Ghulam Mohiuddin vs Emperor

The petitioners in this application apply to us to set aside an order of transfer made by the District Magistrate of Bhagalpore, dated the 22nd March 1919, transferring the trial of this case from the file of Mr. Lane to the file of Mr. Beal, a Joint Magistrate now stationed at Bhagalpore.

The petitioners are charged with the offence of having directed that an assault should be committed on a convict and whereby the convict died as a result of the injuries that he received.

The charge was preferred against the accused by a Deputy Magistrate by the name of Mr. Girish Chandra Datta on the 4th of March of the present year. The case was transferred from the file of Mr. Datta to the file of Mr. Lane at the request of the accused by the District Magistrate of Bhagalpore, Mr. Johnston.

At the time the transfer was made from the file of Mr. Datta to the file of Mr. Lane, there was no other available Magistrate in the District of Bhagalpore except Mr. Lane who was capable of trying the case; accordingly Mr. Lane was selected as the proper officer to try the case by Mr. Johnston, even though his duties were primarily connected with the treasury, Mr. Lane being Treasury Officer.

Mr. Lane accordingly under the order of the District Magistrate was seised of the case on the 6th of March. Mr. Beal joined as a new Joint Magistrate in Bhagalpore on the 6th of March or immediately after the 6th of March. The presence of Mr. Beal in Bhagalpore in no way induced Mr. Johnston to make any transfer to Mr. Baal of the case of the petitioners from the file of Mr. Lane on the ground of general public convenience.

The case proceeded before Mr. Lane, and two witnesses were examined for the prosecution. Mr. Lane made two orders both of which were objected to by the Public Prosecutor; the first was an order to the Superintendent of the Bhagalpore Jail directing that the prisoners, namely, the petitioners and their Counsel should be allowed to inspect the Jail for the purpose of enabling them to appreciate the nature of the defence which they would have to make, by an inspection of the Jail precincts and surroundings. Secondly, the Public Prosecutor objected very strongly to the ruling of Mr. Lane that the accused''s Counsel was not bound to cross-examine the Crown witnesses immediately on the conclusion of their examination in chief. In our opinion the order of Mr. Lane to the Superintendent of the Jail was an improper order and one that should not have been made.

It would appear that these two rulings of Mr. Lane perturbed somewhat the equanimity of the Public Prosecutor; who forthwith on the 10th of March applied to the District Magistrate by a petition seeking to have this case transferred from the file of Mr. Lane to the file of some other Magistrate and urging these two objections as the grounds in support of his petition.

The learned District Magistrate made an order transferring the case, not directly on the two grounds taken by the Public Prosecutor in his petition, but stating generally that in his opinion in the interest of public convenience it was desirable that the transfer should in fact be made, inasmuch as Mr. Lane as Treasury Officer could not devote his entire time to the disposal of the case and it would be a hardship both upon the Crown and the prisoners to have the proceedings unnecessarily delayed, and accordingly Mr. Johnston transferred the case.

Application was made to us to have the order of transfer set aside; and we came to the conclusion that it was desirable that a Rule should be issued to enable us to see what was the real reason operating in the mind of the District Magistrate for granting the transfer. Was it the reason suggested by the Public Prosecutor?

No doubt a District Magistrate has very wide powers of transfer conferred upon him by section 528 of the Code of Criminal Procedure, but in the exercise of these powers he must act in a judicial manner and sot capriciously or arbitrarily.

Neither the District Magistrate nor the learned Government Advocate appearing on behalf of the Crown suggests that Mr. Lane is incapable either legally or physically from discharging his duties and continuing to try this case; and the only ground put forward, why he should not do so, is that he has very little time at his disposal by virtue of his duties as a Treasury Officer. That objection can be easily overcome; because it is open to the District Magistrate to allow Mr. Lane to discontinue his treasury duties for a short time to enable him to dispose of the case of which he now has seisin under the order of the District Magistrate himself, dated the 4th of March. No ground that we can see has been urged by Mr. Johnston in his explanation by way of cause shown that would properly justify us in holding that his order of transfer, dated the 22nd March 1919 was made and based on an exercise of sound and reasoned judicial discretion.

Mr. Manuk endeavoured to attach an importance to this application by asserting that a grave question of principle was involved. Certainly his argument did not impress us Mr. Manuk suggests that the vice of the method of the procedure adopted by the Public Prosecutor in this case to secure a transfer was that it was virtually it proceeding which enabled the District Magistrate as prosecutor to secure and nominate his own forum for the trial of the accused which might prejudicially affect the accused''s right of fair trial. There is no ground whatsoever for this assertion, nor do the facts disclosed remotely justify the making of such an allegation.

We are satisfied that the learned Magistrate ought not to have transferred this case from the file of Mr. Lane on the ground relied on by him for doing so. There is no impeachment of Mr. Lane''s willingness and ability to discharge his duties in trying this case and his impartiality has not been impugned.

Accordingly we set aside the order of Mr. Johnston, dated the 22nd March 1919, and we direct that the case be restored to the file of Mr. Lane for disposal and the trial do proceed de die in diem until it is concluded.