Banerji and Aikman, JJ.
1. This is an application under Section 526 of the Code of Criminal Procedure, 1882, for the transfer from the Court of the District Magistrate of Mirzapur of a case now pending in that Court, in which one Hanuman Prasad is the complainant and the applicant is the accused. It is urged that an order for the transfer would be expedient in the ends of justice.
2. It appears that an application for the transfer of the same case was previously made and rejected for reasons stated in the judgment of this Court dated the 2nd May 1896. We declined to permit the applicant to urge in support of his present application any ground which had been or could have been put forward on the previous occasion.
3. We must observe that in the affidavit now filed by the applicant reasons have been assigned as justifying the transfer, some of which are futile and some baseless. The affidavit does not satisfy us that the Magistrate has prejudged the case or that there is the slightest ground for supposing that he will not try and decide the case with impartiality, nor is there anything to show that he is biassed against the accused. But, as was observed by the Calcutta High Court in a recent case Dupeyron v. Driver I.L.R. 23 Cal. 495, what the Court has to consider in an application like this is not merely the question whether there has been any real bias in the mind of the presiding Magistrate against the accused, but also the further question whether incidents may not have happened, which, though they may be susceptible of explanation and may have happened without there being any real bias in the mind of the Magistrate, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. We approve of this view. We have to consider whether any such incidents have happened in the present case.
4. We find that on the 14th of April last the Magistrate, although the charges against the accused were such as would have justified the issue of a warrant in the first instance, and although he was moved by the complainant to issue a warrant, directed a summons only to issue, This certainly was not a circumstance which could be regarded by the accused as indicating the existence of any bias against him in the mind of the Magistrate. Before the date fixed in the summons for the appearance of the accused the first application for transfer had been made to this Court and proceedings in the Magistrate's Court were stayed. When, after the disposal of that application, the case came before the Magistrate, he on the 16th of May 1896 made an order for the issue of a warrant for the arrest of the accused. The Magistrate assigns the following reasons why on this occasion he issued a warrant instead of a summons: 'It is the general belief that Maulvi Farzand Ali will do all he possibly can not to appear in answer to this charge. Rumours are widely current that he is contemplating a pilgrimage to Mecca, or as an alternative that he will cause his death to be given out. It is my belief that a summons will not suffice to secure his attendance.' It is true that before making the order he examined the complainant, who said: 'It is the general belief that the accused will not appear.' But in the examination of the complainant there is no reference to the rumours mentioned by the Magistrate in his order. In the affidavit which has been filed by the Magistrate he refers as his authority for the rumours to information which had reached him from sources which he believed to be reliable. We infer from this that that information was information which the Magistrate had got out of Court. If this is so, not only did he permit rumours relating to the accused in a case pending before him to reach him out of Court, but he allowed his mind to be influenced by such rumours. The order for the issue of a warrant was, as we have said, passed on the 16th of May 1896. Although the accused was said to be residing in another district, the case was set down for hearing on the 20th of May 1896. That date, we may mention, had been directed by the Government of India to be kept as the birthday of Her Majesty the Queen-Empress. On the 20th of May the Magistrate, without waiting for the return of the warrant, directed the issue of a proclamation under Section 87 of the Code of Criminal Procedure, and at the same time ordered the attachment of the whole of the accused's property, movable and immovable. Such an order for attachment, we may observe, cannot be made until after the proclamation is issued.
5. Without for a moment attributing to the Magistrate any desire to act otherwise than in strict accordance with law, and giving him every credit for a wish to act impartially, we feel constrained to say that the hasty procedure of the Magistrate, coupled with his allusion to the rumours referred to above, are incidents which may reasonably create in the mind of the accused an apprehension that his case may not be impartially dealt with by the Magistrate. These incidents have taken place he connection with this very case since the dismissal of the first application for transfer. We therefore think that this is a casein which it is expedient for the ends of justice that an order of transfer should be made.
6. We accordingly direct that the case be transferred from the court of the District Magistrate of Mirzapur to that of the District Magistrate of Allahabad.