclusion that the Magistrate did not know what to do with Baijnath Singh and did give him a threat of some kind. Ifc is hardly likely that it was threat to prosecute for negligence, because even the Government Pleader has not been able to lay his finger on any provision of the Penal Code for a prosecution for neglige''nce in the circumstances.

On 7th August, when the learned Magistrate dealt with the case of Baijnath after receiving the petition filed by the accused for time to move the High Court, he ordered a warrant of arrest to issue against a defence witness, Gopal Singh, the service on whom had been done "by hanging." The learned District Magistrate took the view that it was competent to the Magistrate to do so u/s 90(b), Criminal P.C. but at least two observations must be made in this connexion.

In the first place the power to issue a warrant of arrest under the section indicated depends on due service of the summons, and in the present case there was nothing before the Magistrate to show that the requirements of Section 70, Criminal P.C. had been complied with. Secondly, the Magistrate took this action after becoming cognizant of the application for time to move this Court for a transfer. Rightly or wrongly, the petitioners had indicated their principal ground for a transfer in that application. The Magistrate therefore knew what it was that, was being alleged against him.

For him in these circumstances to issue a warrant of arrest notwithstanding that this Court was going to be moved for transfer seems to me to have been on the face of it very ill-advised and well calculated not merely to cause an apprehension in the mind of the accused that the Magistrate was prejudiced against him, but to go far to suggest that the Magistrate was in fact in that condition. The position is not much improved by the observations that the learned Magistrate felt himself at liberty to make in his order of 7th August, in connexion with the application for time to move the High Court. He began by saying that "the grounds taken are frivolous," and in another place he said that "the transfer petition has been filed only to delay the ends of justice," and he carefully refrained from saying that he had not given to Baijnath Singh the threat that the accused openly charged him in their application to the Magistrate himself with having given to that witness. It is regrettable that the learned Magistrate placed himself in this unfortunate position. Whatever his knowledge of procedure may be, he could not have failed to notice that handling the defence witness in that manner at the time indicated was bound to cause a reasonable apprehension that the accused would not get a fair trial at his hands.

That there was some misunderstanding in his Court and that the learned Magistrate was not altogether alone to blame, however, appears from another incident to which reference is made in the application to the District Magistrate and has also been made in the application to this Court, though on an examination of the record the point was given up by the learned advocate who appears for the petitioners. This incident refers to the circumstances in which Babu Bhagwati Prasad, clerk of the Court of Wards, was discharged on 24th July. The petitioners made much of the fact that on the hazri of this witness their lawyer had'' noted that the witness was given up as he had not brought the papers.

Their case was that the qualification "as he had not brought the papers" was put in by the lawyer in order to defeat the Magistrate who wanted the defence merely to give the witness up. The learned Magistrate points out that there was no reason why he should do so, and that in fact he did not do it; and in support he refers to an application of the Court of Wards'' clerk which is on the record and from which it appears that the clerk said that he had come with the papers called for. The learned Magistrate in his explanation to the District Magistrate said that the defence lawyer "is certainly guilty of gross professional misconduct." It is not necessary on this occasion to examine whether it was a case of misconduct or not, but it is by no means certain that the Magistrate''s notions of professional misconduct are not on a par with his ideas of the negligence of a witness. It is, however, quite clear that for some reason or other the Magistrate was not able to do his work without unnecessary friction and that he had no very clear idea of his own powers. This might or might not by itself suffice to make a transfer of the case desirable, but in my opinion the petitioners have succeeded in establishing that they have a reasonable apprehension that they will not get a fair trial at the hands of the learned Magistrate.

The petitioners seem from the beginning to have been anxious not to spin out the proceedings. They made it perfectly clear when the case was transferred to the present Magistrate that they did not want a de novo trial. While asking for a transfer now, they have taken up the same position that they do not want a de novo trial but are anxious to finish the case without further delay or harassment. They also ask for a transfer not to another Magistrate in Chapra but to some Court in Motihari on the sole ground that Motihari is much nearer to their village and the villages of their witnesses than is Chapra.

Let the case be transferred to the file of such competent Magistrate as may be nominated by the District Magistrate of Champaran.