Rajendranarayan vs Bhagaban Mahapatra and Others

Sinha, J.—This is an application for transfer of a criminal case pending before the learned Subdivisional Magistrate of Kendrapara. The petitioner happens to be the proprietor of the Kanika estate. According to the prosecution case, the three accused persons are alleged to have stolen or misappropriated a large sum of money from the estate treasury. The accused No. 3 at first appeared in the role of the informant. Later on, after police investigation, he has been transposed to the category of an accused. The first two opposite parties are said to have been in the service of the petitioner as Potdars, and the opposite party No. 3 was employed under the petitioner as the officer in charge of the estate treasury. After police investigation charge sheet was submitted against these three persons. The case has not yet proceeded to trial. The application on behalf of the petitioner is that he is deeply interested in the result of this prosecution because it was at his instance that the information was lodged with the police for prosecution of the culprits, whoever they may have been. According to the investigation of the police the three accused persons are said to have been concerned in the alleged crime.

A number of allegations have been made against the Subdivisional Magistrate in whose file the case is at present pending. The learned Subdivisional Magistrate has submitted his explanation which would certainly make it out that he has no reasons to have any personal bias in the matter one way or the other. He has very naturally informed this Court that personally he has no objection to the case being transferred to any other competent Magistrate. I have heard counsel for the parties, including the Advocate-General for the Crown and Dewan Bahadur Lachmidhar Mahanty for the first two opposite parties. The third accused, though nerved with notice of this application for transfor, has not thought fit to appear in this Court.

In my opinion, considering all the aspects of the case, though there is no reason to think that the learned Magistrate will not impartially try the case, this is a case which should be transferred to another Magistrate, preferably at Cuttack, so that the trial may be had in a more placid atmosphere.

The learned Advocate-General took a preliminary objection to the competency of this application for transfer on the ground that the petitioner has no locus standi to move this implication. Ordinarily the complainant or the Public Prosecutor or the accused are parties interested in the result ox a criminal case. But, as already indicated, in this case the first informant has now come to occupy the position of one of the accused. Ho was an agent of the petitioner when he lodged the first information before the police. There can be no doubt that the information was lodged before the police at the instance of the petitioner, though not by him personally, but by one of his employees. In the special circumstances of this case, in my opinion, the petitioner does fulfil the requirements of the law inasmuch as he is a "party interested". In that view of the matter, I would overrule the preliminary objection to the maintainability of the application for transfer.

I wish to add that this order of transfer of the case from the file of the Subdivisional Magistrate of Kendrapara to the file of any competent Magistrate, to whom the case may be entrusted by the District Magistrate at Cuttack, does not in any way involve any imputation against the integrity or the impartiality of the learned Subdivisional Magistrate himself. The ruling principle in such case always is that not only justice should be done, but it should appear to have been done, though it may be that justice could have been administered as impartially at Kendrapara as it will be at Cuttack. But, taking into consideration the events which have happened and which are liable to be misconstrued by interested parties, it is better for the administration of justice that the case should be heard and decided by a Magistrate who should have never heard about the contending parties in any other connection. The rule is accordingly made absolute.