Nand Kishore Misra vs Kalika Misra and Others

Kulwant Sahay, J.—This is an application on behalf of the complainant in a case pending in the Court of the Second Officer of Buxar. The application is for transfer of the case from the file of the learned Deputy Magistrate on the ground that the petitioner has serious apprehension that he will not have a fair trial of the case before the learned Deputy Magistrate. There is a further prayer that the order made by the Deputy Magistrate directing the petitioner to deposit the travelling allowance of a witness should be set aside. As regards the first point, namely, the the application for transfer, the grounds urged are that the learned Deputy Magistrate has refused to admit in evidence a certain kabala on the erroneous ground that none of the attesting witnesses or the scribe has been examined. The second ground for the alleged apprehension in the mind of the petitioner is that although in the first instance the learned Magistrate had ordered issue of summons upon a witness Dr. Susilananda Sen, yet when the witness did not appear and the petitioner applied for issue of fresh summons upon him, the learned Deputy Magistrate directed him to deposit a sum of Rs. 50 before he would issue a summons upon the witness. These two facts he says have raised an apprehension in his mind that there will not be a fair trial of the case in the Court of the learned Deputy Magistrate. To my mind these two grounds are not sufficient to create a reasonable apprehension in the mind of the petitioner that the case will not be properly tried by the learned Deputy Magistrate.

As regards the disallowing of the evidence, that may be an erroneous view of the law, but that cannot be a reasonable ground for apprehension that the case will not be properly tried by the learned Deputy Magistrate, As regards his dircting the petitioner to deposit the travelling allowance of the witness, the learned Deputy Magistrate says that when be issued the summons in the first instance he was not aware that the witness was a resident of Purulia and that when an application for fresh summons was made on the second occasion, it was pointed out to him by the Sub-Inspector that the witness was a resident of Purulia and that his summoning would cost Rs. 50 or thereabout and upon this he directed the petitioner to deposit Rs. 50, for the travelling allowance of the witness. The order may be wrong in law. But it cannot be said that the mere fact of the Magistrate''s directing the petitioner to deposit a sum of Rs. 50 can raise a reasonable apprehension in the mind of the petitioner that he will not have a fair trial of the case by the Deputy Magistrate. These are the only two grounds for asking for transfer and in my opinion they are not sufficiency. It was argued by Mr. Jayaswal who appears for the opposite party that the complainant has no locus standi to apply for transfer and reliance was placed upon the case of Jamuna Kanth Jha v. Rudra Kumar Jha (1920) 4 Pat. L.J. 656. Although Mr. Justice Mullick was of opinion that a private person who set the criminal law in motion has no control over the proceeding and has therefore no locus standi to apply for transfer, Mr. Justice Jwala Prasad took a different view and he was of opinion that a complainant was entitled to apply for transfer u/s 526. It is not necessary to decide the question in the present case inasmuch as it has been held that there is no reason to transfer the case.

As regards the second question, namely, whether the learned Magistrate could direct the petitioner to deposit Rs. 50 for travelling allowance of the witness before summons could issue, in my opinion, the order is clearly wrong. No provision in the law has been shown to me under which the learned Magistrate could direct the complainant to deposit a sum of Rs. 50. As was pointed out by Mr. Justice Jwala Prasad in the case cited above, all criminal prosecution are at the instance of the Crown and the Crown is really the prosecutor in a criminal case and all costs ought to be paid by the the Crown for summoning witnesses for the prosecution. No doubt it was open to the Magistrate to consider whether or not the deposition of the witness was material for the prosecution in that case. If he was of opinion that the witness sought to be summoned was not a material witness and the application for summoning the witness was frivolous and vexatious, he might refuse to summon him. But once he thinks that the witness ought to be summoned he cannot compel the complainant to pay his travelling allowance from his own pocket as all costs for the prosecution must be paid by the Crown.

The order directing the petitioner to deposit Rs. 50 as the travelling allowance of the witness must therefore be set aside.