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N.C. Bose Vs. Probodh Dutta Gupta - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantN.C. Bose
RespondentProbodh Dutta Gupta
Excerpt:
- - the case has dragged on a weakly existence for about two' years. any person knowing that an offence has been committed may complain about it, though he is not the victim. bhik chand' air 1926 all 307 (c) laid down that in a charge under section 304, ipc which js instituted on a police report and in which the prosecution is in the hands of the public prosecutor, exceptionally strong grounds would have to be shown before the high court would exercise its powers of transfer at the instance of a private complainant when the responsible authorities are satisfied that there is no ground for withdrawing the case from the court which is hearing it. went further and held that high court can, if it thinks proper, act upon the application of a witness and would certainly do so if it is..... ram labhaya, j.1. this is a petition for transfer of a g. r. case-no. 5/52, pending in the court of mr. s. sarkar magistrate, 1st class, gauhati. mr. n. c. bose,. manager of tile united jiauk of india is the petitioner beiore us. fie reported to the police that probodn dutta gupta, accused (opposite party) had by fraud and manipulation of accounts committed criminal breach of trust in respect of a sum of us. 11,816/- belonging to die bank. alter investigation the accused was chargesiiueted for offences, under sections 409 and 477a, penal code. the case has dragged on a weakly existence for about two' years.2. the petitioner's case is that he was being,, cross-examined by the advocate for the defence on 17-7-1953. during the course of the cross-examination, the learned magistrate.....
Judgment:

Ram Labhaya, J.

1. This is a petition for transfer of a G. R. Case-No. 5/52, pending in the Court of Mr. S. Sarkar Magistrate, 1st Class, Gauhati. Mr. N. C. Bose,. Manager of tile United Jiauk of India is the petitioner beiore us. fie reported to the police that Probodn Dutta Gupta, accused (opposite party) had by fraud and manipulation of accounts committed criminal breach of trust in respect of a sum of Us. 11,816/- belonging to die bank. Alter investigation the accused was chargesiiueted for offences, Under Sections 409 and 477A, Penal Code. The case has dragged on a weakly existence for about two' years.

2. The petitioner's case is that he was being,, cross-examined by the Advocate for the defence On 17-7-1953. During the course of the cross-examination, the learned Magistrate addressing the-deieuce counsel said: 'Do not expose him Mr., Choudhury'. The petitioner asserts that the remarks insinuated that he was in complicity with the accused in the commission of the crime, though there was evidence to show that the alleged offence-had been committed before his appointment as agent of the Gauliati branch of die bank. It is further alleged that when the Chief Accountant was being cross-examined, some remarks adverse to the prosecution were made and the learned Magistrate indicated that the witness was untrustwordiy. The case came up for argument on 18-8-1953. It is at that stage that it is alleged that the learned Magistrate observed that the prosecution and specially the officers of the accounts branch of the bank were accomplices in the crime and that these remarks were repeated two or three times. The advocate for the State of Assam submitted that the Court had already formed an opinion adverse to the prosecution. The learned Magistrate then told the advocate that he could apply for transfer if he so desired and the advocate stated' that he would. The Magistrate then lost temper and warned the advocate that he would draw up proceedings against him. On these facts it is urged that the petitioner has reasonable grounds for the apprehension that justice may not be done to him in the case.

The learned Counsel for the accused has raised a preliminary objection. He contends that die petitioner has no locus standi to apply for transfer of the case. He is not a party interested with it the meaning of Clause 3 of Section 526 even though he as an agent of the bank could report the commission of the offence to the police,

3. The High Court may order the transfer of a case Under Section 526 on the report of the lower Court or the application of a party interested or on its, own initiative. The question is whether an aggrieved person who sets the machinery of law in motion] by a report to the police is a party interested within' the meaning of Clause 3. Mr. Sarma argues that such' a person is no more than a mere witness. He completely loses his status as a party when the State on his information and after necessary investigation undertakes to prosecute someone who is believed to be an offender,

(3a) An aggrieved person has two modes of obtaining redress when a cognizable offence is committed. He may go to the Magistrate direct with a complaint. He would then be a complainant and a party interested for purposes of el. 3 of Section 526 all through the entire course of the proceeding. Is he divested of that status or attribute if he takes his case to the Magistrate through the police? When the police sends up an accused for enquiry and trial before a Magistrate the conduct of the case is to a very large extent in the hands of some officer of the Government. The person aggrieved who made the report may have some rights, but the control over the conduct of the prosecution is substantially in the hands of the agency which the State provides for die purpose. The party seeking redress does secure a substantial advantage if he goes to the police rather than to the Magistrate direct. A disinterested party (the State) prefers the charge and takes on itself die obligation of proving it. It also incurs necessary expenditure for the purpose. But the aggrieved person cannot drop the proceeding at his pleasure. In the Sessions Court the public prosecutor is in charge of the prosecution and a counsel instructed by a person interested in the result can only act under his -directions (vide Section 270). The public prosecutor has the right to withdraw from the prosecution, but with the consent of the Court and if the withdrawal is permitted after the charge has been framed, the accused has to be acquitted.

4. On the other hand the aggrieved person at whose instance a person is accused of an offence and is chargesheeted, also retains some rights in relation to the proceeding initiated by him though by a report to the police. He can as of right compound certain offences even though cognizable. In such cases he need not ask any permission from the Court. There are also offences where he may compound with the permission of the Court, The right to compound an offence can only be in a party to the proceeding. It would be open to that party to terminate the proceeding for pecuniary consideration and even without it. A person who has the right to terminate the proceeding with or without the permission of the Court, would be very much a party interested. The fact that the control of the prosecution is in the hands of the State agency does not divest him of his status or position as a party in such cases. It follows that merely because the State has taken over the control of the prosecution to a substantial extent, the aggrieved person does not become a third party or a stranger to the proceeding. He remains a party.

5. If a criminal Court imposes a sentence of fine, it can order (vide Section 445) that the whole or part of the fine realised be applied in the payment to any person of compensation for any loss or injury caused by the offence, when in the opinion of the Court substantial compensation is recoverable by such a person in the civil Court. This section is not limited in its application to cases initiated by a complaint. An aggrieved party though not having the control over the conduct of the prosecution, can act redress of the wrong done to him in cases falling under this section. Loss of control over the conduct of the prosecution, it would appear, does not necessarily entail loss of all rights as a party.

6. Both the complainant and the informant to die police have no right of appeal against orders of acquittal. The provincial Government alone' may appeal. But both the complainant in a complaint case and police informant in a case challaned by the police retain the right to move the High Court by a revision petition for setting aside the order of acquittal, if the Government has not appealed. Interference in such cases may be rare. But the power of the High Court to set aside an order of acquittal on revision on the motion of the aggrieved party is undoubted. It has been exercised in some cases though occasions for its exercise are admittedly rare. The High Court may also be moved for enhancement of sentence and in a suitable case a sentence may be enhanced at tie instance of the complainant or the informant.

7. The absence of a right of appeal does not therefore indicate that the informant to the police is not a party to the case. His position is no worse than that of the complainant who admittedly is a party to the case and a party interested. They both stand on the same level. Section 417 makes no distinction between the cases initiated by a police report and those instituted by a complaint-It merely confers a privilege on the accused. Whether the aggrieved party had the control of the conduct of the prosecution or not, its requirement is that the highest executive authority should decide whether there should be an appeal or not and the highest judicial authority in the State should determine whether the acquittal ought to be set aside. It is the public prosecutor alone who can file an appeal under this section. This provision gives rise to no inference that an aggrieved person who sets the machinery of law in motion ceases to be a party after lodging his first information report, for, he has got remedies for obtaining reversal even of the order of acquittal when the State decides not to appeal.

8. It is noteworthy that even the complainant in a case instituted on complaint does not exercise complete or exclusive control on the proceeding initiated by him. He shares the control with the Court on grounds of public policy. He cannot withdraw even a summons case without the permission of the Court. In a warrant case instituted upon a complaint the absence of the complainant after the charge has been framed, does not terminate the proceeding. It will continue and has to be disposed of on the merits by the Magistrate even if the complainant has lost all interest in the matter. Even before the charge the accused may be discharged by reason of the absence of the complainant only if the offence may be lawfully compounded or is not a cognizable offence. Discharge is not possible in cognizable cases which are not compoundable even at that stage. The Court would enquire in the offence, notwithstanding the absence or default of the complainant. The Slate therefore exercises control over the proceeding through the Court.

9. The State is responsible for maintaining peace and order. It frames laws for the purpose. These laws have to he enforced. When some law is transgressed not only an an individual is wronged the law has also been infringed. The State therefore is as much interested as the individual wronged. The victim of the offence has to set the machinery of law in motion. He may do it by a complaint; to the Magistrate or by a report to the police. The State is interested in seeing that the offender is brought to book. It is for this reason that it is not necessary that a person making a complaint should himself be an aggrieved party. Any person knowing that an offence has been committed may complain about it, though he is not the victim. But the aggrieved person is equally interested with the State. It is he who demands justice. The law that is infringed was meant for his protection. The interest of the aggrieved person is certainly not less. It may be more. He having been wronged, remains a party. In cognizable cases sent up by the police, right to conduct the prosecution case vests in the officer appointed for the purpose but the State does exercise some control even in complaint cases. The conclusion that flows from the above discussion is that the control over the conduct of the prosecution even to a very substantial extent in cases sent up by the police, is by itself not enough or conclusive for holding that an aggrieved party who has sought redress by a report to the police as a party ceases to be so as soon as the police chargesheets the accused. I think the informant has or possesses for the purposes of the proceeding the quality of the leopard who could not change his spots. He continues in his original character to the end. He is a party and a party very much interested. The State also is a party and I have no reason to think that the State cannot co-exist with an informant as a party. They are ranged on the same side. The conflict between the two is a matter of rare occurrence and when it arises, it is for the Courts to resolve it.

10. The expression 'party interested' also occurs in Clause 8 of Section 526. That clause provides that if in any enquiry under Chap. VII or Chap. XVIII or any trial any party interested intimates to the Court, the Court shall on his executing the bond if so required, adjourn the case. In Clause 8 the expression 'party interested' was substituted by an amendment of 1932 in place of the words 'the public prosecutor, the complainant or the accused', It is clear that the amendment harmonizes the two clauses. The language of Clause 8 before the amendment was restricted. Apart from the public prosecutor or the accused, the complainant alone could ask for adjournment under Clause 8. The amendment widens its scope. The public prosecutor and the accused are admittedly parties interested. It was the word 'complainant', the limited scope of which would cause difficulty. The expression 'party interested' would include the public prosecutor, the accused and not merely the complainant, but even ah aggrieved party who wanted to obtain redress through the police. If complainant alone was meant and an aggrieved party who goes to the police was sought to be excluded, Clause 3 should have been amended and ought to have been brought into line with Clause 8. It appears that the Legislature intended to give the right to move the High Court for transfer to all parties actually interested in the proceeding.

11. Reading Section 526 as a whole the impression one gets is that the High Court has been invested with very wide powers in the matter of transfer. It may order the transfer of a case if it appears to it expedient for the ends of justice apart from other grounds specified in Clause 1 of Section 526. It may be moved for the transfer by the lower Court or by a party interested. It can also pass orders of transfer on its own initiative. When power can, be exercised on its own motion or initiative, it does not appear to me consonant with the intention of the Legislature that its use should be available only to the officers of the State and not to the person who is aggrieved and who in the ultimate analysis is certainly the only person interested in tile result, for the State in the process of the enforcement of its law secures redress for the wrong done to him,

12. There is a considerable body of case-law on the point. The basic case is a Division Bench. case of the Patna High Court reported in —. 'Jamuna Kanth v. Rudra Kumar' AIR 1920 Pat 836-(A) in which Mullick J. held that if the petitioner Under Section 526 was not a complainant even though, he suffered injuries in a riot and reported to the police, he was not a party interested. At that time Clause 8 had not been brought into line with Clause 3 by the amendment referred to above and the learned Judge was of the opinion that Clause 3 was intended for the parties named in Clause 8. Now Clause 3 has got the same phraseology as Clause 8 and therefore is not limited or qualified by it. The learned Judge was influenced mainly by the language of Clause 8 which has since been altered. The language of Clause 8 as it stands now does not support the conclusion, Jwala Prasad J. even then expressed the view that

the distinction between an informant and a complainant appears to be very thin for the purpose of making an application Under Section 526, and far from imposing a legal bar upon him to make such an application, Clause 3, newly added, appears to me to amplify the right which would have seemed not to have been conferred by Clause 8 in which the words 'the Public Prosecutor, the complainant or the accused' occur.

This view was followed in — 'Sheodhari Rai v. Jhingur Rai' AIR 1925 Pat 818 (B).

13. Daniels J. in — 'Emperor v. Bhik Chand' AIR 1926 All 307 (C) laid down that

in a charge Under Section 304, IPC which js instituted on a police report and in which the prosecution is in the hands of the Public Prosecutor, exceptionally strong grounds would have to be shown before the High Court would exercise its powers of transfer at the instance of a private complainant when the responsible authorities are satisfied that there is no ground for withdrawing the case from the Court which is hearing it.

It assumes that the informant to the police has the right to apply. What considerations should guide the Court in disposing of the petition is a different matter.

In — 'Sardar Shah v. Gurdit Singh' AIR 1934 Lah 612 (D) Agha Haidar J. followed the view expressed in AIR 1926 All 307 (C). In — Emperor v. Dhana' AIR 1938 Lah 569 (E) Abdul Rashid J. following — 'Bagh Ali v. Muhammad Ali' AIR 1926 Lah 156 (F) held that

although the complainant in a cognizable case is entitled to apply for transfer Under Section 526, his rights are subordinate to those of the Crown and in the case of conflict between the two, the right of the Crown must prevail.

In — 'Ghulam Rasul v. Emperor' AIR 1941 Lah 299 (G) Skemp J, agreed with the view of Agha Haidar J. expressed in AIR 1934 Lah 612 (D). In all the four cases from the Lahore High Court the right of the private complainant to move the High Court for transfer Under Section 526 was recognized.

In — 'Rajagopal Rao v. Narayana Reddi' AIR 1929 Mad 844 (H) it was hold following AIR 1925 Pat 818 (B) and AIR 1926 All 307 (C) that a party interested in Section 526(3) may include a police informant. In — 'Om Radhe v. Emperor' AIR 1939 Sind 238 (1) Davis J. C. went further and held that High Court can, if it thinks proper, act upon the application of a witness and would certainly do so if it is satisfied that the process of the Court is being abused, that the proceedings are sham or bogus proceedings instituted or continued for some ulterior purpose, for a purpose not within the intention and provisions of the relevant sections of the Code. In — 'Rajendranarayan v. Bhagaban AIR 1947 Pat 166 (J) a person on whose behalf a report was made to the police was held entitled to apply for transfer under S, 526. It will appear that since 1920 the view of Jwala Prasad J. prevailed in all the High Courts where the question arose for consideration.

14. In — 'Sri Krishna v. Baijnath' : AIR1953All698 Desai J. held relying on 'In re, J. Gannon', 5 Bom LR 869 (L) that Section 526(l)(d) made a distinction between parties and witnesses. A witness therefore was not considered to be a party. Hs held that the status of a person who has been injured during the commission of a crime or who makes a report about it to the police is that of a witness only, unless he is the actual complainant before the Court. He also held that the words 'interested party' could not mean an interested person and that the word 'party' was used in the sense of a party to die case. Section 526(l)(d) authorises the Court to make an word for the transfer of the case if it tends to the general convenience of the parties and witnesses. It does make a distinction between parties on one side and witnesses on the other. The convenience of witnesses who are not parties to the case, may justify a transfer of the case. But a person may both be a party and a witness. Like a complainant in a case instituted upon a complaint the informant to the police particularly when he happens to be the aggrieved party, is necessarily a witness in the case. If a suitor or a litigant has gone to law for redress, he has to substantiate his allegations. He is from the nature of things a principal witness in the case. Just like the complainant in a complaint case, he is both a party and a witness. Taking the word party' to mean a party to the case in the sense of a suitor or litigant, it may not be held on the basis of the provision contained in Clause (d) of Section 526 '1) that merely because a person is a witness in the case, he cannot be a party. Parties even in civil cases are generally principal witnesses and if a complainant docs not become a mere witness by being his own witness, an informant to the police need not lose his status by becoming a witness if he is otherwise a party to the case, I have come to the conclusion that he is a party interested is distinguished from a person interested in the case, With profound respect to the learned Judges, I find myself unable to subscribe to the view which has prevailed with him. It seems to me to be opposed to the spirit of the section. What a, Court may do on its own initiative it may not refuse to do on the motion of a person who occupies both the status of a party and a witness and who is not less interested in the case than any one else excepting the accused.

15. The decision in 5 Bom LR 869 (h) does lend some support to the view taken in the Allahabad case but is distinguishable on facts. The petitioner there was not an informant to the police. Originally the proceeding was initiated on his complaint, The accused were discharged. The Sessions Judge when ordering further enquiry directed that the case shall be treated as a Crown case. It shall not proceed on petitioner's complaint and. that the prosecution shall not be left in the hands of private individuals and their pleaders, The applicant for transfer described himself as a relative of the husband of accused 2, He was not treated as a complainant by reason of the direction which the Sessions Judge had given by which he was ousted from case as a complainant. It was not laid down that an informant to the police at whose instance an accused is chargesheeted was not a party interested. This question did not arise in the case. The decision rests on its own facts and has not been followed in any other case except AIR 1953 All 698 (K).

16. For reasons given above the contention that? the applicant is not a party interested and has no locus standi to apply is repelled.

17. Jwala Prasad J. also held in AIR 1920 Pat 836 (A) that where the conduct of the case is in the hands of the public prosecutor a pleader appointed by a private person was subordinate to the public prosecutor. His right was subordinate to that of the public prosecutor and where the petition was opposed by him, it should be rejected. This view was followed in AIR 1926 Lah 156 (F) and AIR 1938 Lah 569 (E). In AIR 1928 Mad 844 (II) also it was held following AIR 1926 Lah 156 (F) that where the conduct of the case is in the hands of a public prosecutor and there is a conflict between the public prosecutor and the party interested, the right of the former must prevail. These cases qualify the right of the party interested, if there is a conflict between him and the officer prosecuting the case on behalf of the State. This qualification has no statutory justification. The party interested would include the aggrieved party, the public prosecutor and the accused. Clause 3 makes no distinction between their rights and does not confer any larger rights on the officer prosecuting the case than those of the other party interested in the matter of transfer: The control over the conduct of the case is his no doubt. The transfer would certainly affect that right and in the absence of a clear statutory right conferred on the party interested other than the State prosecutor, it would have followed as a corollary from the right of the officer to prosecute the case that the party aggrieved by the alleged' offence has no right to interfere with the course-of the prosecution by a transfer application. But where the right is granted expressly by the statute,. it could not be laid down as a rule of law or even a general rule based on prudence or practice that in cases of conflict the right of the State Prosecutor must prevail, Where there is a conflict the task of the aggrieved party who reported the matter to the police becomes extremely difficult. A complainant's application for transfer is normally scrutinised with greater care than that of the accused. His stake is not so large as that of the accused.

If he is opposed by an officer of the State in charge of the prosecution who has no personal interest in the controversy, the chances of his obtaining transfer are reduced considerably. But the mere fact of opposition from the State Prosecutor should not be enough for rejecting the petition if on the merits die transfer prayed for appears to be desirable. Cases are conceivable in which opposition from the officer prosecuting the case may be unreasonable or lacking in justification. This by itself should not be enough for refusal to consider the application on the merits. Whether the application should succeed or not must depend on the circumstances if each case. The opposition from the officer prosecuting the case would no doubt be entitled to Considerable weight. The Court cannot however with any justification abdicate its powers in his favour; for, if his opposition is to prevail in all Cases, the application of the informant to the police would practically stand determined by the attitude of the prosecutor. As observed by Desai J. in — AIR 1953 All 698 (K)':

if a person who makes a report to the police is held to be a party interested, he has a right to apply for transfer and his application must be granted, notwithstanding the public prosecutor's opposition, if he satisfies the Court that a fair and impartial trial cannot be held. If his application is to be dismissed it must be on the ground that there was 'no such apprehension and not merely on the ground that it is opposed by the public prosecutor.' ''Law makes no distinction between one party interested and another; if any party interested satisfied the Court that there is a reasonable apprehension that a fair and impartial trial cannot be held in the Court, he is entitled to have the case transferred and no question arises whether his right is subordinate to that of the public prosecutor or not. If the public prosecutor opposes his application, that is a fact to be taken into consideration in deciding whether there is a reasonable apprehension or not.

I would only add that it is not merely a fact to be taken into consideration. It indeed is a very important fact, for the opposition comes from an officer who has presumably no personal interest and who is also entitled to exercise control over the conduct of the prosecution, which is bound to be interfered with by applications for transfer which he cannot conscientiously support. The opposition from him thus is an important fact in the case, 'but the party who has set the machinery of law in motion is entitled to have a decision of his application on the merits from the Court.

18. In the view of the matter that I take it is obligatory on us to dispose of this petition on the merits. The petitioner is a party interested within the meaning of Section 528 (3). His petition is not op-posed by the officer incharge of the prosecution.

19. What was said by the learned Magistrate when the Chief Accountant Girish Chandra kakati was being examined has not been stated. The allegation is vague. This incident therefore has to be left out of a commit in considering whether a case for transfer is made out. So far as the direction to the defence counsel not to expose Mr. N. C, Bose, the petitioner when he was giving evidence, the learned Magistrate has stated in his explanation that he was trying to protect the witness. This may have been his intention. But the language used by him does not convey that innocent meaning. It may easily be construed as implying an insinuation that me witness had something to hide and that the defence counsel should not expose him. If exposure of some kind was possible the witness would be protected by the direction given to the defence counsel. But the direction would imply or involve expression of opinion as to the value of the testimony of the witness. This incident by itself may not have been enough for ordering the transfer at this stage when on this basis no transfer was applied for soon after it occurred. But now it has to be considered along with the more important incident that occurred on 18-8-1953 in the course of the argument. On that day, according to the petitioner the learned Magistrate observed at least two or three times that the officers of the accounts branch of the bank were accomplices in the crime. The learned Magistrate has stated that he was not the first to make these remarks. The defence counsel was pressing this point. He was arguing that the witnesses of the accounts branch were accomplices in the crime if it was committed. The counsel for the State interrupted him and then the learned Magistrate observed that 'evidence was such that some of the prosecution witnesses, especially the officers of the accounts branch, appear to be accomplices.' The opinion that he expressed was pronounced and clear.

The expression of opinion came during the course of the argument. It is argued that the prosecution against whom adverse remarks were made could reasonably apprehend that the learned Magistrate had come to a decision before the argument was concluded. He had therefore prejudged the issue and the argument before him could servo no useful purpose. If the remarks had been made by him after the argument was concluded, the petitioner could not have justifiably asked for the transfer of the case. The difficulty arises from the fart that the learned Magistrate had fixed a date for argument. He gave the parties a: chance of presenting their respective cases. But before the close of the argument he expressed his opinion about the character of the important prosecution witnesses which had a bearing on the value of their evidence. He thus gave an indication of his mind on a vital aspect of the matter. Where opinion is expressed in such unequivocal terms as in this case, it provides a basis for a reasonable apprehension in the mind of the party against whom it is expressed. When considering the question whether circumstances could create reasonable apprehension that a fair and impartial enquiry or trial. will not be had, the Court has to put itself in the position of the applicant seeking transfer and to look at the matter as it would appear to him. The observations of the learned Magistrate may admit of some explanation. But if they tend to create in the mind of the party applying for transfer an apprehension which may not be regarded as unfounded, that he may not have a fair trial, it would be undoubtedly expedient in the interests of justice to order transfer. Without entertaining the slightest doubt about the impartiality of the learned Magistrate, we think interests of justice require that the case should be transferred from his Court even though it has come so near disposal. It is of the utmost importance that litigants should have faith and confidence in the impartiality of 'Courts.

This confidence has to be maintained. It is not enough to do justice. It must be seen to be done. Giving the impression by some remarks that the issue has been prejudged would justify a demand for transfer of the case. The learned Magistrate in his explanation has tried to justify his remarks. He thinks he was entitled to express his opinion at that stage. This view is erroneous. He has also raised the objection that the petitioner was not competent to apply for transfer. It was not necessary for him to raise this objection. The party interested could raise it. His explanation gives the impression that he is resisting transfer which he seems to resent. He would have done better if he had given his version of the facts only and had avoided arguing why transfer may not be ordered. I think the circumstances of the case are such that they leave us no option but to transfer the case even though it is at the argument stage. It has been found necessary to do so for maintaining the confidence in the administration of justice and we order accordingly. The case shall go back to the District Magistrate, He shall transfer it for trial to some competent Magistrate other than Mr. Sarkar, The Magistrate concerned shall fix a date for the examination of prosecution witnesses if a 'de novo' trial is demanded. The trial shall be from day to day till the prosecution evidence is finished and the case shall be heard and disposed of as expeditiously as may be possible in the circumstances of the case.

Sarjoo Prosad, C.J.

20. I agree. I have little to add to the discussion on the merits of the case. The learned Magistrate, in his explanation, has almost substantially admitted the allegations made, which clearly betray his mind on vital aspects of the case. In these circumstances, the apprehension is reasonable that the petitioner may not get justice from the Magistrate who already appears to have made up his mind against him. In the larger interest of the administration of justice, the transfer of the case from the file of the Trying Magistrate to that or any other competent Magistrate is not only desirable but essential.

21. On the question of locus standi of the petitioner to apply for transfer, I would • like to add a few observations. I realise that the point has been already subjected to an elaborate and minute scrutiny, and the case laws have been adequately reviewed. I shall, therefore, try to express myself as briefly as I can. It seems to me that the words 'o party interested' occurring in Sub-section (3) of Section 526 should be construed liberally so as to cover not only the Public Prosecutor and the accused, but also the complainant, and the aggrieved party who may be the first informant or the person who sets the criminal law in motion. I have arrived at this conclusion for three substantial reasons. First is the context in which the words occur. Sub-s (3) shows that the High Court may act Under Section 526 either (i) on the report of the lower Court, or (ii) on the application of 'a party interested', or (iii) en its own initiative. It appears to me quite unreasonable to assume that although the facts disclosed might make out a good case for transfer, yet the application should be thrown out merely because it is at the instance of the complainant or an aggrieved party, when on those facts the High Court, of its own motion, could act in the interest of justice and order transfer. The section is intended to safeguard fair and impartial enquiry or trial in a Criminal Court subordinate to the High Court and it lays an obligation on the High Court to secure that end. Therefore, it is quite reasonable to hold that in the context of the section, the words contemplated a petition for transfer at the instance of the aggrieved party, the complainant or the first informant who was in the position of a party interested. This conclusion is strengthened by the amendment of Sub-section (8) of Section 526 when in 1932, the words 'party interested' were substituted for the words 'the Public Prosecutor, the complainant or the accused.' The object of the amendment evidently was to widen the scope of Sub-section (8) also and bring it in line with Sub-section (3) of that section.

The amendment would have been otherwise unnecessary. Secondly, it seems to me that the person vitally interested in the issue of the prosecution or the trial is the person aggrieved who 'initiates' the proceedings. He may be both civilly and criminally liable if, on account of any unfairness or partiality, the trial or the proceeding ends in wrongful acquittal or discharge of the accused. The Legislature therefore could not have intended to shut out such a person from coming to the High Court and claiming redress Under Section 526 of the Code. The words should be construed to have the widest amplitude so long as the effect of the interpretation is not to open the door to frivolous applications at the instance of intermeddlers or officious persons having no direct interest in the prosecution or trial. Thirdly, it appears to me that the use of the expression 'interested', as qualifying the term 'person' itself is very significant. If the intention was merely to signify such of the accused who were affected by the conduct of the Magistrate or had a reasonable apprehension of not having fair or impartial trial, then the qualifying phrase was unnecessary; because, in that case, the application cannot be thrown out 'in mind' on the ground that any other accused had no right to move, but on the ground that he could have no reasonable apprehension in his mind that the trial would not be fair. In fact, cases may be easily imagined where the Magistrate's conduct may affect only some accused directly, yet it may lead to a well-founded apprehension in the minds of others also that the trial will not be fair and impartial. In such cases, it cannot by said that the other accused will have no right to prove the High Court Under Section 526. The word 'interested' therefore carries with it larger significant and should be deemed to include an aggrieved party who is directly affected by the result of the trial.

22. Besides the question of locus standi by itself ought not to be allowed to weigh with the Court after once a Rule has been duly issued at the instance of a person. It may be open to the Court to reject the application at the preliminary hearing on that ground, but once the Court decides to issue a Rule, the question is one of academic importance, and the Court has then to satisfy itself, on merits, whether there is any good case for transfer. It would be anomalous to hold that although such a case has been made out, a transfer cannot be ordered because the Court was moved at the instance of a person not entitled to move. Such a procedure would defeat the very object of Section 526, and the ends of justice which it is intended to serve.

23. For the reasons stated above, I agree that the Rule should be made absolute and the case transferred to the file of some other competent Magistrate. If the accused does not press for a de novo trial, the case may be disposed of by the transferee Magistrate on the evidence already recorded.

24. The record should be sent down at once for necessary action.


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