1. This is an application under the provisions of Section 526, Criminal P. C., for transfer of Misc. case No. 4 of 1949 from the f-le of Mr. Mahiuddin Ahmed, Magistrate, 1st class, Tezpur, to some other Court of competent juisdic tion at Tezpur. In Pdra. 8 of the application, it is stated that the applicant has come to know that the trying Magistrate is closely related to the Superintendent of Excise and that he stayed with the Superintendent for about a fortnight when he first visited Tezpur, and that the trying Magistrate went to Balipara to try the case in the same car with the Superintendent, the oar belonging to the Superintendent; the applicant was, therefore, apprehensive that he would not get a fair and impartial trial at the hands of the trying Magistrate, Mr. Mahiuddin Ahmed.
2. It appears that an application for transfer of this case was in the first instance made to the District Magistrate, Darrang, under Section 628, Criminal P. C., but the learned District Magistrate refused to transfer the case by his order dated 21st March 1949.
3. We called for the remarks of the trying Magistrate with reference to the statements contained in Para. 8 of the application, and the learned Magistrate has stated:
It is a fact that the Superintendent of Excise is related to me, and that I stayed with him for about fifteen days on my transfer to Tezpur for want of a house there. I believe, as Superintendent of Excise, he is interested in all excise and opium cases, only so far as his official capacity is concerned. He cannot have any personal interest in this cage or any other excise or opium oases. It is also a f Act. that while going to Balipara for local trial of this case, the Superintendent of Kxciae, being a relation of mine and there being enough space in his car, he gave me a lift. In this connection, my report to the District Magistrate ma; kindly be perused.
4. Now, we have no doubt that the learned Magistrate would not be influenced by his relationship with the Superintendent of Excise, nor would the fact that he travelled to the place of trial with the Superintendent in the latter's car, deflect him in any manner from the performance of his judicial duties impartially. We have, however, to bear in mind that justice must not only be done, but must appear to be done. We do not think it can reasonably be said that where an excise case is pending against an accused person and the Superintendent of Excise, a relation of the trying Magistrate, comes with the trying Magistrate to the place of trial in the same oar, the accused person would have no apprehension at all that he would not get a fair and impartial trial. We do not think it is desirable that an accused person should be perturbed by circumstances such as these which may be quite innocent when explained. We think a Magistrate ought to refrain from giving any cause to an accused person likely to be so misunderstood as to engender a belief that he would not get a fair trial.
5. On the principle that justice Should not only be done but must appear to be done, we think this case ought to be transferred from the file of the learned trying Magistrate.
6. We would accordingly direct the District Magistrate, Darrang, to send this case for trial to some other Magistrate within his jurisdiction, competent to try it. The application for transfer is accordingly allowed.