Lal Bahadur Raut and Others vs Emperor

Mohamad Noor, J.—This is an application for transfer of a criminal case from the Court of the Sub-divisional Magistrate of Hajipur to a Magistrate at Muzaffarpur. The petitioners would have been well advised had they moved the District Magistrate in the first instance. But perhaps it was due to an accidental oversight that they have come straight to this Court. However, I do not wish to throw out the application on that ground alone, especially as there is no appearance on behalf of the Crown to oppose the application. I very much regret that on perusal of the proceedings of the learned Magistrate and the allegations made in the affidavit most of which have not been denied by him, I have no option left but to transfer the case from his Court.

The first and foremost ground for transfer is stated in para. 11 of the application which runs thus:

That the learned S.D.O. fixed 11.30 a.m. to 5 p.m. and again from 5.30 till 9 or 10 p. m. for hearing of the case although the defence lawyers who are Mahomedans protested owing to Ramzan but the learned S.D.O. paid no heed to it.

I was reluctant to believe this allegation but I am sorry that it seems to be true though there is no such order in the order-sheet. An allegation to this effect was made in the petition for time filed by the accused before the learned Magistrate to enable them to move this Court for transfer of the case but he made no comment upon it. The allegation was again repeated in the application to this Court. The learned Magistrate in his explanation to the District Magistrate has not referred to it, and the petitioners are therefore entitled to proceed upon the footing that it is not ill-founded.

I must express my strong disapproval of this order of the Magistrate. He does not seem to have realized that the order made such a demand for youthful energy and vigour as few members of the bar could be reasonably expected to meet. The order is all the more objectionable on account of the fact that the lawyers were fasting. He also did not realize that a disregard of the reasonable request of the fasting lawyers might appear like wounding their religious susceptibilities however unintentionally. Sitting till late in the evening, and working for long hours may sometimes be inevitable when work is heavy and lawyers are expected to co-operate with the Court and they generally do so if only in their own interest. But cross-examination is anxious work which puts a strain upon the lawyer or lawyers who have to conduct it, and it is quite unreasonable to require a fasting, lawyer to go on with such work for ten hours or so with a break of half an hour only. I do not know whether the learned Magistrate usually works from 11.30 A.M. to about 10 P.M. or whether it was due to a temporary rush of work that he fixed these hours or whether these long hours were fixed for this case only and if so the reason for doing so. He has not vouchsafed any explanation. If the order was not due to temporary causes and if his work is so heavy that the learned Magistrate is compelled to sit for ten hours a day usually, he needs relief.

I may further point out that a tired lawyer is of little use to his client and can hardly be of much assistance to the Court itself. It may also be doubted how far the presiding officer will be able to do full justice to the parties before him if he goes on sitting for ten hours a day with a break of half an hour only.

The second thing which attracted my attention is an earlier order of the learned Magistrate of 27th November 1937. He was informed of the illness of the lawyer who had conducted the cross-examination for the accused on the previous day and was to continue it. It is obvious that accused cannot be blamed if unfortunately their lawyer who is briefed to cross-examine witnesses suddenly falls ill. This is beyond their control. It appears that the learned lawyer concerned did conduct the cross-examination on 26th November 1937; but he fell ill that very night and the application for adjournment on the ground of his illness was supported by a medical certificate from the Assist. Surgeon of Hajipur. The learned Magistrate ought to have given the accused a reasonable opportunity of engaging and instructing another lawyer who could conduct the cross-examination if the illness of the lawyer already engaged was going to be a prolonged one. There was a large number of witnesses and it takes time to get ready for cross-examination.

In my opinion the refusal to adjourn the case was entirely unreasonable. While on the one hand it is the duty of a Magistrate to see that the trials of cases are not unduly prolonged or unnecessarily adjourned and public time wasted and witnesses, harassed, on the other hand reasonable requests for adjournment in order to enable the accused to meet the charge against them ought not to be lightly refused. By the two orders referred to above, the learned Magistrate has laid himself open to the charge, though unwittingly, that he was not prepared to give the accused reasonable facilities for conducting their defence. These two orders are, in my opinion, sufficient for an order of transfer, which I propose to pass.

There are however some more facts which have been stated by the accused in their application. One of them is mentioned in para. 4. It is to the effect that the learned Magistrate disallowed questions about some omissions by the witnesses in their previous statement to the police. The explanation of the learned Magistrate in this connexion is not clear. I cannot understand whether the statement which the cross-examiner suggested that the witness did not make was in fact in the diary or not. Whatever may be the case, the question was perfectly legitimate. A witness who had been examined by the police can reasonably be asked whether a particular version which he was giving in Court was given by him to the police. If he did give it, he is not contradicted. But if he did not, or if there is no mention of it in the diary, the value to be attached to the omission will depend upon the circumstances and may even mean the rejection of the version. The question in any case would be perfectly relevant and legitimate. However, rejection of the question cannot be a ground for transfer. Most likely it was due to the learned Magistrate not appreciating the position. Then there are allegations in paras. 14, 15, 16 and 17 of the application.

The learned Magistrate does not deny the correctness of these allegations but says that they refer to his attempt to see that witnesses did understand the question. As to the allegation in para. 14, though it is the duty of every Court to see that the questions are properly understood by the witnesses and the cross-examining lawyer does not take undue advantage of the foolishness or simplicity or the want of understanding of a witness in the witness-box, a general order that each question must be repeated three times irrespective of the consideration whether the witness has understood the first question or not and irrespective of the standard of intelligence of the witness can hardly be justified. Regarding the allegations in paras. 15, 16, 17 and 18, as specific instances have not been mentioned in the application I am unable to express any opinion. The Magistrate trying an accused person must realize that a lawyer defending him is in a very difficult situation. On the one hand, he owes a duty to his client to do all he legitimately can to help him in the trial, and on the other he is naturally disinclined to go against the wishes of the Court.

It is therefore necessary that orders which make the task of a defending lawyer doubly difficult should not be passed.

I am satisfied that the attitude and orders of the learned Magistrate have created a reasonable apprehension in the minds of the accused that they would not get a a fair and impartial trial at his hands. There is no reason to doubt that the learned Magistrate will do his best to come to a correct conclusion if he continues the trial, but (as has been often observed) it is necessary not only that justice should be done but that it should appear that justice is being done. I think the ends of justice require that the case should be transferred from the file of the learned Magistrate.

I transfer the case to the District Magistrate of Muzaffarpur to be tried by him or by any one of his Subordinate Magistrates competent to try it as he may direct.