J.P.Mitter, J. - (1.) This is an application for transfer of a criminal case from the Court of Shri J. M. Ghosh, Magistrate, 1st Class, Midnapore, to some other Court. There is also a prayer for setting aside an order of the said learned Magistrate, dated 26-11-1954, whereby the evidence or P.W. 3, a Government handwriting expert, was expunged.
(2.) The applicant is the Income-tax Officer of Midnapore. Upon his complaint, opposite party No. 2, Saroj Kumar Roy, a practising lawyer of Midnapore, was sent up to stand his trial upon a charge of perjury under Section 193, Penal Code. The proceeding concerned commenced in March, 1954. The Public Prosecutor of the district was engaged on the complainant's behalf to conduct the prosecution.
(3.) The said P.W. 3, the handwriting expert whose evidence was expunged, was undoubtedly a very material witness in the case. It appears that on 23-4-1954, the date fixed for prosecution evidence, the said handwriting expert was absent. His inability to appear in Court on that date had, however, been intimated to the Court through a radiogram transmitted by the Criminal Investigation Department, Government of West Bengal. Owing to the absence of the said witness, the case had to be adjourned to 26-4-1954, when the said expert was in fact examined-in-chief. On the next date of hearing namely, 15-5-1954, the Public Prosecutor was absent, though certain prosecution witnesses were in attendance. There being no lawyer to examine these witnesses, the case had to be adjourned to 11-6-1954. Owing to the absence on that date of some of the prosecution witnesses, the case had to be adjourned once more. After two more adjournments, the further hearing of the case was fixed for 3-9-1954. On that date the learned Magistrate passed the following order : "No other P.W. is available. I do not think it proper to wait indefinitely for any further prosecution witness. Heard both sides on the framing of charge on the evidence already on record. A charge under Section 193, I.P.C, is framed against the accused who pleads not guilty. To 29-9-54 for the cross-examination of the P.Ws. and for further P.W. if any. Summon all the P.Ws. for this day. Accused as before.";