J.P. Mitter, J.
1. This is an application for transfer of a criminal case from the Court of Shri J. M. Ghosh, Magistrate, 1st Class, Midnapore, to some other Court. There is also a prayer for setting aside an order of the said learned Magistrate, dated 26-11-1954, whereby the evidence or P.W. 3, a Government handwriting expert, was expunged.
2. The applicant is the Income-tax Officer of Midnapore. Upon his complaint, opposite party No. 2, Saroj Kumar Roy, a practising lawyer of Midnapore, was sent up to stand his trial upon a charge of perjury under Section 193, Penal Code. The proceeding concerned commenced in March, 1954. The Public Prosecutor of the district was engaged on the complainant's behalf to conduct the prosecution.
3. The said P.W. 3, the handwriting expert whose evidence was expunged, was undoubtedly a very material witness in the case. It appears that on 23-4-1954, the date fixed for prosecution evidence, the said handwriting expert was absent. His inability to appear in Court on that date had, however, been intimated to the Court through a radiogram transmitted by the Criminal Investigation Department, Government of West Bengal. Owing to the absence of the said witness, the case had to be adjourned to 26-4-1954, when the said expert was in fact examined-in-chief. On the next date of hearing namely, 15-5-1954, the Public Prosecutor was absent, though certain prosecution witnesses were in attendance. There being no lawyer to examine these witnesses, the case had to be adjourned to 11-6-1954.
Owing to the absence on that date of some of the prosecution witnesses, the case had to be adjourned once more. After two more adjournments, the further hearing of the case was fixed for 3-9-1954. On that date the learned Magistrate passed the following order :
'No other P.W. is available. I do not think it proper to wait indefinitely for any further prosecution witness. Heard both sides on the framing of charge on the evidence already on record.
A charge under Section 193, I.P.C, is framed against the accused who pleads not guilty. To 29-9-54 for the cross-examination of the P.Ws. and for further P.W. if any.
Summon all the P.Ws. for this day. Accusedas before.'
4. On the next date of hearing, namely, 22-9-1954, the prosecution asked for leave to recall some of its witnesses for further examination-in-chief. This prayer was refused, in our view, rightly. In spite of the learned Magistrate's previous Order requiring the presence of all prosecution witnesses on 22nd September, the said handwriting expert was absent. This witness' inability to appear on that date was the subject-matter of a communication which someone on behalf of the Special Superintendent of Police, C. I. D., West Bengal, addressed to the learned Magistrate. The said communication concluded as follows :
'I would, therefore, request you to kindly fix another date for his evidence and send a timely intimation to this office.'
Acting upon this communication, the learned Magistrate adjourned the case to 28-9-1954. The material part of the learned Magistrate's order was as follows :
'P.W. 3 is absent. Seen the letter sent by Superintendent, C. I. D. The case is adjourned to 28-9-54 for the cross-examination of the P.W.
Summon him once more and send a radiogram to the Superintendent for directing the witness concerned to attend Court that day positively.'
The witness was, however, unable to attend on 28-9-1954, this time due to his illness. Therefore, the case had to be adjourned to 27-10-1954 to enable the witness to attend to be cross-examined. By an order of 21-10-1954, the learned Magistrate altered the next date of hearing from 27th October to 12th November, 1954. The reason for the alteration was that the learned Magistrate had to go out of town in connection with a Parliamentary Bye Election, It appears that in spite of this order of 21-10-1954, the handwriting expert chose to turn up on 27-10-1954. There can be no doubt that on that date, at any rate, the handwriting expert came to know that the next date of hearing was 12-11-1954. The handwriting expert, however, did not present himself on 12-11-1954, whereupon the learned Magistrate passed the following order :
'The H. W. expert is not present even today. He was absent on the previous days also. The case has got to be adjourned.
Summon this, P.W. for the next date and also send a radiogram to the Special C. I. D. Supdt. for sending the witness positively on that date. The case is pending for a long time for this P.W. and if he be not available on the next date, the case will proceed without his cross-examination with whatever effect it may have. To 22-11-54.'
It appears that by a later order passed on that day, 22-11-1954, was also fixed for defence evidence and arguments if the defence should decline to call any evidence. On 17-11-1954 the prosecution asked for leave to recall a prosecution witness under Section 540, Cr. P. C. This prayer was rejected, in our view, rightly. On the same day, the learned Magistrate passed the following order ;
'As I am going to depose in a dacoity case on 22-11-54 at Basirhat, the date is shifted to 26-11-54. Inform parties and summon remaining P.Ws, accordingly.'
On the adjourned date, namely, November 26, 1954, the learned Magistrate received a further letter, dated 20-11-1954, from the Special Superintendent of Police, C. I. D., West Bengal, intimating that the said handwriting expert would not be available on that date owing to other engagements. The learned Magistrate, however, refused to adjourn the case any further and passed the following order:
'Seen the letter of the Special Superintendent intimating that the witness H. W. expert will not be available on this day in spite of this Court's repeated summonses and radiograms.
There have been several adjournments for this witness and any further adjournment for this witness as prayed for by the learned P. P. is not thought proper by me. So the evidence of this P.W. who is not available for cross-examination in spite of repeated summonses and radiograms is expunged. Parties to proceed.'
5. It appears that on 20-11-1954 the CourtInspector had already sent a radiogram to the Criminal Investigation Department, West Bengal, intimating that no further adjournment would be possible after 26th November. After the learnedMagistrate had ordered the evidence of the handwriting expert to be expunged, the Public Prosecutor filed a petition for stay of further proceedingsto enable his client to move the High Court fortransfer of the case to some other learned Magistrate.
The learned Magistrate accordingly stayed further proceedings and adjourned the case to 17-12-1954. On 20-12-1954 this Court was moved and the present Rule issued.
6. The order made by the learned Magistrate on 12-11-1954' was ominous and its purport was In due course transmitted to the Criminal Investigation Department The order expunging the evidence of the handwriting expert was not made until his failure to attend Court on 26-11-1954.
True, the Criminal Investigation Department, which appears to control the movements of Government handwriting experts, was not always in a position to spare a handwriting expert to be examined in any particular Court on any particular date, but in view of the many adjournments granted by the Court to enable the handwriting expert to attend to be cross-examined, the refusal by the learned Magistrate to grant yet another adjournment was not unreasonable, particularly in view of the fact that even on 20-11-1954 the Criminal Investigation Department was not in a position to say when in fact the witness concerned would be available. This is what was said in their letter of 20-11-1954:
'In consultation with the expert's tour programme the date 20-12-54 is suggested for his evidence in your Court and if that be fixed and intimation received well ahead of time to book that date for Midnapore, the expert will attend your Court on that date provided he be not in the meantime summoned by any superior Court.'
7. Mr. Meyer appearing on behalf of the petitioner conceded that to justify a transfer something more than a mere wrong order by the learned Magistrate was required so as to raise in the mind of his client a reasonable apprehension that he would not get a fair or impartial trial. Mr. Meyer appreciates that the inordinate delay which the failure of the witness to attend involved well-nigh exhausted the patience of the learned Magistrate who had given ample warning to the parties concerned about his intention to proceed with the case whether the handwriting expert presented himself or not on the adjourned date, namely, November 26, 1954.
In our view, no ground for the transfer of thecase from the learned Magistrate to some otherMagistrate has been made out. The application fortransfer accordingly fails.
8. Before we pass on to consider the next prayer of the petitioner, we must observe that this practice on the part of the Police to address a Magistrate direct for an adjournment is a most improper and, in certain circumstances, a very dangerous practice. The Police were no party to the proceedings arid we are surprised that they took it for granted that by the communications concerned they could obtain orders of adjournment.
Whether a case is to be adjourned or not is a matter of judicial discretion, and any interference with that judicial discretion by one who is not a party to the proceeding appears to us to amount to an interference with the course of justice. In fact, in the letters and radiograms which the Police addressed to the Court there were definite suggestions to the learned Magistrate to conduct himself in a particular way with regard to adjournments in the case.
The learned Magistrate in acting upon this correspondence allowed the prosecution an amount of indulgence which cannot be tolerated. In our view, the learned Magistrate ought never to have taken any notice of any of the private communications made to him by the Police. The proper way to apply for an adjournment is through one or other of me 'parties.' In this case the Court should have been moved for the adjournments concerned through the Public Prosecutor.
The Income-tax Officer being vitally interested in the prosecution, it was the duty of the Public Prosecutor to apply for and obtain these adjournments. There was nothing to preclude the Public Prosecutor from bringing to the notice of the Court the reasons given by the Police as to their inability to spare the handwriting expert concerned whenever his attendance was required by the Court. The grounds mentioned in the correspondence would in most cases, if properly put forward, appeal to a Court.
In our view, a Magistrate ought never to act upon an 'ex parte' private communications made to him in the matter of an adjournment of a case. It should make no difference if the private communication concerned should be from the Police. If the adjournments concerned were asked for in the ordinary way, upon notice to the accused, no exception could have been taken.
9. Although in the circumstances disclosed, we cannot regard the order of the learned Magistrate, dated 26-11-1954, to be a wrong order, we have, in view of the seriousness of the charge against opposite party No. 2, decided, not without reluctance, to give the prosecution yet another opportunity to produce the witness concerned for being cross-examined.
We would, therefore, set aside the order of the learned Magistrate, dated 26-11-1954, and direct that the witness concerned be made available for being cross-examined by opposite party No. 2 at any time before 15-7-1955. The actual date for his appearance is to be fixed by the learned Magistrate upon notice to both sides, and in fixing the date, regard must be had to the convenience of not only the witness but also of the parties concerned.
It seems to us that the order fixing the next date of hearing should be made at least a fortnight before the actual date to be fixed.
10. As a result of the failure of the witness concerned to attend Court on several dates, opposite party No. 2 was not only put to great inconvenience hut was forced to incur certain costs which were thrown away. The present application for transfer has also failed. We would, therefore, order that the petitioner do pay to opposite party No. 2 three Gold Mohurs as his costs of this application.
11. The Rule is disposed of accordingly.
Renupada Mukherjee, J.
12. I agree.