Halim and Another vs Emperor

Kulwant Sahay, J.—This is an application for transfer of a case pending before the Sub-Divisional Magistrate of Barh. The application is not opposed on behalf of the Grown. Although it is certain that the Sub-Divisional Magistrate will not in any way be influenced in the decision of the case by anything outside the record yet the petitioners allege that they have serious apprehension that they will not get a fair trial at Barh. It is admitted in the explanation of the learned Magistrate that there is a certain amount of communal feeling at Barh over this case.

The petitioners allege that they were unable to persuade the defence witnesses to appear before the Sub-Divisional Magistrate and give evidence in their favour as they are afraid that if they do so, there will be danger as regards their safety at the hands of the infuriated Hindu mob. The petitioners also point out that the Sub-Divisional Magistrate directed the heavy bails to be furnished by the petitioners and in fact the amount of bail fixed originally, namely, Rs. 1,000 each was so heavy that the petitioners could not furnish the same, and after the learned Magistrate had reduced the amount to Rs. 500 only one of the petitioners furnished bail and it was only after the amount had been further reduced by the District Magistrate that the other petitioners furnished bail.

The learned Sub-Divisional Magistrate in his explanation submits that this heavy bail was demanded in order to ensure against absconding which might have caused farther tension between the communities ending in a riot. He goes further and says that he had, as a matter of fact, gone to the length of suggesting to the lawyers appearing for the accused that possibly it were batter for the accused to remain in hajut for the sake of their personal safety. It is contended on behalf of the petitioners that if the Magistrate could be influenced on the question of bail by consideration of matters like this, they are not sure whether ho may not be influenced in the actual trial of the case by these considerations.

I am, however, certain that the learned Magistrate will not be influenced by such consideration in the trial of the case: but all the same, having regard to the facts set out in the application I am of opinion that it is proper that the case should be transferred from Barh. The transfer will be made to the District Magistrate of Patna who will either try the case himself or make it over to any other competent Magistrate at Patna to try it.

Mr. Yunus, on behalf of the petitioners, says that he does not desire a de novo trial at Patna and that the trial will continue from the stage at which it has reached in the Sub-Divisional Magistrate''s Court at Barh.