Dwarika Singh and Others vs King-Emperor

Bucknill, J.—This is an application in criminal miscellaneous jurisdiction. The application is made under the provisions of Section 526 Cr. P.C., and Section 107, Govt. of India Act, 1915 and asks that a criminal case which is being triad before Mr. Syed Ahmed Nawab, Magistrate, First Class, of Gaya, should be transferred form that Magistrate to another Magistrate of competent jurisdiction. Apparently the applicants (10 in number) have bean charged with various offences punishable under the provisions of Sections 147 (rioting), 148 (rioting with deadly weapons), 323 (simple hurt) and 324 (causing hurt with cutting weapons) of the Indian Penal Code. It is said that the complainant is the barahil of the 7 annas Tikari Raj. The case is a Crown case and the prosecution is being conducted by the Court Inspector; but it is alleged that the complainant has engaged to watch the case Mr. Waris Nawab, a Barrister who is the brother of the Magistrate; that the applicants say that they are afraid that the presence of Mr. Waris Nawab watching the case in the Court may influence in some way the course of the proceedings. The District Magistrate was applied to for a transfer, but he did not think that the circumstances were sufficient to justify any apprehension.

There are, of course, obvious disadvantages in relatives of Judicial Officers practising in front of them and had Mr. Waris Nawab been prosecuting in the case I should probably have felt inclined to consider that a transfer was desirable. The general view upon matters of this kind, which of course are very often largely matters of professional etiquette and delicacy, has been mentioned in the case of Nityaranjan Mandal and Others Vs. King-Emperor, , where Newbould and Ghose, JJ., in the Calcutta High Court stated that it was undesirable that a member of the legal profession should practise in a Court presided over by a near relation. In their Lordships'' judgment their Lordships observed:

The only serious ground on which this application for transfer is based, is that the muktear who is appearing for the complainant is, as is admitted by the learned Magistrate, a near relation of his. It is undesirable that a member of the legal profession should practise in a Court presided over by a near relation, The complainant in this case is a pleader and we are surprised that a member of that branch of the profession should have engaged a mukhtear whom he knew to be related to the Magistrate who would try the case. The mukhtearnama was not filed until the day on which the case was transferred to this Honorary Magistrate.

In the case of In re the Petition of Basapa (1885) 9 Bom 1672 a Bench of the Bombay High Court held that where the trying Magistrate was the master of the complainant his magisterial jurisdiction was not affected thereby though it was probably expedient that the complaint should be dealt with by another Magistrate.

There is, however, a recent case from Oudh (reported in AIR 1925 348 (Oudh) where Pullan, A.J.C., held that the mere fact that the Magistrate''s son was a pleader and was engaged in a criminal case before that Magistrate, was no ground for granting a transfer to another Magistrate. I do not think that I can subscribe to the proposition laid down in this last decision. I do feel that it is not very seemly or suitable that a practising lawyer should pursue his practice in the Court of a near relative; it gives rise to ideas in the mind of the public which should not have the opportunity of being thus engendered. It might be a gesture well in keeping with the traditions of our profession if Mr. Waris Nawab retired from the case; but as long as he confines his attention to watching the case on behalf of the complainant, I do not think that I have the least ground for ordering or that it would be right to order any transfer. The matter might be different if Mr. Waris Nawab took any active part in the conduct of the prosecution. This application will therefore be rejected.