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Dupeyron and anr. Vs. Driver - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal495
AppellantDupeyron and anr.
RespondentDriver
Cases ReferredGrish Chunder Ghose v. The Queen
Excerpt:
transfer of criminal case - criminal procedure code (act x of 1882), section 526--reasonable apprehension in the mind of the accused--real bias--incidents calculated to create apprehension of bias. - .....warranted by law, and was calculated to create apprehension in the mind of the accused that the magistrate was biased against him. 'we do not say that this shows that there was any real bias in the mind of the magistrate. on the contrary, we accept his explanation as to the reason why, notwithstanding that he released the accused on bail, he made this order. but, as we have said above, the order was calculated to create a reasonable apprehension in the mind of the accused that there was a bias against him.7. that being so, we think it expedient for the ends of justice that the transfer applied for should be granted under clause (e) of section 526 of the code of criminal procedure.8. the next question is, to what court should the case be transferred. mr. sinha for the complainant,.....
Judgment:

Banerjee and Gordon, JJ.

1. This is a rule calling upon the Magistrate of the District to show cause why the case should not be transferred from the file of the Deputy Commissioner of Manbhum to some other Court in the same District, or in any other-District competent to try the same.

2. Various grounds are stated in the three affidavits put in on behalf of the petitioners upon which we are asked to grant this application for transfer. Some of these statements appear from the explanation submitted ,by the Deputy Commissioner to be inaccurate, and there are others that appear to be disingenuous. The conduct of the petitioners, who are the deponents in these-affidavits, in making statements of this sort, is, we need hardly add, highly reprehensible. Whilst expressing ourstrong disapprobation of the conduct of the petitioners in making statements like these, we do not think that they can be-regarded as sufficient ground for refusing the application, if, leaving out the- statements to which our remarks apply, there still remains enough to make a transfer of the case desirable for the ends of justice.

3. The statements which in our opinion render such transfer desirable are those contained in paragraphs 16, 17, 34 and 35 of the second affidavit put in on behalf of the petitioners. The statements made in the 16th and 17th> paragraphs run thus:

16. That on the next day, at about 5-30 P.M., the Deputy Commissioner came to Court to deliver judgment and asked the accused whether he-admitted a letter purporting to have been written by him. The accused wanted to see the letter, but the letter not being with the record, the Deputy Commissioner left the Court, and after a few minutes came back, followed by Mr. Driver, the complainant, with a letter in his hand.

17. That the Court then handed over the letter in question to the-accused, and asked him whether he admitted the letter; but the accused said that as the prosecution had been closed as well as the defence, and the Court, had come prepared with the judgment for delivery, he was advised not to answer any further question.

4. It was contended by Mr. Sinha, who appeared to show cause, that as these statements relate to a previous trial which has come to an end, they cannot be taken to affect the present question. We do not think that this (sic) is sound. The case that is now pending, and for the transfer of which this application has been made, is one of three cases which are connected with one another, and the case, in the course of which the incidents narrated in paragraphs 16 and 17 of the affidavit quoted above occurred, was the first of the three. The complainant in the present case is Mr. Driver, the complainant in the first case; and therefore the statements made in these two paragraphs of the affidavit are, in our opinion, not altogether immaterial to the present question. With reference to these two paragraphs of the affidavit, the learned Deputy Commissioner, in his explanation, does not say anything specifically. We may therefore take it that the statements are correct.

5. It was contended, however, that, though the statements may be correct, they do not necessarily show any bias on the part of the Magistrate against the accused. That may be true; but in dealing with applications for transfer like this, what this Court has to consider is not merely the question whether there has been any real bias in the mind of the presiding Magistrate against the accused, 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 Magistrate, are nevertheless such as are calculated, to create in the mind of the accused a reasonable apprehension, -that be may not have a fair and impartial trial Of course, it is not every apprehension of this sort that should be taken into consideration; but where the apprehension is of a reasonable character , there, not with standing that there may be no real bias in the matter the fact of incidents having taken place calculated to raise such reasonable apprehension ought to be a ground for allowing a transfer, such as the one that has been asked for In matters like these, 'the law,' to use the words of Lush, J., in the case of Serjcant v. Dale L.R. 2 Q.B.D. 568,,' has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away every thing 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.' And the same view was expressed by this Court in Grish Chunder Ghose v. The Queen-Empress I.L.R. 20 Cal. 857.

6. The same remarks, we think, apply to the statements contained in paragraphs 34 and 35. The Magistrate, notwithstanding that he released the accused on bail during the trial of the second case, still required him to report himself to the authorities at Purulia, and when the accused, applied for leave to go to Chaibassa and to Calcutta, his prayer was granted only so far as his going to Chaibassa was concerned, the other part of his prayer being refused. The Magistrate says he did this because he had reason to think that the accused might abscond. The order is not warranted by law, and was calculated to create apprehension in the mind of the accused that the Magistrate was biased against him. 'We do not say that this shows that there was any real bias in the mind of the Magistrate. On the contrary, we accept his explanation as to the reason why, notwithstanding that he released the accused on bail, he made this order. But, as we have said above, the order was calculated to create a reasonable apprehension in the mind of the accused that there was a bias against him.

7. That being so, we think it expedient for the ends of justice that the transfer applied for should be granted under Clause (e) of Section 526 of the Code of Criminal Procedure.

8. The next question is, to what Court should the case be transferred. Mr. Sinha for the complainant, suggests that the case should be transferred to the Court of the District Magistrate of Burdwan as being the Court nearest to Purulia. We think that the suggestion is a fair one, and we accordingly direct that the case be transferred to the Court of the District Magistrate of Burdwan for trial.


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