1. In this case, a Rule was issued for transfer on the ground that the learned Deputy Magistrate, having made up his mind to commit the accused to Sessions before the defence was heard and the witnesses cross examined, was acting in an unjudicial and prejudiced frame of mind; and secondly, that the learned Deputy Magistrate, having made a local investigation without recording the result, has pot himself in the position of a witness and in the interest of justice ought not to be allowed to proceed with the case.
2. We take the second point first as it is of the least importance. As a matter of fact, if the Deputy Magistrate has put himself in the position of a witness, the commitment of the case to the Sessions will meet the ends of justice, inasmuch, as he will be able to be called as a witness at the Sessions. But we find that he went to the spot to enable him to understand the evidence at the special request of the defence, and on his return he re-considered the whole of the prosecution evidence and expressed his opinion that on that evidence as it stood, the case must be committed to the Sessions. Now had the defence waited for one more adjournment, they would, in accordance with the decision of this Court in Phanindra Nath Mitra v. King-Emperor 12 C.W.N. 1014 : 8 Cr.L.J. 221 have had no locus standi, nor could they call upon the Magistrate to have the witnesses cross-examined or to have the defence witnesses examined. It is only because they applied before the prosecution case was absolutely closed, that after all the witnesses but one had been examined, that they are entitled to this indulgence of cross-examination. Now having got this indulgence, it will be for them in a Sessions case by cross-examination and by defence witnesses to clear away the whole of the prosecution case. If any case remains to go to the Jury, the Magistrate is bound to commit. It is urged before us that the defence is absolutely certain of entirely clearing away and breaking down the prosecution case. We hope it may be so, and we are perfectly certain that if he is, the learned Magistrate himself will be the first person to hail the opportunity of discharging these accused. He has shown a very open mind in other respects although he unfortunately by too great honesty revealed the opinion which every Magistrate must necessarily form after hearing the whole of the evidence that there was a prima facie case to go to the Jury. We think that the very fact that he has candidly admitted the difficulty in which the new provisions of the law have placed him shows that he is fully prepared to give effect to any new turn which the case may take on cross-examination and on defence. But as we have pointed out, it will have to be an entirely new turn which would justify him in not committing if any case remains to go to the Jury.
3. We do not, therefore, think that the accused persons are at all likely to be prejudiced. The Magistrate has not the decision of the case in his hand in any way, and if he commits in the face of the prosecution breaking down entirely, the matter can be easily remedied in this Court by a further application. The Rule is, therefore, discharged.