Banerjee and Wilkins, JJ.
1. This is a rule granted on the application of the Deputy Legal Remembraneer, calling upon the accused to show cause why the case against them now pending in the Sessions Court of Burdwan should not be transferred to the Sessions Court of Alipur or to the Sessions Court of any other district, on the grounds: (1) That a fair and impartial trial cannot be had in the Sessions Court of Burdwan before a Burdwan jury, and (2) that the transfer is expedient for the ends of justice.
2. In support of these two grounds two affidavits have been filed, one by Mr. Fisher. Magistrate of the district, and the other by Sheikh Bistu, brother of one of the two persons, said to have been murdered by the accused.
3. The material statements contained in the District Magistrate's affidavit_are to the effect that the accused are sons and ' near relations of men of influence and position,' that the Magistrate who has been at Burdwan for about a year and-a-half and has come to know many people of the district is aware, from his ' personal knowledge,' ' that various kinds of rumours, both true and false, are being circulated among all classes of the community all over the district ' about the facts of this case; that the Magistrate is credibly informed from various sources, including the Sessions Judge's letter to him (which is filed with the affidavit and marked C),' that this case has caused a profound sensation throughout the district among all classes of people;' that the Magistrate firmly believes ' that it will be next to impossible to obtain a fair and impartial trial ' if the case be heard before a jury chosen from the district of Burdwan; and that it is necessary in the interests of justice that the case should be transferred from Burdwan.
4. The affidavit further states that this case ' has created an extremely ' bitter feeling among the Mahomedan population of the town, that they 'are an excitable people' and 'have not much patience,' that it is therefore necessary that the case should be tried under such circumstances as will give the Mahomedans every confidence, and that ' this will not be the case if it be tried at Burdwan.'
5. The affidavit of Sheikh Bistu contains statements nearly to the same effect.
6. The accused in shewing cause have filed six affidavits, three of which are by the lathers of the three accused, one by a pleader of the Burdwan Court engaged for the defence, and two by two Mahomedans residing at Burdwan, who, however, do not say anything as to what their position in life is, nor any thing as to what their means of knowledge are, beyond stating that they have been living in Burdwan for many years.
7. These affidavits more or less deny most of the allegations contained in the affidavits tiled on behalf of the petitioner; and they further state that the case should not be transferred from Burdwan, as a local inspection of the alleged place of occurrence by the jury may be necessary, and that transfer of the case would cause inconvenience to the accused and their witnesses, and would involve expense which it would be difficult for two of the accused, and impossible for the third, to bear.
8. It is unnecessary for our present purpose, and it is undesirable at the present stage of the case, to enter into a detailed examination of all the various statements contained in these affidavits and counter, affidavits. We shall confine our attention to such of them as relate to matters coming within the scope of Section 526 of the Criminal Procedure Code and are relevant to the present purpose, and exclude from consideration those that are irrelevant and likely to misguide the judgment.
9. We may add that under this latter description come those statements which speak of the Mahomedans being 'an excitable people' who ' have not much patience,' and which hint at the necessity of allaying their irritation to prevent possible serious consequences. Those are considerations which do not come within the scope of Section 526 of the Code of Criminal Procedure, and which should not, therefore, influence our judgment. The only clause of the section which may possibly be referred to in this connection is clause (e) ; but that clause refers to expediency for the ends of justice and not to expediency from any political point of view. In dealing with an application like the present, it is, no doubt, the duty of this Court to have all due regard for the importance of securing the confidence of the public generally, and of every section of the community interested in the result, in particular, in the fairness and impartiality of the trial that is going to be held; but it is equally its duty to see that no undue regard is shown to the abnormal susceptibilities of any section of the public, from an apprehension of ulterior consequences. If that wore done, it would result in the obvious injustice of showing greater consideration to the less peaceful than to the more peaceful. We regret that the Sessions Judge, and following him the District Magistrate, should have referred to matters which ought not to be taken into account in this case.
10. We should further add that it was improper for the District Magistrate, as representing the prosecution, to have consulted in this matter the Sessions Judge in whose Court this case was pending, and still more so for the Sessions Judge to have addressed the District Magistrate the communication marked as Exhibit C. While making these remarks, however, we fully appreciate the object they had in view, which was to secure a fair and impartial trial in this case, and peace and harmony in their district.
11. Coming now to the consideration of those statements in the affidavits and counter affidavits which relate to matters lying within the scope of Section 526 of the Code of Criminal Procedure, we find that while the statements relied upon by the petitioner seek to bring the case under clauses (a) and (e) of the section, those relied upon by the opposite side seek, not only to contradict those allegations, but also to show that clauses (c) and (d) operate against the applications for transfer. That is to say, while the affidavits of the District Magistrate and Sheikh Bistu state that a transfer of the case is necessary for a fair and impartial trial and is otherwise expedient for the ends of justice, the affidavits relied upon on behalf of the accused affirm that a transfer is not necessary for a fair and impartial trial, nor otherwise expedient for the ends of justice; that the allegations to the contrary are not well founded; and that the trial ought to be held in Burdwan, because a view of the place in which the offence is said to have been committed is necessary for the satisfactory trial of the same, and because the accused and their witnesses would otherwise be greatly inconvenienced. Thus there are conflicting statements giving rise to conflicting considerations, and the questions for determination are: first, which of these conflicting statements should be accepted; and, second, which of the conflicting considerations arising upon the statements to be accepted should prevail.
12. With reference to the first question Mr. Roy for the accused contends that the statements in the District Magistrate's affidavit are indefinite, and therefore insufficient to form the basis of a decision, while those in the affidavits filed on behalf of the accused are definite and point to specific sources of information; and he relied upon the case of The Empress v. Nobo Gopal Bose (1880) I.L.R. 6 Cal. 491 as showing that a somewhat similar affidavit by the District Magistrate was considered insufficient by this Court. But the facts of that case were different from those of the present in several respects. In the first place, there the District Magistrate who made the affidavit had been in the district for about three months only, whereas in this case the Magistrate has been in the district for about a year and a half; and in the second place, in the case cited, the Magistrate did not state his sources of information, or the ground of his belief, whereas in the case before us he gives the sources of his information and states that he is aware of certain facts from personal knowledge. But though that is so, and though we are quite willing to accept the District Magistrate's statements in preference to counter statements in the affidavits on the other side, we must say that some of those statements which give reasons for the Magistrate's belief are vague and general; and having regard to the facts stated in the counter affidavits that there are on the jury list of Burdwan as many as 471 names, of which 22 are the names of Mahomedans and 28 of Europeans, we find it difficult to hold that a fair and impartial trial cannot be had by a jury at Burdwan. The facts stated, therefore, are not quite sufficient to bring the case under clause (a) of Section 526 of the Code of Criminal Procedure.
13. The statements in the District Magistrate's affidavits are, however, in our opinion sufficient to bring the case under clause (e) of the section. The statements to which we refer are those contained in paragraphs 8 and 9 of the affidavit, which are to the effect that the Sessions Judge thinks that ' it will be very difficult to get a jury with a quite unbiassed and open mind,' and that the Magistrate firmly believes ' that it will be next to impossible to obtain a fair and impartial trial if the case be heard before a jury chosen from this district,' i.e., Burdwan.
14. These statements, as statements of belief, stand practically uncontradicted, though the grounds of such belief are challenged in the counter affidavits. But when two such officers as the District Magistrate and the Sessions Judge, whose honesty of purpose cannot be called in question, and who are the persons responsible for the administration of criminal justice in the district, have so emphatically expressed their belief on the subject, the bare expression of such belief, quite apart from the foundations thereof, must shake the confidence of the parties interested, and of the public, in the fairness and impartiality of the Burdwan jury to try this case, and create in their minds a reasonable apprehension that a fair and impartial trial cannot be had, if the case is tried in Burdwan. And when that is the case, an order for transfer must be held to be expedient for the ends of justice, the importance of securing the confidence of parties in the fairness and impartiality of the tribunal being next only to the importance of securing a fair and impartial tribunal. The view we take is in accordance with that taken by this Court in Dupeyron v. Driver (1896) I.L.R. 23 Cal. 495.
15. It was contended by Mr. Roy for the accused that the considerations which influenced the Court in the case just referred to, apply only to cases where the confidence of either party in the fairness of the presiding Judge or Magistrate is shaken, and that where, as in this case, the fairness and impartiality of the Sessions Judge is not doubted, the mere possibility of the jury being biassed should not form a ground for transfer, when the law provides a remedy against a wrong verdict by authorizing the Sessions Judge to refer the ease to this Court; and in support of this contention the case of Queen v. Ameer Khan (1871) 7 B. L. R. 240; 15 W. R. Cr. 69 and Empress v. Nobo Gopal Bose (1880) I.L.R. 6 Cal. 491 were relied upon.
16. We are unable to accept this contention as sound. The jury, in a case triable by jury, constitute a part and an important part of the tribunal; and this Court, on a reference by the Sessions Judge under Section 307 of the Code of Criminal Procedure, is required to determine the case upon the entire evidence after giving due weight to the opinions of the Judge and the jury. It would not, therefore, be quite reasonable to say where doubt is entertained as to the fairness and impartiality of the jury, that the trial should nevertheless go on before such a jury, because an erroneous verdict may, in the end, be set right by the High Court. As for the cases cited, that of Queen v. Ameet Khan (1871) 7 B. L. R. 240; 15 W. R. Cr. 69 is not quite in point, the trial there being not by jury but with the aid of assessors. The case of Empress v. Nobo Gopal Bose (1880) I.L.R. 6 Cal. 491 is no doubt in point; but the learned Judges in that case do not hold as a matter of law that a case triable by jury is not to be transferred on the ground of the fairness and impartiality of the jury being questioned, because there are safeguards against miscarriage of justice; all that they decide is that it would require very strong grounds to justify a transfer in such a case.
17. The statements in the Magistrate's affidavit, in our opinion, therefore, bring the case under clause (e) of Section 526 of the Code of Criminal procedure.
18. The statements in the affidavits filed on behalf of the accused, on the other hand, show that a view of the place where the offence is said to have been committed may be necessary for a satisfactory trial; and that a transfer of the case will cause inconvenience to the accused and their witnesses, and these statements we see no reason to reject as unfounded.
19. There are thus conflicting considerations arising upon the statements which we accept; and this brings us to the second question stated above, namely, which of these considerations should prevail
20. Now the importance of having a fair and impartial jury ranks very much higher than the convenience of parties and witnesses, and the convenience of the Court in having a local inspection. If a local inspection is deemed necessary, the Judge and the jury at Alipur may have such an inspection, though not as conveniently as the Judge and jury at Burdwan might have had it; and the cost of such inspection will have to be paid by the Government. The same remark applies with reference to the expenses of the witnesses (see Section 544 of the Code of Criminal Procedure).
21. The matter, which pressed most upon us against the transfer of the case, was the statement in the affidavit of the father of one of the three accused who says that, if the case is transferred, he has not means enough to pay for legal assistance, whereas if the trial is held in Burdwan where he has a few friends amongst the members of the local bar, he may succeed in inducing one of them to defend his son. There is no provision in the Code of Criminal Procedure for meeting this difficulty; and the only consideration which has relieved our minds to a certain extent is this, namely, that the accused, who will be tried with two others whose means are not so limited, may have the benefit of the legal aid which they will be able to secure.
22. After weighing the conflicting considerations arising in this case, the conclusion we come to is that the balance of reason is in favour of allowing the application for transfer, which we think is expedient for the ends of justice; and we accordingly order that this case be transferred to the Sessions Court of 24-Pergunnahs.