1. This is an application for transfer of a criminal case.
2. A report was made by one Gopal Sonar against Shah Muhammad tinder Section 452 of the Indian Penal Code. The Sub-Inspector Sartaj Singh challaned this case and sent it to the Court of the Tahsildar of Dudhi who is a Second Class Magistrate. On an application for transfer made to the District Magistrate the latter transferred that case to his own file. After having tried the case he discharged the accused Shah Muhammad under an order dated the 12th of January 1924. A perusal of that judgment will show at once that the learned District Magistrate formed a very adverse opinion of the conduct of Sartaj Singh He even was inclined to accept the view that the proceedings were a deliberate act of revenge engineered by Sartaj Singh with the connivance of Gopal Sonar and a. certain Janardan Singh constable. He suspected that the whole case had been deliberately intended to involve the accused in a complete ruin. He also commented on the general conduct of the Sub-Inspector and remarked that it disclosed a marked tendency towards crookedness in that Investigating Officer. On the day of discharge the learned District Magistrate recorded a statement of Imdad Husain, a Mukhtar-i-am of Barhar Raj to the effect that the Sub-Inspector, Sartaj Singh be prosecuted under Section 168 of the Indian Penal Code and that his statement should be taken as a complaint. It was on this statement treated as a complaint that the prosecution of the applicant started.
3. Before any evidence commenced an application was made on behalf of the accused Sartaj Singh under Section 526, Sub-clause 8 of the new Code of Criminal Procedure requesting the Magistrate to postpone the case in order to give the accused an opportunity to apply to the High Court for a transfer. In spite of that application the learned District Magistrate proceeded to record the evidence of the prosecution witnesses and then passed an,, order fixing the 22nd of February 1924 for the next hearing.
4. The learned District Magistrate was entitled to treat the statement of Imdad Husain as a complaint. Having taken cognisance of the case on a complaint he was not bound to transfer the case to any other Magistrate. Nevertheless after the application for transfer had been made to his Court he should not have recorded any evidence at all but should have adjourned the case at once. Under the old Code of Criminal Procedure when such an application was made the Court was bound to postpone the case in such manner as would afford a reasonable time for the application being made and an order being obtained thereon before the accused was called on for his defence, that is to say, after the application had been made the Criminal Court had no power to call on the accused for his defence. Under the new Code, however, it is the duty of the Criminal Court to postpone the case at once. Section 526, Sub-clause 8 is imperative and it omits the former expression 'before the accused is called on for his defence'.
5. I am also satisfied that when the learned District Magistrate has already formed a very strong opinion on the conduct of the Sub-Inspector as disclosed by the judgment dated the 12th of January 1924 it would be unfair and unjust to the accused that case against him should be tried by the same District Magistrate.
6. I accordingly allow this application and order that the case be transferred from the file of the District Magistrate of Mirzapur to the Court of the District Magistrate of Allahabad who will either try the case himself or transfer it to any other Magistrate under him competent to try the case.