Decided on December 07,1900

KALI PRASAD Respondents


Ameer Ali, J - (1.) THIS is a rule calling upon the Magistrate of the district to show cause why the case against the petitioner Baktu Singh, pending in the Court of the Honorary Magistrate of Motihari, should not be transferred for trial to Muzzaffurpore or some other district. The circumstances which gave rise to the application upon which the rule was issued are shortly these: It appears that there were disputes going on between the Bettiah Raj Estate and the tenants of one of the mehals subordinate thereto regarding the question of measurement of the land held by the tenants; the latter claiming that the measurement should be made with a rod of 19 inches to a cubit, while the Raj endeavours to measure the lands with a pole of 18 inches. The disputes are or were at the time pending before the settlement officer, and it is stated that one Mathura Prosad, a servant of the Bettiah Raj, came to the tenants and suggested that, in consideration of some bonus to be paid to him, he should bring about a settlement, which is mentioned in the petition. The manager not having accepted the terms the matter fell through, but it is said that the bonus which was paid to Mathura Prosad was not returned. Subsequently Mathura Prosad instigated one Kali Prosad, a Patwari of the Raj Estate, to lay a charge before one of the Deputy Magistrates against some of the tenants, including the petitioner before us, under Secs.141, 379, 352 and 323 of the Indian Penal Code. The Deputy Magistrate, before whom this complaint was made, transferred the case to-the Honorary Magistrate before whom it is now pending, and the petitioner applies to have that case transferred to Muzaffurpore or some other district. The grounds upon which his application is based will be referred to in a moment. The first four paragraphs of the petition have, in our opinion, absolutely no bearing upon the case which the petitioner endeavours to make in this Court. Paras. 5 to 10 (inclusive) deal with the facts to which we have already referred. Paras. 11, 12, 13, 14, 15 and 16 contain the allegations upon which it is contended this case ought to be transferred from the district. It is unnecessary to give them in detail. It is enough to say that the petitioner's allegation is that inasmuch as the Magistrate of the district is, in his capacity as Collector, in charge of the Bettiah Raj Estate, which is now held by the Court of Wards, it is therefore not likely that the petitioner would meet with justice in the district. As regards the Honorary Magistrate, before whom the case is pending, it is alleged that when the case came before him first he gave indications of his bias by certain observations he made that he would send the accused to hajat and cancel their bail, although there was then no evidence on the record to justify his doing so, and further that when, on one occasion, some of the tenants were sent for by the Sub-Inspector of Police, on arrival at the Sub-Inspector's place they found not only the Sub-Inspector but also the Honorary Magistrate concerned, and that, in his presence, the Sub-Inspector strongly advised them to settle their dispute with the Raj, and the petitioner states that the same thing happened on a subsequent occasion. He further states that the Honorary Magistrate " is in private life," whatever that may mean, " the manager of Raj Kumar Babu Bissen Prokash Narain Singh of Motihari in the district of Champaran, and that the latter is or claims to be the reversionary heir to the late Maharajah Sir Harandra Kissore Singh of Bettiah, and that as such he has an interest in the Bettiah Estate which would lead him and therefore his aforesaid manager to wish that the complainant Kali Prasad may win the present case against the petitioner." That is the sum and substance of the allegations upon which this transfer is asked for.
(2.) MR. Hill for the petitioner has referred us to two cases, one In the matter of the petition of J. Wilson (1891) I.L.R. 18 Cal. 247 and the other Dupeyron V/s. Driver (1896) I.L.R. 23 Cal. 495. Learned Counsel laid considerable stress on a passage in the judgment in the latter case which appears in page 495. The learned Judge there says as follows:--It was contended, however, that though the statements may be correct, they do not necessarily show any bias on the part of the Magistrate against the accused. That may be true, but in dealing with applications for transfer like this, what this Court has to consider is, not merely the question whether there has been any real bias in the mind of the Presidency Magistrate against the accused, but also the further question whether incidents may not have happened which, though they may be susceptible of explanation and may have happened without there being any real bias in the mind of the Magistrate, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. Of course, it is not every apprehension of this sort that should be taken into consideration, but where the apprehension is of a reasonable character, then notwithstanding that there may be no real bias in the matter, the fact of incidents having taken place calculated to raise such reasonable apprehension ought to be a ground for allowing a transfer, such as the one that has been asked for." We entirely endorse the observation of the learned Judges in that case, but it will be noticed that they refer in explicit terms to the occurrence of incidents giving rice to a reasonable apprehension in the mind of the person accused that he would not receive a fair or unprejudiced trial. The learned Judges point out that it is not every apprehension that would be taken into consideration, but that the apprehension must be of a reasonable character and must be founded upon distinct incidents (to paraphrase their language) which would really give rise to a reasonable apprehension that there would not be a fair trial. We have given the present application our best considerations, and we find absolutely no circumstance upon which it can be said that the accused had any reasonable ground of apprehension. It is not suggested that the Magistrate of the district had any hand in the initiation of the proceedings, or that he had in any way given directions or instructions either to the police officers or to their subordinates. The Magistrate in his explanation says that he had no knowledge of the matter, until he heard some time afterwards that the case had been instituted. The mere fact that the Magistrate of the district is, in his capacity as Collector, concerned in the management of the Raj Estate is no ground in our opinion for asking for a transfer of the case from the district. As regards the Honorary Magistrate there is no mention of the specific observations made by him in Court which led the accused to form the impression that he would send him to hajat and cancel his bail bond, although there was no evidence of any offence against him on the record. It is suggested that he was present at some conversations which the tenants had with the Sub-Inspector. It is worthy of note that the people who went to the Sub-Inspector have not made an affidavit, certainly it does not appear that the petitioner was one of them. The Honorary Magistrate denies any conversation of the character mentioned in the affidavit occurring in his presence between the tenants and the Sub-Inspector. The Honorary Magistrate no doubt, admits that the Sub-Inspector is a connection of his and he often goes to his house, but that by itself does not seem to us to be a sufficient reason for supposing that the accused will not receive a fair trial from him. As regards the suggestion that inasmuch as the Honorary Magistrate in private life happens to be the manager of somebody else who has some claim to the Bettiah Raj, he is likely to support the complainant and go against the accused, we need only say that the statement is absurd upon its face. The Magistrate of the district says that if a proper application is made to him, he would transfer the case from the file of the Honorary Magistrate to that of some other Magistrate with first class powers so that an appeal might not lie to him but to the Sessions Judge. With this, however, we are not at present concerned. On the whole, therefore, we think no ground has been made out for the application for transfer in this matter and we accordingly discharge the Rule.;

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