- (1.) THESE are two applications by Sunder and others, second party, in two cases -one under sec. 145 and the other under sec. 107 of the Criminal procedure Code, for transfer of the two cases from the court of Shri Naginlal B. Sadasukhi, sub Divisional Magistrate, Shahpura. The grounds given for the transfer of the two cases are that the Magistate is on very good terms with Sheonath, the first party, who is generally seen at the Magistrate's house before each hearing and brings ghee, grain etc. , for the Magistrate from his village, that the Magistrate is simultaneously carrying on proceedings under sec. 145 and 107 Cr. P. C. although the dispute alleged is with regard to the same property, thus causing great inconvenience and harassment to the second party and their companions, that the land is in possession of the second party, yet in order to oblige the first party the Magistrate is bent upon attaching it, that the Magistrate made an order prohibiting the second party from going to and using the land in their possession before any order is passed under the law; and that the Magistrate issued warrants and orders of attachment of property without any summonses being served upon the second party.
(2.) THE reply of the learned Magis-trate has been received and he has denied that he is on any terms, good or bad, with the first party or that the first party ever came to his residence. He has also denied that he is offered ghee or any other thing by the first party. He further says that he has as yet issued no orders of attachment and that he is taking separate proceedings under sec. 145 from the very beginning. He adds that the second party and their pleaders put various obstacles in the proceedings and did not allow the court to hear the arguments on 2nd August 1951. THE learned Magistrate also says that he has no idea of attaching the property unless circumstances make it incumbent for the preservation of peace. He finally says that the second party were summoned for 21st June, 1951 but they did not appear and sent a Vakil for representing them. Later on after many adjournments were procured the case was fixed for 22nd Aug. , 1951 for arguments on the application for interim security. On the said date inspite of the fact that Pt. Rameshwar Parsad Vakil for the second party was present, they applied for adjournment to produce Shri Hanuman Sharan Advocate for arguments. As a lot of time had already been spent in service and other things the court thought it proper to adjourn the case to any day suitable to the second party, provided they were prepared to give an undertaking of not going to the disputed land and doing any act subversive to maintenance of peace up to the date to which the case was adjourned. Magistrate admits that there is no provision either under sec. 107 or sec. 145 for prohibiting any party from going to the land in dispute. A counter - affidavit has been filed on behalf 6f the opposite party denying the allegations about the first party being on visiting terms with the Magistrate or visiting his house on date of hearings. It has also been denied that anything by way of ghee or other articles is supplied to the Magistrate by the opposite party. I have heard the learned counsel for the applicants and also the learned Government Advocate. After giving my careful consideration I find that although the learned Magistrate might have committed some irregularity, this is not on account of any prejudice towards the applicants. It is a matter of common experience that in cases under sec. 107 or sec. 145 some irregularity or another is often found in the proceedings of the lower courts. It is certainly to be regretted and sooner the Magistrates realise that it is their duty to faithfully follow the provisions of these two sections, the better it is. But the party against whom such orders are made have got a remedy by way of appeal or revision to the higher courts. Simply because a Magistrate makes some mistake in passing an order in certain proceedings it cannot be said that the order is the outcome of prejudice against one party or the other. In protracted proceedings the Magistrates have to. make several orders from time to time and it may be that one or more of them might go against a particular party. This alone however will not entitle the party against whom such orders are made to come to this court for transfer of the case. The important consideration to be kept in mind is that the conduct of proceedings in the lower court is such that it might create reasonable apprehension in the mind of the party that he would not get fair trial in the Magistrate's court. If one or two orders are made against a particular party he might apprehend that the Magistrate was going against him but the apprehension cannot be said to be reasonable. Therefore, even supposing that the orders, which have been alleged by the applicants to be illegal or irregular are actually so, the applicants have a remedy by way of revision to this court. They can also point out the mistake to the Magistrate himself who, I hope, will act strictly according to law in the case. It was held in A. I. R. 1948 oudh 103 (Chunnilal Vs. Emperor) that "the position of a person being tried of a serious offence is such as to create impressions in his mind which might not exist in the mind of a normal person but in order to justify a transfer the court must be satisfied that there is reasonable ground for apprehension in the mind of the accused. A mere feeling which is not justified by the action of the court trying the case cannot be sufficient". In A. I. R. 1941 Lah. 367 (Chunnilal Lachhmandas vs. Emperor) it was held that "an accused is only entitled to transfer if he has a reasonable apprehension of an unfair trial. An apprehension of being convicted is no reason for a transfer". Thus it would be found that in a case for transfer the court has to be satisfied that the applicants could have reasonable apprehension regarding fair trial. As has been said above, I do not find that such an apprehension can be created by some of the orders complained against by the applicants even if they are not strictly in accordance with law. Both the applications are dismissed. .;