Sheodhari Rai vs Jhingur Rai and Others

Kulwant Sahay, J.—The petitioner lodged an information at the Dumraon police station charging the opposite parties with having been members of an unlawful assembly and with having forcibly looted the crops of the petitioner which were being conveyed from the fields to his kalihan. They were also charged with having caused hurt to several persons of the petitioner''s party in the course of the loot of the crops. The police investigated the case and submitted a charge sheet against the opposite parties under Sections 147 and 379, Indian Penal Code, and the opposite parties are being tried before the Sub-Divisional Magistrate of Buxar. The present application is made on behalf of the petitioner for transfer of the case from the file of the Sub-Divisional Magistrate of Buxar on the ground that during the course of the trial the Magistrate has made certain observations which have led the petitioner to apprehend that he will not get a fair trial in the Court of the Sub-Divisional Magistrate. It appears that in the course of the examination of the prosecution witnesses the learned Sub-Divisional Magistrate made certain observations which went to show that he was not favourable to the prosecution. For instance, when one of the witnesses stated that the opposite party had looted the crops while the police were in the village, the Magistrate is said to have observed: "Were they fools that they committed an act before the police?" Then again, in the course of the examination of one of the witnesses, the learned Sub-Divisional Magistrate is said to have observed that the accused had filed tanazas in respect of the fields in dispute and, that, therefore, the petitioner wanted to get rid of them by having them sent to jail. During the examination of another prosecution witness the learned Sub-Divisional Magistrate is said to have observed as follows: "How much money have you paid to the police as bribe?" and when the witness denied having given a bribe to the police, the learned Magistrate asked him: "How much money have you taken for giving evidence?" It is further stated that after the examination of the prosecution witnesses the Magistrate wanted to frame charges under Sections 147 and 379, Indian Penal Code, but that an application was made on behalf of the prosecution before him stating that the case made out disclosed an offence u/s 395, Indian Penal Code and that the opposite parties ought to be charged with an offence u/s 395, upon which he is said to have torn out the paper upon which the charge was being written. The learned Magistrate has sent an explanation in which he does not deny having made the observations as stated above during the examination of the witnesses. Under the circumstances it is clear that the petitioner has cause for reasonable apprehensions in his mind that the case is not being tried in a fair way by the Sub-Divisional Magistrate. The petitioner went to the District Magistrate and applied for the transfer of the case from the file of the Sub-Divisional Magistrate u/s 528, Cr. P.C. The learned District Magistrate observes that the remarks said to have been made by the Sub-Divisional Magistrate seem to have been uttered in a moment of annoyance and that at the worst they show a lack of temper or discretion, but do not show that the Magistrate is prejudiced. I am not prepared to say that there was any reason for the Magistrate being annoyed and that the remarks and observations alleged to have been made by him, and which have not been denied by him, were uttered in a moment of annoyance. I am, therefore, clearly of opinion that this is a fit case to be transferred from the file of the Sub-Divisional Magistrate.

A preliminary objection has, however, been taken on behalf of the accused persons to the effect that the petitioner has no locus standi to make this application for transfer inasmuch as he is not a complainant in the case, but that it is a police case and that the case is being conducted by the Public Prosecutor on behalf of the Crown. Reliance has been placed upon the observations of Mullick, J., in the case of Jamuna Kanth Jha v. Rudra Kumar Jha [1920] P.H.C.C. 42, where he held that a private person has the right to set the criminal law in motion, but he has no control over the proceedings and that he is not entitled to apply for the transfer of a case u/s 526, Cr. P.C. Mr. Justice Jwala Prasad, however, who was another member of the same Bench, was of a different opinion. He held that the person at whose instance a criminal case is lodged is entitled to apply for transfer u/s 526, but his rights are subordinate to those of the Crown; in other words, that if the Public Prosecutor or the person who is conducting the prosecution on behalf of the Crown is unwilling to have the case transferred, the person at whose instance the case was started has no right to get the case transferred. Clause (3) of Section 526 provides that the High Court may act either on the report of the lower Court or on the application of a party interested or on its own initiation. In the present case the question is, whether the petitioner is a "party interested" within the meaning of Clause (3) of Section 526. It has been shown by Mr. Justice Jwala Prasad in the judgment referred to above that a private person who lodges an information before the police of a certain offence and a criminal prosecution is started upon that information, is a person who is interested in the prosecution within the meaning of Clause 3 of Section 526. Reference has been made to Clause (8) of Section 526, which provides that the Public Prosecutor, the complainant or the accused is entitled to ask the Magistrate for a postponement in order to enable them to move the High Court for a transfer of the case, and the word used there is the "complainant" and not a person interested. It has been tried to be argued on behalf of the opposite parties that the words "party interested" in Clause (3) have the same meaning as the word "complainant" in Clause (8) of Section 526. I am, however, unable to agree to this contention. If the Legislature intended that the words "party interested" in Clause (3) should have the same meaning as the word "complainant" in Clause (8) there is no reason why there was any difference introduced by the Legislature in the two clauses. If it was intended that the "party interested" could only be the complainant there is no reason why the word "complainant" was not used in Clause (3) as it was used in Cl; (8). I am, therefore, of opinion that, as held by Mr. Justice Jwala Prasad in the case referred to above, the present petitioner is a party interested within the meaning of Clause (3) of Section 526 and he is entitled to apply for transfer of the case. It may be noted that there is no objection on behalf of the Crown to the transfer, and the Crown does not appear to oppose the application.

It has further been pointed out by the learned vakil for the petitioner that the present application is really an application, u/s 439, for revision of the order of the District Magistrate, and is not a substantive application for transfer u/s 526. The application before the District Magistrate was apparently made under the provisions of Section 528, Cr. P.C., and the learned District Magistrate having refused to make the transfer the petitioner has come up to this Court against that order in revision, and if that is so, then the question whether the petitioner is entitled to apply for transfer u/s 526 does not arise. Having regard to the circumstances of the case, I am of opinion that this is a fit case in which a transfer ought to be ordered. The case is, therefore, transferred from the file of the Sub-Divisional Magistrate of Buxar to the file of the District Magistrate of Arrah, who will either try the case himself or make it over to another Magistrate competent to try it.