Shiv Dayal, J.
1. One Bisroo filed a complaint against Bisram contemner No, I under Sections 497 and 498 of the Penal Code in the Court of Mr. M.P. Raturi, Judge-Magistrate, Mahasamund. However, the ease was registered only under Section 498 of the Penal Code. On 9-8-1961, prosecution witnesses were examined before charge. On 11-8-1961, Mr. Thite, Pleader, who was representing the accused, intimated to the Court the intention to move for a transfer of the case to another Court and prayed for stay of the trial.
2. On 3-10-1961 an application for transfer was made under Section 528, Criminal Procedure Code, to the Additional District Magistrate, Raipur, for transfer of the said criminal case from the Court of Mr. Raturi on the grounds that Mr. Raturi had kept this case on his own file when the offence was triable by a Magistrate of the second class; that Mr. Raturi did not allow the defence counsel to cross-examine the witnesses fully; and that when the prosecution witnesses were being cross-examined by the defence counsel, the Magistrate uttered these words:
Raghupati Raghav Rajaram Jitna. Paisa Utna Kam'. All this made the accused to apprehend that he would not receive justice in that Court. Mr. S.A.A. Rizvi, Advocate, Raipur, and Mr. Mohammad Ayoob, Pleader, Raipur, represented the applicant.
3. Mr. Raturi took exception to these allegations as scandalising his Court.
4. Notices were issued by this Court to Bisram accused and his counsel of Raipur to show cause why they should not be punished for contempt of Mr. Raturi's Court. Bisram stated in his return that adequate opportunity was not given to his counsel for cross-examination and the Magistrate uttered the words quoted above. Ho also mentioned that Mr. Thite had demanded Rs. 100/- for conducting the transfer application at Raipur, which amount he was unable to pay. Mr. Rizvi and Mr. Ayoob stated that being inexperienced lawyers, they acted upon the instructions of the accused in drawing up the application for transfer. However, all the three have apologised.
5. The allegation that Mr. Raturi uttered the words 'Jitna Paisa Utna Kam' was a serious one indeed. It is true that in his report to the Additional District Magistrate, the Magistrate emphatically denied it. But Mr. Raturi's statement in that report is not conclusive or incontrovertible. The report of a Magistrate on an application for transfer is not a matter which is recorded by him as the presiding officer in the course of a judicial proceeding. Section 526, Criminal Procedure Code, gives a right to the parties to move for transfer if there is reasonable apprehension against the Magistrate's impartiality. In Reg v. Pestanji Dinsha 10 Bom HCR 75 at p. 81 there are observations that the statement of the Judge, who presided at a trial, whether it be in a criminal or a civil case is, as to what has taken place at the trial, conclusive. But a distinction must be drawn between what is part of the record of the Court and a report submitted in response to or for the purpose eliciting the truth of an allegation contained in an application for transfer or in an affidavit supporting it. Such a report to the superior Court does not partake of the nature of the record of the Court and has no incontrovertible quality attached to it. Such a report does not partake of the character of a judicial proceeding; it is essentially administrative in character. It can be contradicted and can even be disbelieved for sufficient reasons. It is a different matter that ordinarily weight would be attached to a statement of the presiding officer of a Court.
6. In the case of statements made by Judges of superior Courts of record, they are regarded in the light of the record of the Court, perhaps because of the fact that they are credited with the same infallibility as was claimed in the ancient times by the Crown, Pollock and Maitland in their history of English Law, Vol. II, Pp. 669, refer to the distinction between 'Courts of record' and Courts that are 'not of record'.
The distinction that we still draw between 'Courts of record' and Courts that are 'not of record' takes us back to early times when the king asserts that his own word as to all that has taken place in his presence is incontestable. This privilege he communicates to his own special Court;
its testimony as to all that is done before it is conclusive. If any question arises as to what happened on a previous occasion the justices decide this by recording or bearing record (recordanture, portant recordum). Other Courts, as we have lately seen, may, and, upon occasion, must bear record; but their records are not irrefragable; the assertions made by the representative of dooms-men of the shire-moot may be contested by a witness who is ready to fight. No easily slip into saying that a Court whose record is incontrovertible is a Court which has record (habet recordum) or is a Court of record, while a Court whose record may be disputed has no record (non habet recordum) and is no Court of record.
7. No doubt in such cases there is the possibility of the Magistrate being embarrassed but it is no unqualified duty of the superior Court to protect subordinate Courts from such embarrassment; it can never be at the cost of justice. Where a superior Court has to ascertain the truth of an allegation, no avenue can be shut out which might lead it to the truth.
8. While submitting his report to the Additional District Magistrate, Raipur, regarding the transfer application, Mr. Raturi sent a statement in writing dated 13-10-1961, signed by Shri K.S. Thite, Pleader. This gave us an impression that he did not have implicit faith in himself and had forwarded a statement of the counsel to bear out his report. In his written statement, Mr. Thite denied the words 'Jitna Paisa Utna Kam' being uttered by the Magistrate and also that he was obstructed in cross-examination. It was argued that Mr. Thite had himself apprehended that justice would not be done to his client, otherwise he would not have moved for the transfer. In proceedings dated 11-8-1961 the learned Magistrate said 'Shri Thite presented an application under Section 526 Cr.P.C. for transfer from this Court.' The figure '526' was by an over writing changed to '528 (I-C)'. Mr. Thite's application of that date was silent as to the ground for the intended transfer. It appears that originally no section was mentioned under which the transfer was intended but by an interpolation it was added that the transfer was to be applied for under Section 528 (I-C). The coincidence that there was a correction in the Magistrate's order and a corresponding amendment in the counsel's application appeared at the first sight to be not insignificant.
9. We examined Mr. Thite. With reference to the allegation that the Magistrate uttered the words 'Raghupati Raghav Rajaram Jitna Paisa Utna Kam', Mr. Thite, in his written statement D/- 13-10-1961 had said that it was not true. In his statement before us he said that Mr. Raturi did not utter those words in the Court in his presence, but he had heard him say that expression some times in the Bar Room and that he might have 'heard those words from his mouth twice, thrice or may be ten times also'. Mr. Thite, in paragraph 5 of his written statement dated 13-10-1961 had said, 'The application for transfer proposed to be filed on my advice was purely on the point of jurisdiction and as to proper forum in the case. The allegations made by the accused Bisram are false and he had never referred anything about his grievances to me'. To us Mr. Thite related an altogether new ground for transfer which he said was in his mind. He says:
Revenue proceedings were going on before the Tahsildar, Mahasamund, for the removal of the accused Bisram, who was the Kotwar, on the complaint of the villagers. The whole village had made an application against him because he was a Gadha by caste which is supposed to be an untouchable class. Bisru complainant was a Kurmi. I advised my client that since both the cases (criminal and revenue) were going on at the same place, namely, Mahasamund, there was likelihood of his revenue case being prejudiced if the criminal case were decided first and a copy of that judgment were filed in the revenue proceedings. There was also apprehension that he could be dismissed if he were convicted by the criminal Court. I also told him that as both the proceedings were going on at the same place the one which would be decided first would prejudice the other. Therefore, I advised him that an application for transfer should be made to the District Magistrate, Raipur. I was appearing only in the criminal case, not in the revenue proceedings.
This ground of transfer is not only not to be found in the written statement of Mr. Thite, which was sent to the Additional District Magistrate, but it is also contradictory to what he said there in paragraph 5. When pointedly asked which of the two statements was true, he replied that the one in paragraph 5 of that written statement was true, but if he had drafted the application for transfer he would have also included the now ground which he described before us. Therefore, Mr. Thite did not go to Raipur to make an application for transfer and when he came to know that Bisram had engaged local counsel at Raipur, he withdrew himself from the criminal case also. Mr. Thite further told us that he had submitted this written statement of 13-10-1961 because Mr. Raturi wanted him to make it. He says;
He (Magistrate) wanted me to make an application by way of my opinion on the allegations made against the Magistrate.... The District Magistrate, Raipur, did not ask my explanation or answer or opinion on the allegations made by Bisram before him.
10. On this statement being sent to Mr. Raturi asking him to send his report, he has branded Mr. Thite's statement made here as false. He denies that he ever uttered those words and he also denies that it was at his instance that Mr. Thite submitted the statement dated 13-10-1961.
11. Mr. Rajendra Singh argues that the report of Mr. Raturi cannot be accepted at its face value. Our attention is invited to his observations:
Further, I am to submit that it is Mr. Thite who, on his own accord, presented the application dated 13-10-61 (Ex. Z) voluntarily in the Court to safeguard his own interest and to maintain his prestige in the profession.
Learned Counsel asks us to consider that no question of Mr. Thite safe-guarding his own interest or maintaining his prestige in the profession arose; the application for transfer which contained the objectionable statement 'Jitna Paisa Utna Kam' was not made by Mr. Thite, Mr. Thite stated in this Court that in the order sheet dated 11-8-1961 lie Magistrate had first mentioned that the application was under Section 526, Criminal Procedure Code, but later on corrected it by an overwriting to be read as '528 (I-C)' Cr.P.C. In his report the Magistrate says that by mistake he mentioned Section 526 in the note sheet but it was then and there corrected by him. as Section 528 (i-C), Cr.P. Code. The mention of Section 526 is emphasised. Learned Counsel further argues that the offence under Section 498, Penal Code being triable by 'a Presidency Magistrate or a Magistrate of the 1st or 2nd class', there could not be the question of the case being transferred, in the midst of the trial, from Mr. Raturi's Court on the ground of want of jurisdiction. Moreover, if Mr. Thite wanted the case to be transferred because of revenue proceedings which were going on at the same place, nothing would have been gained by the criminal case being transferred to a 2nd Class Magistrate at Mahasamund itself. The suggestion is that Mr. Thite in fact apprehended that his client would not get justice at the hands of the Magistrate, but when his client engaged a local counsel at Raipur for conducting the transfer application, Mr. Thite fell in the hands of the Magistrates. On being specifically put by Mr. Ra-jendrasingh, Mr. Thite admitted that he usually appeared in criminal cases and rarely in civil Courts, suggesting that Mr. Thite was placed in an embarrassing position because of his professional work being concentrated in Magistrates' Courts. (Separation of the judiciary has not yet been affected in the Raipur district).
12. In any event, the two statements of Mr. Thite and the two reports of Mr. Raturi present a prevaricated picture. One of the two has been bold enough to make false and mischievous statements. Mr. Thite says that he heard Mr. Raturi uttering that expression in the Bar Room on several occasions. If those words were uttered even in the Bar room by a person whose duty is to discharge judicial functions, it is most reprehensible, to say the least. In the conduct of judicial proceedings it is essential not only that justice should be done but that it should also seem to be done as was stated in Rex v. Essex Jutices Ex parte Perkins 1927-2 KB 475.
13. Mr. Raturi completely denies to have even come across that expression before he received a copy of the transfer application from the Additional District Magistrate, Raipur. Since we ate not holding any enquiry either against Mr. Thite or against Mr. Raturi, we stop here so far as this point is concerned.
14. In the present proceedings all that we are to see is whether the accused and his two counsel of Raipur are guilty of contempt of Court in attributing to Mr, Raturi the utterance of the expression 'Jitna Paisa Utna Kara'. We are bound to say that a doubt clearly emerges as to whether the expression 'Jitna Paisa Utna Kam' was the creation of Bisram's brain. There is force in the argument that the matter is not free from doubt; may be that Bisram heard this expression being uttered by Mr. Raturi; may be that Mr. Thite, who admittedly took the initiative in advising the accused to move for transfer, mentioned to him that the Magistrate was in the habit of uttering those words.
15. Power of this Court to punish for contempt is always to be cautiously used; more so while dealing with allegations made in an application for transfer. Unless it is found that they were recklessly made by concocting or mischievously twisting facts, for ulterior motives, the applicant or his counsel cannot be punished for contempt. It is one thing to dismiss the applicatior and another to punish the applicant. In the peculiar circumstances of this case, we are unable to hold any of the contemners guilty of contempt.
16. Notices issued to the three contemners are discharged. The criminal case has already been transferred from Mr. Raturi's Court. A copy of this order shall be sent to the District Magistrate, Raipur. The record shall be returned forthwith.