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In Re: Malepati Srihari Rao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 496 of 1962 and Criminal Revn. Petn. No. 433 of 1962
Judge
Reported inAIR1964AP226; 1964CriLJ507
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 100, 253, 254, 256, 342, 439, 537 and 556
AppellantIn Re: Malepati Srihari Rao
Appellant AdvocateP.A. Choudhary, Adv.
Respondent AdvocateK. Somakonda Reddy, Adv. for ;Public Prosecutor
Disposition Petition dismissed
Excerpt:
(i) criminal - framing of charges - sections 253,254,256 and 342 of criminal procedure code, 1898 - magistrate can frame a charge whenever prima facie case is made out against accused under section 254 - magistrate not under duty to examine all witnesses before framing charges - accused can be examined second time under section 342 if magistrate thinks accused should be given opportunity to explain his circumstances - held, magistrate not bound to frame charges or discharge accused after his examination has taken place. (ii) biased treatment of magistrate - sections 556, 537 and 100 of criminal procedure code, 1898 - to attract provisions of section 556 magistrate should be personally involved in case - any prejudicial intentions of magistrate if evident disqualifies him to try case -.....orderkumarayya, j.1. the petitioner is one of the 6 accused in c. c. no. 2 of 1960 on the file of the munsif-magistrate, narasaraopeta, who along with others was convicted of offences under sections 143, 342 and 348, i.p.c. and was sentenced to undergo simple imprisonment for one month and pay a fine of rs. 100/- and in default to sutter simple imprisonment for a further term of one month for the offences under section 348, i. p. c, and pay a fine of rs. 50/- or in default suffer simple imprisonment for one month for the offence under section 143, i. p. c. no separate sentence was given for the offence under section 342, i. p. c, in view of sentence already awarded for the offence under section 143, i. p. c. on appeal the additional sessions judge, guntur, confirmed the order of.....
Judgment:
ORDER

Kumarayya, J.

1. The petitioner is one of the 6 accused in C. C. No. 2 of 1960 on the file of the Munsif-Magistrate, Narasaraopeta, who along with others was convicted of offences under Sections 143, 342 and 348, I.P.C. and was sentenced to undergo simple Imprisonment for one month and pay a fine of Rs. 100/- and in default to Sutter simple imprisonment for a further term of one month for the offences under Section 348, I. P. C, and pay a fine of Rs. 50/- or in default suffer simple imprisonment for one month for the offence under Section 143, I. P. C. No separate sentence was given for the offence under Section 342, I. P. C, in view of sentence already awarded for the offence under Section 143, I. P. C. On appeal the Additional Sessions Judge, Guntur, confirmed the order of conviction and maintained the sentences of fine, but reduced the simple imprisonment awarded under Section 348 to one of imprisonment till the rising of the Court. A-1 alone has come up in revision to this Court.

2. In order to appreciate the points raised in this revision, a brief statement of facts may be necessary. The petitioner is the former husband of the complainant, P. Anasuyamma (P.W. 1). The marriage between the two was dissolved under a decree dated 214-1959. Nevertheless, the petitioner under a registered deed dated 4-7-1959 settled certain property on her for her maintenance, even though she herself possessed some property given by her parents at the time of her marriage arid which was to an extent of 7 acres of land situate at Tangedumalli and two other villages. As she could not effectively manage her lands, being scattered in various villages, she entered into an agreement for exchange of these lands with one Raghavaiah (P.W. 4). The petitioner and A-5, who is the real brother of the complainant, were averse to this Idea and they wanted that the lands should be given to A-5.

On 29-11-1959 at about 1 p.m., the complainant along with P.Ws. 2, 4 and 6 went to inspect the lands. They first went to the lands at Gurijipalli and thereafter to Tangedumalli. From there they left at about 5-30 p.m. for Narsaraopet to seek legal advice. As the complainant and P.Ws. 2, 4 and 6 reached a hillock on the eastern side of Kotappakonda by 6-30 p.m., they saw the petitioner and his companions. The latter formed into an unlawful assembly, waylaid the complainant and her witnesses, assaulted and forcibly took the complainant in a car. The protests of the witnesses went unheeded. The complainant was taken to Purushottamapatnam and there she was wrongfully confined in a house. There on 30-12-1959, the mother of the complainant, P. W. 5, was also brought and kept under wrongful confinement. The petitioner and accused No. 5, the real brother of the complainant. In the presence of the other accused after beating the complianant compelled her to reconvict her properly in their name.

Eventually, they forcibly obtained her signature on two white papers with tables affixed with a view to fabricate a forged document in relation to the said property. While 'the matters stood thus, P.W. 4 made a complaint firstly to the police on 29-12-1959 itself, but when the police did not take any action, on 31-12-1959 he filed a petition under Section 100 Cr. P. C. before the Munsif Magistrate, Narsaraopet, who was the only Magistrate entrusted with criminal work for that taluk. The learned Magistrate after being satisfied on the material produced before him that the complainant was under wrongful confinement in the house of one Balakoteswararao in Purushottamapatnam, issued a search warrant under Section 100 Crl. p. C. to the Section 1 of Police, Chilakalurpeta, in whose territorial jurisdiction the complainant was wrongfully confined.

Accordingly, the S. I. of Police (P. W. 12), proceeded to Purushottamapatnam to the house of Balakoteswararao and having found the complainant and her mother mere, rescued them and produced them before the Magistrate on 2-1-1960. After the complainant was thus set at large, she lodged her complaint on 5-1-1960 against the six accused persons in relation to the offences committed against tier, which, as already stated, ended in conviction of the petitioner.

3. In this revision petition, the learned counsel for the petitioner challenges the legality of the proceedings on more than one ground. It is first urged that the courts below ought to have accepted the plea of alibi taken by the petitioner, for according to him, it gains support in some manner or other even from the statements of P. Ws. 8 and 11. Both the courts below have dealt with this aspect elaborately and found that the plea of alibi cannot be accepted. It is a finding of fact which was arrived at on appraisal of the evidence on record. When both the Courts have concurrently taken a definite view, unless that view is unreasonable or wholly unwarranted by the material on record, it is not open to interference. I do not think having regard to the discussion in the judgments of the courts below the argument advanced on behalf of the petitioner can be accepted.

4. The second contention raised is that the procedure adopted by the learned Magistrate for trying the offences is not in conformity with that prescribed by law. His case is that first, 11 witnesses were examined and thereafter, instead of taking a decision whether on the evidence already on record he should frame a charge or discharge the accused, the Magistrate proceeded to examine another witness, P. W. 12, and thereafter framed a charge. This, the learned counsel contends, is against the procedure laid down in Sees. 253 and 254 of the Criminal Procedure Code.

Assuming that the case proceeded exactly as it is contended for on behalf of the petitioner, I do not fee anything irregular or Illegal therein. Section 253 relied on relates to discharge of the accused, which cannot be ordered unless the whole evidence taken or the Magistrate comes to the conclusion at any earlier stage that the charge is baseless. We are not concerned in this case with any question of discharge at all. Section 253 has, therefore, no bearing on the present controversy.

The other section relied on is Section 254, which deals with the question when a charge may be framed. A charge is ordinarily framed after all the evidence as may be produced in support of the prosecution has been taken. It is open to the Magistrate to frame 3 charge even earlier. But in either case, it is necessary that the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI, which he is competent to try and which in his opinion can be adequately punished by him.

It follows, therefore, that the Magistrate is not bound to examine all the witnesses to be produced on behalf of the prosecution before he frames a charge. The moment a prima facie ease is made out against the accused of an offence of the description referred to in Section 254 Cr. P. C. he is at liberty to frame a charge. The witnesses left over will be examined as remaining witnesses according to the procedure laid down in Section 256. The mere fact that the Magistrate put questions to the accused at some stage of the trial before all the witnesses are examined would not make it incumbent on him to either frame a charge or pass an order of discharge. Section 342 Cr. P. C. empowers the court to put questions at any stage of an enquiry or trial as it thinks necessary, to enable the accused to explain the circumstances appearing against him. Such power which may be exercised at any stage, however, has to be necessarily exercised under the terms of the said provision after the witnesses for the prosecution have been examined and before the accused is called on for his defence. The power being thus exercisable at any or several stages of inquiry, the argument that either an order of discharge or framing of charge must necessarily follow examination of the accused by the Court at any stage is untenable in law.

That apart, on a perusal of para 6 of the judgment of the trial Court it appears that the proceedings did not go on before that Court in the manner stated by the learned counsel. The learned Magistrate examined 11 out of the 12 witnesses named in the complainant's list. Being satisfied that a prima facie case is made out against the accused, he framed charges after examining the accused. After recalling the said witnesses for cross-examination, he examined P. W. 12. After this remaining witness was examined, it became necessary for the Magistrate to examine the accused under Section 342 Cr. P. C. for a second time, because the accused had to be given an opportunity to explain the circumstances appearing against them in the evidence of P. W. 12. This procedure adopted by the Magistrate far from being against the provisions of the Criminal Procedure Code was in strict conformity with it. The plea of the learnt counsel must, therefore, fail.

5. Then it is argued that since the Magistrate had originally issued a search warrant under Section 100 Cr. P. C. after satisfying himself that the complainant was confined under such circumstances that the confinement amounts to an offence, he was not competent to entertain the complaint filed subsequent thereto. It is not disputed that he was the only Magistrate in charge of criminal jurisdiction of the Munsif-Magistrate's Court at Narasaraopet. It is also not disputed that no objection was raised at any stage of the trial with regard to competence of the Magistrate. It is not disputed either that the accused did not entertain any suspicion on account of issue of search warrant that they will have no justice if the matter proceeded in that Court. It is only in this Court and that too during the course of argument that such a plea has been raised. One would look in vain for any such plea in the memorandum of the grounds of appeal or in the grounds taken in this revision petition also. Obviously it is an afterthought and only a plea in despair.

6. A Magistrate who is otherwise competent to try a case would be disqualified if he comes within the mis-chief of Section 556 Cr. P. C. That section reads as follows:--'

'No Judge or Magistrate shall, except with the per-mission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

EXPLANATION;-- A Judge or Magistrate shall not bet deemed-a party, or personally interested, within the meaning of this section, to or in any ease by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred, and made art inquiry in connection with the same.' In order to attract the provisions of Section 556, it is necessary that the Magistrate should either be a party to, or personally interested in, the case. If he incurs any of such disqualifications, he will not be competent to try the case, and if he tries the case, the defect may not be cured under Section 537 Cr. P. C. The interest may be pecuniary or personal. Pecuniary interest may be private or official. The expression 'personal interest' employed in Section 556 is not limited to private interest. It may as well include official interest. Having regard to the explanation in that section, personal interest or personal connection even though small or remote would not be a disqualification. Unlike pecuniary interest, all other kinds of interest should be substantial to disqualify the Magistrate.

It cannot be said in this case that the Magistrate was a party to the case. It cannot also be said that he was personally interested in the case, I.e., that he had taken interest in prosecuting, initiating or collecting evidence or directing the proceedings. All that is said is that he had issued a search warrant under Section 100 Cr. P. C. having satisfied himself on the material then placed before him that it is a case of wrongful confinement. The provision of Section 100 is one of emergency and empowers the Magistrate to make an order for issue of search warrant if he has reason to believe that a person has been confined under circumstances that the confinement amounts to an offence. It does not require a detailed inquiry or an inquiry in the presence of the persons complained against and is not concerned with the proof of their guilt. It does not, therefore, necessarily follow that on account of the order the Magistrate became blassed against the accused. The official interest taken in the issue of warrant is neither substantial nor can it be deemed to be sufficient to engender in him a real bias, in order to disqualify a Magistrate, the interest must be substantial giving rise to a real bias and not to a mere possibility |of bias. Otherwise, the efficient discharge of official function becomes well nigh impossible.

It is a normal feature of the procedural law that the Magistrate has to form an opinion as to the truth or otherwise of the charge against the accused at various stages. When a complaint is filed, he has to make up his mind whether there is sufficient ground for proceeding against the accused and by examining the complainant or and by other inquiry he forms his own opinion. By reason of the same, which is warranted by Section 202 Cr. P. C. It cannot be possibly argued that his inquiry or satisfaction baa engendered bias in his mind. Similar is the case when a charge has to be- framed. The Magistrate has to come to a conclusion whether a case has been made out which if unrebutted would end in conviction. Certainly that Magistrate is not disqualified on that ground to proceed further as soon as he framed a charge. As compared to this, the case under Section 100 Cr. P. C. is certainly much weaker for the order thereunder is made even before the accused persons have come on record.

The Allahabad High Court in Mohd. All Khan v. Emperor, AIR 1926 All 428 has observed that an order under Section 100 Cr. P. C. does not disqualify the Magistrate to take cognizance of the actual offence. The learned Judge drew an analogy in this behalf with the proceedings under Section 110 Cr. P. C. and observed that though a preliminary order based on some information may be open to subsequent attack on the ground that it was based on insufficient material or was not passed in accordance with law, the possibility of such objection being raised has never been held to necessitate transfer of the proceedings or to disqualify the Magistrate to pass the final order. The question of disqualification must, therefore, in cases of non-pecuniary interest rest on the measure of interest which should be substantial one, giving rise to a real bias or reasonable apprehension on the part of the accused of such real or actual bias and not mere possibility thereof. Be it noted, interest in an official capacity may be either active or passive. The Supreme Court in Rameshwar Bhartia v. State of Assam, : 1953CriLJ163 has observed thus:--

'The explanation and the illustration to Section 556 lend some support to the view that there is distinction between a passive interest and active interest and that it is only in the latter case that the- disqualification arises or intervenes.'

That shows that the disqualification applies only when the interest attributed is of such a nature as to practically render the case as though his own cause. Mere issuing a search warrant does not make the Magistrate so interested. The principle embodied in Section 556 is based on one of the two important rules of Natural Justice, well recognised by English common law. That rule is to the effect that 'Ho man shall be a judge in his own cause'. It is also known as the 'rule against bias'. Lord Cave, L. C. in Frome United Breweries v. Bath Justices, (1926) AC 585 at p. 590 referred to this rule thus:--

'My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a Judicial proceeding must be able, to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others.'

Thus it is manifest that the rule against bias farmsan integral part of the English common law, that beinga rule of Natural Justice. The doctrine of natural justicehas indeed a recognised place in the Indian legal systemalso. This rule if kept within its essential limits or ap-plied to suitable cases would be a boon, but stretchedfurther would lead to chaos and confusion,

7. The English law discloses two views on this point. One view is objective and the other is more or less subjective. The first view is traced to Blackburn, J. in Rex v Rand, (1866) I QB 230. According to this view, wherever there be a real likelihood that the Judge would, from kindred or any other cause, have a bias in favour of one of the parties, he would be disqualified. But mere possibility of bias which is not real would not ipso facto avoid his decision. The position is made clearer still that though any pecuniary interest, however, small, in the subject-matter disqualifies a justice from acting in a judicial Inquiry, the mere possibility of bias in favour of one of the parties would not have that effect and in order to have that effect, the bias must be shown at least to be real. The other view which, as already staled, is essentially subjective, is traced to Lord Esher in Eckersley v. Mersey Docks and Harbour Board, (1894) 2 QB 667, and reliance for the same has been placed by the (earned counsel for the petitioner on Cottle v. Cottle, (1939) 2 All ER 535. It attaches importance to the very Impression-created on the mind of the aggrieved party as to the possibility of bias, though it may not be real or actual.

It is, however, interesting to note that in 1939-2 All ER 535, Sir Boyd Merriman, P., was not prepared to hold that the Judge was disqualified on account of his acquaintance with any of the parties. At page 539 he observed thus:--

'I hope it goes without saying, if some attempt was made technically to argue this point, that, because of the mere fact that some sort of acquaintance exists between a justice and parties, or even the fact that they have discussed business matters entirely unconnected with the case, it would be a preposterous thing If a suggestion were to be made that there was bias, or a possibility of a bias. If we were to put any such exacting test upon the right of justices to sit, it might very well be that the whole structure of summary jurisdiction would be upset. The whole essence of the local administration of justice and the great value of the functions of justices are that they do administer justice amongst people with whom they are acquainted, and of whose lives and family history they knew something. I must not be taken for a moment to be suggesting that anything of that hind could possibily he regarded as a disqualification.'

Having observed that, he noticed that the facts of the case there, as revealed by the affidavits, suggested that the acquaintance was much closer than that. Besides, there was also intimate connection between the two cases out of which one was previously decided and to which decision Judge concerned was a party. Having noticed thus the learned President observed that even these circumstances did not require consideration, for the case was to be decided on altogether a different looting. Me further observed that he did not attach any importance to these circumstances, because he was not intending to express any opinion on the question whether or not Mr. Browning (the Judge) was biassed in the matter, or to assume that his judgment on the occasion in question was Influenced by any discussions which he may or may not have had with members of the wife's family, as that was rot the point there. He decided to base his judgment on the principle enunciated by 'Lord Hewart, C. J., for the first time in R. V. Sussex Justices, Ex Parte wcCuarthy, (1924) 1 KB 256 which is to the effect that

'it is not merely of some importance but is of fundamental importance that Justice should not only be donebut should manifestly and undoubtedly be seen to be done.'

That principle indeed was recognised in R. v. Essex Justices, Ex parte Perkins, (1927) 2 KB 475 and it received we approval of the Court of Appeal R. v. sanord Assessment committee; Ex parte, Ogden, (1937) 2 KB 1. As the learned President observed, (1927) 2 KB 475 was the plainest possible case in which the administration of justice was not interfered with in any way by any actual bias on the part of the clerk to the justices. Nevertheless, the order made by the justices in favour of the wife was removed on certiorari by a Divisional court of the King's Bench Division, and, in dealing with the matter, Avory, J.,.after quoting a passage from the Judgment of Lord Hewart, L. C. J., in (1924) 1 KB 256 said at pages 483 and 489 thus:

'We have here to determine, however, whether or not there might appear to be a reasonable likelihood of his being biassed. If there might, then justice would not seem to the applicant to be done, and he would have a right to object to the clerk acting as such. I must conclude that, though the clerk to Justices and the justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable impression on the mind of the applicant would be that Justice was not being done, seeing that the solicitor for his wife was acting with the justices and advising them on the hearing of the summons which she had taken out against him.'

In (1939) 2 All ER 535, Bucknill, J., based his judgment on the ground that in the circumstances of the case it was impossible to say that no reasonable man could suppose that there was not an improper interference with the course of Justice. He observed thus:--

'I attach, as everybody must attach, the greatest Importance to the fact that every litigant in a British Court of Justice should be satisfied that he is having an absolutely impartial trial, and that there should be no suspicion of any undue interference. That being so, although, as I have said, I think that the case is a difficult one, I agree with Sir Boyd Merriman, P., (hat this case should; go back for retrial, as asked.'

It would, therefore, appear from the facts of.(1939)2 All ER 535 that It was a case where having regard to the kindred circumstances there was a ground to believe that the party had a reasonable ground for apprehension that justice may not be done at the hands of the particular judge.

8. No doubt the Judgment has been based on the principle enunciated by Lord Hewart, C. J., viz., that Justice should not only be done but should undoubtedly and manifestly be seen to be done; but, as I have already observed, this doctrine cannot be stretched to Its breaking point in fact, in Regina v. Camborne Justices Ex. p. Pearce (1955) 1 QB 41 at pp. 47-51 it was observed by Slade, J., at page 51 thus.-

'The frequency with which allegations of bias nave come before the Courts in recent times seems to Indicate that lord Hewart's reminder in the Sussex Justices case (1924-1 KB 256) that it 'is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst endorsing and fully maintaining the integrity of the principle reasserted by lord Hawert, this court feels that the conti-nued citation of it in case to which it is not applicable may lead to the erroneous impression that it is more Important that justice should appear to be done than that It should in fact be done.'

In that case Slade, J., expressed his opinion that 'the authorities as a whole are almost overwhelming in support of the requirement that, to use the well-know words of Blackburn, J., in (1866) 1 QB 230

'a real likelihood of bias must be proved to exist before proceedings will be .vitiated en the ground that a parson who has taken part or assisted in adjudicating upon them, was in law Incapacitated by interest from doing so'. The learned Judge also dealt at length with the hollowness of the theory that mere suspicion, or a reasonable suspicion, of bias will suffice to disqualify a judge or a tribunal.

9. The theory referred to, which 1 have same is essentially subjective, finds expression in the following passage of Lord Esher, M. R., in (1894) 2 QB 667 :

'When the proposition sought to be established an behalf of the plaintiffs is examined, it conies to this, that the- disputes ought not to be referred to the engineer because he might be suspected of being biassed, although in truth he would not be biassed. It is an attempt to apply the doctrine which is applied to judges, not merely of the Superior Courts, but to all judges -- that, not only must they be not biassed, but that, even though It be demonstrated that they would not be biassed, they ought not to act as judges in a matter where the circumstances are such that people -- not necessarily reasonable people, not many people -- would suspect them of being biassed.'

This passage was cited in Rex v. Justices of County Cork, (1910) 2 IR 271 by Lord O Brien, C. J., who observed as follows i-

'That, in my opinion, goes too far it makes the mere suspicions of unreasonable person a test of bias. I think that the Judgment was a considered one and that lord Esher made use of some; loose expressions. We decline, on a consideration of the cases, to go so far as that very eminent judge. There must, in the words of Blackburn, J., be a 'real likelihood' of bias; (1866) 1 Q.B. 230. in Rex (De Vesci) v. Justices of Queen's Co., (1308) 2 lR 285(294), I expressed myself as follows; by bias I understand a real liKelihood of an operative prejudice, whether conscious or unconscious, mere must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias. I do not think that the mere vague suspicions of whimsical, capricious and unreasonable people should be made a standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds -- was reasonably generated -- but certainly mere flimsy, elusive, morbia suspicions should not be permitted to form a ground of decision.''

10. Blackburn, J.'s principle of 'real likelihood' of bias was approved in (V926) AC 586 at p. 590, where Lord Cave L C., said:

'The justices who are members of the authority are bound to act Judicially and not sit if they are subject to that which, in (1866) 1 QB 230 was referred to by Blackburn, J., as a 'real likelihood of bias'. Lord Atkinson in the same case (1926) AC 586 at p. 590 Quoted in support of his opinion a passage of Sir A. u. Smith, M. R., in Rex v. Sunderland Justices, (1901) 2 KB 357 at P. 373 and said:--

'The Master of the Rolls said: 'It appears to tie that, in cases where- the decision of justices is impeached on the ground of a bias such as is suggested in the present case, the decision must really turn on the Question of fact, whether there was or was not under the circumstances a real likelihood that there would be a bias on the part of the justices alleged to have been so biassed. If there is such likelihood, then is it clearly in accordance with natural justice and common sense that the justices likely to be so biassed should be incapacitated from sitting,''.

Lord Sumner also in Frome United Breweries Co's case {1926} ft. C. 58S at p. 590 stressed on the teal linen-hood of bias in the minds of the members of the authority.

11. It is clear that the House of Lords accorded, their approval to the theory of Blackburn, J., which ore vides the right test to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding. According to that theory, a real likelihood of bias must be shown. This 'real likelihood of bias' in the opinion of Stade, J., in (1955) 1 QB 41 at pp. 47, 51

'must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.'

The Courts in India have adopted the principle as propounded by Blackburn ). The principle enunciated I' : 1953CriLJ163 which is to the effect that substantial bias should be proved to disqualify a Magistrate is in essence an approval of the principle of Blackburn, -J A' similar view is taken in Manaklal v. Dr. Premchand, (S) : [1957]1SCR575 wherein it was observed as follows-.-

'In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member front acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case.'

12. On the facts of the present case, it is Impossible to hold that there could even be any reasonable apprehension in the mind of the accused that no justice will be done in the Magistrate's court which had tried him. In fact, as already noticed, no such suspicion was ever expressed in terms or by implication and we do not find even a whisper in the grounds of appeal or the grounds stated in- the revision petition. The argument seems to ba an argument of last resort taken in despair. It is clear that the accused cannot avoid a decision unless he shows bias which is at least real and substantial rather than vague or remote and inconsequential.

13. The revision petition therefore tails and it is dismissed.


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