1. This is a rule directed against the Additional District Magistrate of Ferozepore to show cause why this case should not be transferred from his Court to a Court of competent jurisdiction in another District.
2. The petitioner was a Naib Tahsildar, (Grow More Food) at Zira and it is alleged that an offence of corruption under the Prevention of Corruption Act, 1947, and Section 161, Penal Code, was committed by the petitioner on 27-4-1951. A raiding party consisting of the Additional Superintendent of Police Mr. Tir-lochan Singh, Resident Magistrate Zira Mr. Udham Singh, Tahsildar Mr. Sant Singh and Sub-Inspector Iqbal Singh of Zira, and some other private persons are alleged to have found one Bhagwan Singh passing a currency note of Rs. 100/- to the petitioner at Makhu. On 28-4-1951 the petitioner was arrested and he was suspended on 2-5-1951 as from 28-4-1951. On the 2nd May the Commissioner of Jullundur Division passed an order by which he allowed the petitioner to draw half his monthly salary as subsistence allowance along with the usual deaniess allowances in full which was later on to be reduced to three-eighths of his monthly pay. By an order dated 14-5-1951 the Collector Mr. N. K. Mukherjee, ordered that the petitioner should remain at Zira proper and he added in this order the following words : 'The Resident Magistrate Zira should keep an eye on him'. On 10-7-1951 the case was put in the Court of the District Magistrate who sent it for disposal to the Additional District Magistrate on 12-7-1951. There was one hearing of the case in the Magistrate's Court at which the petitioner was not present but he appeared on 4-8-1951 and the case was then postponed to 13-8-1951 when Charan Singh, a witness, was examined. On that date Mr. Shadi Lal Palta who was appearing for the petitioner was busy in the Sessions Court and the petitioner asked the Magistrate to take the case up at a later time which the Magistrate refused. The Magistrate has in his explanation stated that no such request was made to him, but the petitioner has in his affidavit stated otherwise. This by itself would not have been a matter but for the fact that in his explanation the Additional District Magistrate has stated as follows in para. 3 :
'The petitioner had been a Naib Tahsildar and could easily cross-examine such a formal witness if he cared to.'
3. The case was then adjourned to 27-8-1951, On that date the petitioner made a request to the Court that his counsel was ill and was unable to be present in Court. This request of the petitioner was supported by a medical certificate showing that Mr. Shadi Lal Palta was unwell on that day. The Magistrate instead of postponing the case, as he should have in this case, only gave two hours to the petitioner to engage another counsel. In a case of the type which was in his Court where the whole of the future career of the petitioner was at stake it was in my opinion, not right for the Magistrate to take such a view of the matter as this. Under the Constitution jn Article 22(1) an accused person has the right to be defended by a counsel of his choice and the petitioner had engaged Mr. Shadi Lal Palta who is one of the leaders of the Ferozepore Criminal Bar. But the learned Magistrate did not think it proper to take any notice of the certificate which had been sent by Mr. Palta on the request which had been made by the accused. The reason given by the Magistrate that if he had allowed this petition the State would have incurred a good deal of unnecessary expense in so far as their witnesses were present, loses sight of the constitutional rights of a citizen. In all civilized countries wherever English system of jurisprudence prevails Courts have always tried to give every kind of facility to an accused to defend himself. Merely because there were certain witnesses for the prosecution present does not seem to me to be a sufficient reason why the case should not have been postponed and the prayer of the petitioner granted if that was necessary in the interest of justice as I think that in this case it was.
4. The petitioner has also made a complaint that he has not been paid his subsistence allowance which was ordered to be paid by the Commissioner. It may be a mere coincidence that circumstances have arisen in which the petitioner has not been paid, but it is not a circumstance which will not produce in the mind of a petitioner a reasonable apprehension that the District Magistrate is not against him.
5. A complaint has also been made in this Court that the petitioner has been ordered to remain at Zira proper, and that a Resident Magistrate has been asked to keep an eye on him. Under what provision of law this latter order has been passed I am unable to find. Again under the Constitution in Article 19 a citi-zen has a right to go anywhere he likes within the Union of India even though he may be under a cloud or there may be a suspicion or even a case pending against him. If his trial was going on at Ferozepore, J cannot understand why he should not have freedom of movement if for nothing else at least for the purpose of looking to his proper defence.
6. The affidavits and explanations show that many of the Magistrates are connected with the case against the petitioner in one form or another. I have already given the constitution of the raiding party who are alleged to have witnessed the passing of a hundred rupee currency note. Ch. Bhim Singh Sub-Divisional Magistrate Moga has conducted an enquiry against the petitioner giving an adverse report and the Tahsildar Mr. Sant Singh has made another report against him. The explanation of the District Magistrate proves facts which show that the atmosphere in the District is not conducive to the trial of the petitioner being free from every kind of prejudice. And howsoever much one may like to think that judicial integrity of the trying Magistrate will remain unshaken, it is difficult to shake off petitioner's reasonable apprehension as to the fairness of the trial in the District.
7. It is a truism which is worth-while repeating that it is of paramount importance that persons arraigned before the Courts should have confidence in the impartiality of those Courts and that is the spirit of the ne f Constitution, but when the liberties of the citizen are placed in the hands of Magistrates who are also Executive Officers or are under the direct control of the Executive, it is not surprising that confidence becomes a diminishing commodity. It is one of the essentials for preservation of a peaceful and progressive society that judicial tribunals should not be sullied with prejudice or even seeming prejudice. The fountain of justice should therefore be kept pure and demonstrably so. The case therefore falls within the rule laid down in 'Sardari Lal v. The Crown', 3 Lah 443, where in somewhat similar circumstances . Broadway J. transferred the case from the District.
8. From the circumstances which J have mentioned above it appears to me that it is a fit case in which I should exercise my powers under Section 526, Criminal P. C. I therefore order that this case be transferred from the Court of the Additional District Magistrate, Ferozepore to the District of Jullundur and I direct that the District Magistrate of Jullundur should send it for disposal to such Magistrate as he thinks fit.
9. As this is a case under the Prevention of Corruption Act in which the maximum sentence is seven years it would be a fit case which should be tried by a Court of Session. In my opinion in cases of this kind it is only right that an accused person should be tried not by a Section 30 Magistrate but by a judicial officer of the standing of the District and Sessions Judge. I therefore order that if after taking all the evidence which the prosecution wishes to adduce the Magistrate finds that a prima facie case has been made out and he frames a charge he should then commit the case to the Court of Session at Jullundur and J direct that the Sessions Judge should try the case himself.
10. Whatever I have said above should not be taken to be any expression of opinion either on the guilt or innocence of the accused.
11. The records should be sent back to theDistrict Magistrate, Jullundur and I direct thepetitioner to appear before him on 15-10-1951.I also direct that every facility should be givento the petitioner to make proper arrangementfor his defence and no kind of impedimentshould be placed in his way.