1. This is an application for transfer of a case under Section 304-A from the Muttra district under the following circumstances:
The accused by digging his land had undermined the foundation of the applicant's wall. The applicant's house collapsed in consequence and I am informed that three persons were killed. A police inquiry followed and the accused was challenged under Section 304-A. When the case came into Court the applicant who is the owner of the house and the father of two of the persons who were killed filed a complaint under Section 304-A. Strictly speaking he should have been examined on that complaint, but the order passed by the Magistrate was in substance a reasonable one. It was that he was already inquiring into the matter on the police chalan, but that he was willing to hear any witnesses put forward by the complainant and decide after hearing them whether he should deal with the case under Section 304-A.
2. The present application was put in at' a late stage of the case when the evidence was nearly complete. No previous application had been made to the District Magistrate, and though the application does ask for a transfer to some Court outside Muttra no real reason is shown why no Court at Muttra can be competent to try it. Even as regards the particular Magistrate in whose Court the case is pending, although some allegations were made against his impartiality which he has now denied, the real reason on which the transfer is pressed is that he has continued to treat the case as one under Section 304-A instead of charging the accused with the graver offence under Section 304. If a Magistrate convicts an accused on a minor charge when he should have committed him to the Sessions on a graver charge there is a remedy provided by the law; but it would be a very dangerous thing for the High Court to interfere in a pending case and transfer it from the Court which is seised of it because the Court during the hearing of the case takes a particular view of the law or the facts. I may add also that in a charge of this nature which is 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 this Court would exercise its power 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. For all these reasons I dismiss this application.