1. This is a transfer application in which Gokul Prasad and others ask that a case now before a Special Magistrate, Captain Bijai Prasad Singh, may be transferred to some other competent Magistrate's Court outside the district of Benares.
2. The affidavit in support of this application is untrue in one important respect. Para. 11 runs as follows:
That the learned trying Magistrate was a class-fellow of B. Sahadeo Singh, Advocate, and is on terms of intimacy with him.
3. The statement 'on terms of intimacy with him' is a falsehood. The Magistrate in his explanation has said:
About fifteen years ago Babu Sahadeo Singh Advocate, was my class-fellow for a few months. I know him then very casually and after that I have never met (him) as a friend or intimate and have never exchanged any social visits as he is not known to me well.
4. If a case was to be transferred on every occasion on which a Magistrate fifteen years before had rubbed shoulders with somebody who was either a complainant, or a respondent or an advocate in the case the whole of the judicial work in this country would come to an end.
5. The learned Magistrate in his explanation has said:
that the real reason underlying this application is not any apprehension that the applicants will fail to receive justice from me but has been done to harass the other side.
6. The incidents out of which this case arises are said to have taken place on 2nd November 1928, and we are now in the month of March and the case has not been concluded.
7. I refuse this application for transfer. A copy of this order is to be sent to the learned Magistrate with an expression of my wish that he will use all reasonable expedition to sweep this, and apparently some connected cases, off his file as scon as he can:
8. There is one other point that should be mentioned, and that arises from a statement contained in para. 15 of the affidavit which runs as follows:
That legal practitioners of influence having been involved in the case as accused, the petitioners have failed to get standard (sic) legal assistance from the local Bar.
9. It is very important that men at the Bar should understand that they are members of a public profession. That is by their very calling they engage and undertake to act for anybody who fulfils certain conditions. Therefore if a client comes to them with a proper instructions and prepared to pay a fair and proper fee and invites them to undertake a case of a kind which they are accustomed to do and they refuse, such refuse amounts to professional misconduct, and should be punished as such. I should like this to be communicated by the Magistrate to any of the members of the local bar who appear not to be aware of that rule. That is to say, a man at the Bar. has no right whatever to refuse a case if proper instructions are given and, proper fees are tendered to him and the work is of a class which he is accustomed to do. The mere fact that the opposite party happens to be a member of the same profession is not a circumstance which entitles him to refuse to undertake the case.