S.K. Ghose, J.
1. This is an application for transfer under Section 526, Criminal P.C., the relevant facts being these: Petitioner 1 was the Managing Director of a certain Limited Company, and petitioner 2 was another employee. On 9th December 1935 one of the Directors Nanda Kumar Singh, filed a complaint before Mr. L.K. Sen, Suburban Police Magistrate, Alipore, alleging that the petitioners had misappropriated the funds of the company. The result of this was that after certain preliminary proceedings a case was started against the petitioners, on 25th May 1936, charges were framed under Sections 406, 120-B and 424, I.P.C. On 1st September the two accused were examined under Section 342, Criminal P. C, and the case was adjourned to 15th September. On that date the defence asked for the recall of certain witnesses for further cross-examination. The learned Magistrate allowed the prayer in regard to some witnesses and rejected it in regard to others. Thereupon the accused asked for an adjournment to file a petition under Section 526, Criminal P.C., for the transfer of the case from the file of the trying Magistrate, Mr. L.K. Sen. They first moved the Additional District Magistrate, 24-Parganas, who refused the prayer by his order dated 8th October 1936. Thereupon the petitioners moved this Court. In the petition various grounds are stated and the main grievance of the petitioners would appear to be that the learned trying Magistrate was prejudiced against them inasmuch as he was giving facilities to the prosecution for the production of evidence, while refusing similar facilities to the defence. A further ground was stated in Para. 24 of the petition which runs as follows:
That on or about 15th September 1936 your petitioners have obtained informations regarding the following matter: P.W. 20, the complainant is the proprietor of the Salkia Transport Agency and has several motor buses and lorries for carrying on his business. One Babu Ajit Sen, is a son of the learned Magistrate and acts as a salesman of Messrs D.M.G. Ltd. Agents for Mercedes Benz cars for Bengal, Bihar and Orissa. Your petitioners have information that Babu Ajit Sen was negotiating with P.W. 20 for purchase through him of motor cars and chassis from the said company and as a result of the negotiation P.W.20, the complainant purchased through Babu Ajit Sen one chassis. Your petitioners are appending hereto copies of registration certificate showing purchase of chassis by P.W. 20 from the D.M.G. Ltd. and an affidavit sworn by one Sukumar Bose.
2. In support of this allegation the petitioners annexed to the petition a copy of a letter from the Deputy Commissioner of Police, Public Vehicles Department, bearing the date of 23rd September 1936 going to show that the motor car was registered in the name of Nanda Kumar Singh on 4th August 1936 and also an affidavit bearing the same date, namely 23rd September 1936, and sworn by one Sukumar Bose.
3. The present Rule was issued upon para. 24 and so we are now confined to the definite ground alleged therein. The petition is resisted in this Court both by the complainant appearing through the learned Advocate-General and by the Crown. The complainant has filed a counter affidavit traversing the grounds alleged in the petition and also the affidavit filed in support thereof and the learned trying Magistrate has also submitted an explanation. In this Court the matter has been argued upon the footing that a fair and impartial trial cannot be had in the Court of Mr. L.K. Sen, Suburban Police Magistrate of Alipore. The principle upon which transfer may be ordered by this Court on this ground is well-known. To quote the well-known words of Lord Hewart, C.J., in Bex. v. Sussex Justices (1924) 1KB 256:
It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
4. To the same effect are the words of Lush, J. in Serjeant v. William (1878) 2 Q B D 5.58:
One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.
5. The principle has been discussed so often in such a variety of cases that I cannot do better than refer to the plain words of the section itself, namely, Clause (a), Sub-section (1), Section 526 which state as a ground that 'a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto.' Along with this I may refer to Clause (e) which is to this effect: 'that such an order is expedient for the ends of justice, or is required by any provision of this Code.' It has always been held that the standard which the High Court has to place before itself in order to decide the propriety or otherwise of transfer is the standard of the petitioner. I may content myself by referring to two cases, one the case in Amar Singh v. Sadhu Singh AIR 1925 Lah 361 where Shadi Lal, C.J. remarked as follows:
What the Court has to consider is not merely the question whether there has been any real bias in the mind of the presiding Judge against the applicant, but also the further question whether incidents may not have happened which, though they may be susceptible of explanation and may have happened without there being any real bias in the mind of the Judge, are nevertheless such as are calculated to create in the mind of the applicant a justifiable apprehension that he would not have an impartial trial.
6. To the same effect are the words of Mitra, J. in Kali Charan Ghose v. Emperor (1906) 33 Cal 1183, at p. 1190. Now, in the present case, having perused the affidavit and the counter-affidavit and having heard the arguments of both sides and also having perused the explanation of the learned Magistrate, the relevant facts to which we are at present confined would appear to be as follows: The complainant did enter into a transaction for the purchase of a motor car from the D.M.G. Ltd.; he did purchase the car on favourable terms and he completed the transaction and got the car registered. It would appear that a part of this happened after the complaint had been filed. The complaint was filed on 9th December 1935. It is stated by the learned Advocate-General on behalf of the complainant that the agreement for the purchase was signed by the complainant on 23rd March 1936 and the last payment was made in June following. It also is a fact that a son of the learned Magistrate is a salesman in the employ of the company from which the complainant purchased the car. In the affidavit filed by Sukumar Bose in support of the petition it is asserted that Babu Ajit Kumar Sen, son of the trying Magistrate, went to the house of Babu Nanda Kumar Singh, the complainant, in June last, and that Babu Ajit Kumar Sen succeeded in selling a chassis to the said Babu Nanda Kumar Singh. On the other hand, it is stated in the counter-affidavit that negotiations for the purchase started on 2nd December 1935 and agreement was actually signed on 23rd March 1936. Leaving aside the explanation of the Magistrate who had no personal knowledge of the facts and relying on the two affidavits it cannot be said that it is demonstrably proved that Babu Ajit Kumar. Sen could not have gone to see the complainant in June last or that Babu Ajit Kumar Sen could not have taken some part in this matter for the purchase of the chassis.
7. The learned Magistrate in his explanation relies on the counter-affidavit of the complainant. But so far as his own knowledge goes he says that he knew nothing at all about the transaction until the transfer application was filed. I wish to make it quite clear that we entirely accept the explanation of the learned Magistrate and we also do not see anything from which it can be said that if Babu Ajit Kumar Sen did take any part in the transaction his conduct was anything but bona fide. I wish to make it perfectly clear that we do not attach any blame either to the Magistrate or to Babu Ajit Kumar Sen. But, at the same time, we are not prepared to hold that the affidavit filed by the petitioners is entirely false on the sole ground that it is inconsistent with the counter-affidavit filed by the other side. The learned Additional District Magistrate says that in course of his order of 8th October 1936:
I would not have been prepared to impute to him (the trying Magistrate) the motives, the petitioners allege, because I know him very well to be a judicial officer of unquestioned integrity and fairness. The allegation made is less than fair to the learned Magistrate and does not reflect any great credit on the petitioner's lawyers.
8. We appreciate the force of this remark and for ourselves we are not prepared to take a different view of the judicial impartiality of the trying Magistrate. But this does not completely dispose of the matter before us. It appears to us that after all this question has been agitated so strenuously and the objection has been raised upon a personal ground, the learned trying Magistrate, however unwittingly would be placed in an embarrassing position, if he were asked to go on with the case and decide it himself. From that point of view we are sure that the learned Magistrate himself would not like to try the case. We do not overlook the fact that in his explanation he does not say that he has no objection to the transfer of the case from his file. It seems to us that in that explanation he has confined himself to the ground alleged in the petition. We do feel that the trying Magistrate would be placed in an embarrassing position and that on that ground an order for the transfer would be expedient for the ends of justice. We also do not overlook the fact that the trial of the case is very nearly finished and that the accused have been examined under Section 342, Criminal P.C. Mr. N.K. Basu appearing for the petitioners has given an undertaking that his clients would not ask for a de novo trial and that the case might be taken up from the stage which was reached on 15th September 1936, when the petitioners moved for adjournment in order to apply for transfer. The fact that such an undertaking was given by Mr. Basu in this Court has been taken into consideration by us in making the order. Upon these grounds we direct that the case be transferred from the file of Mr. L.K. Sen to that of some other Magistrate to be nominated by the District Magistrate of 24-Parganas. The rule is made absolute.
9. It is admitted that a son of the trying Magistrate is a salesman attached to a firm with which the complainant was carrying on business transactions. It is disputed whether in fact any particular business was done between the complainant and this gentleman. The case of the petitioners is that it was; and in support of that case they filed an affidavit sworn by one Sukumar Bose. There can be no question, unless this gentleman has-told deliberate lies, that business transactions were going on between the complainant and the trying Magistrate's son. On behalf of the complainant the learned Advocate-General invited us to say that this affidavit was false. I find it quite impossible to say any such thing with regard to it. When these allegations were brought to the notice of the learned Magistrate he proceeded to make enquiries and he nowhere says that he asked his son whether these allegations were true and that the son denied them; nor is there any affidavit from the son. On the other hand, the more important point is not whether Sukumar's affidavit is true or false but whether the petitioners themselves believe it. I see no reason whatever to suppose that they do not. Now, my learned brother has pointed out that we have power to order a transfer of the case if in our opinion such an order is expedient for the ends of justice. I am bound to say that in my opinion in circumstances such as these, it would be highly undesirable for this particular Magistrate to try this case, unless there are other more weighty considerations in favour of the opposite course.
10. The trial has been extremely lengthy; and it is now nearing completion. I can well understand that the District Magistrate would object to the waste of public time, which might result from a de novo trial. Similarly the complainant might well object to the additional expenses to be incurred and the inconvenience he would be put to. In their application before the Additional District Magistrate the petitioners themselves stated that they did not want a de novo trial, and before us Mr. N.K. Basu gave an undertaking that no such demand would be made. In reply to this, Mr. Mukherjee, who appeared on behalf of the Crown, objected that this undertaking was not binding upon the accused and once we order a transfer we can do nothing more. Now, I absolutely decline to say, that in the improbable event of the petitioners declining to honour their learned advocate's undertaking the powers of the Court are such that it would be impossible for us to pass a suitable order. As at present advised I must emphatically decline to accept that contention. I entirely agree with my learned brother that this rule should be made absolute.