John Beaumont, C.J.
1. This is an application for transfer, which raises a question of principle.
2. The charge against the accused is of selling grass from Government land, and it is being tried before the Third Class Magistrate, Dohad. It appears that circumstances relating to the removal of the grass were enquired into by the Mamlatdar, who made a report, and on that report this case was instituted. The learned District Magistrate notes the main ground on which transfer is claimed as being the allegation that the Magistrate, and Treasury Aval Karkun, that is the trial Magistrate, is subordinate to the Mamlatdar, Dohad, on whose report and enquiry this case was instituted, and is therefore liable to be influenced in his judgment, and he disposes of the allegation in these words:
The point is correct, but it would be unfair to the Magistrate to assume that he would allow his judgment in a criminal case to be influenced by his revenue superiors, without some definite evidence of bias.
3. If the learned Magistrate trying the case was not also a revenue officer, I should have entirely agreed with the opinion of the learned District Magistrate. But one cannot ignore the fact that the trial Magistrate is also a revenue officer, and is subordinate in that capacity to the Mamlatdar who made the report, and if the trial Magistrate should be called upon to express an opinion as to the competence or honesty of the Mamlatdar's report, it seems to me impossible to shut one's eyes to the fact that he is going to be very reluctant to make any hostile criticism on an officer on whose favour he is dependent as a revenue officer.
4. The learned Government Pleader says that to transfer a case in such circumstances is to introduce a dangerous principle. But I think the dangerous principle is the non-separation of executive and judicial functions; and so far as I am concerned, as long as those functions are not separate, I shall never hesitate to transfer a case from a Magistrate who may be called upon in the course of the trial to differ from the views expressed by his revenue superior.
5. In my opinion, therefore, we ought to transfer this case to the First Class Resident Magistrate, Dohad, who is not subordinate to the Mamlatdar.
6. I agree.