Jagdamba Sahay vs Emperor

Mullick, J.—The petitioner, while in the service of the Bhabua Municipality in the Shahabad District, is alleged to have committed criminal breach of trust in respect of certain property belonging to the Municipality and is being prosecuted before the Sub-Divisional Officer of Bhabua for an offence u/s 408, I.P.C. In the course of the proceedings before him the Sub-Divisional Officer of Bhabua reported, in a letter dated 20th October 1927, to the District Magistrate of Shahabad that much unpleasantness and bitter feeling would be aroused if the case were tried at Bhabua and for the reasons contained in that letter the District Magistrate, on 27th October 1927, acting u/s 528, Criminal P.C. transferred the case to the file of the Sub-Divisional Magistrate of Saseram.

In the present application before me it is urged on behalf of the petitioner that he was not heard by the District Magistrate before the order of transfer was made and that if the case is tried at Saseram there will be practically a denial of justice inasmuch as Saseram is a long distance from Bhabua and he has no friends there. It is further urged that the petitioner is a resident of Bhabua. and has friends who are legal practitioners there. It is quite clear although the District Magistrate does not say so in so many words, that the reason for the transfer is an apprehension that there will not be a fair and impartial trial at Bhabua. It is admitted that the Municipal Commissioners themselves do not wish to prosecute the petitioner and the case was taken up by the police upon information supplied by the District Magistrate. Therefore, although it is not our practice to interfere with an order u/s 528 made by a lower Court in the exercise of its jurisdiction,

I think in this case there are reasons for interfering with the order of transfer to Saseram. The convenience of the accused must be regarded in considering the question whether a fair and impartial trial is likely to be held. Here it is not denied that the accused will be prejudiced in the conduct of his defence if the case is tried at Saseram and so far as the interests of'' the Crown are concerned it makes no difference whether the case is tried at Saseram or any other place outside the district such as Patna.

The learned advocate for the accused does not object to the transfer of the case to Patna where the accused has relations and friends and the Crown also has no objection. Having regard to all the circumstances, I direct that the case be transferred from the file of the Sub-Divisional Magistrate of Saseram to the file of the District Magistrate of Patna who will either try the case himself or make it over to some Subordinate Magistrate if he so thinks fit.