1. This is a petition for transfer of a criminal case now pending before Sri B. M. Chaklanabis, Magistrate, 1st Class, Ranaghat.
2. Divers grounds were urged in support of the application. The ground that the learned Magistrate did not properly record the evidence has not been substantiated. In our view, the learned Magistrate was right in omitting such matters as were either inadmissible or irrelevant. We accept the learned Magistrate's explanation as to this.
3. The next ground appears to us to be a ground of substance. It is said that the learned Magistrate summarily convicted the petitioners of contempt of court on the ground that they insisted upon taking their seats during the hearing of the case. It is common case that there is no dock in the court room. According to the petitioners, they had had permission, from the previous Magistrate to remain seated during the hearing of the case.
It also appears from the learned Magistrate's own explanation that on the day previous he himself permitted some of the petitioners to remain seated owing to their illness. I know of no law which requires an accused person to remain standing throughout the day while the case lasts. Nevertheless, he must not so conduct himself as to impair the dignity of the Court. However, as an appeal from the order of the learned 'Magistrate convicting the petitioners of contempt of court is now pending before the learned Sessions Judge of Nadia, we will say nothing further.
There is no doubt, however, that the learned Magistrate lost his temper at the petitioners' conduct in taking their seats and that he was in consequence unduly harsh towards them. Moreover, the learned Magistrate was entirely wrong in declining to enlarge the petitioners on bail, as by an order of the learned Sessions Judge the realisation of the fines imposed in the case had been stayed.
The sentence of imprisonment in each case was' in default of the payment of the fine. Therefore, once the realisation of the fines was stayed, the learned Magistrate had, in purview, ample jurisdiction to order the release of the petitioners. In view of the two unpleasant happenings, the, petitioners may, in our view, reasonably apprehend that they will not get a fair or an impartial trial. In a case such as this, the question is not whether the Court is prejudiced against the litigant, but whether the litigant may reasonably apprehend that he will not get a fair or an impartial trial. As has often been said justice must not only be done but must appear to be done.
4. In the circumstances of the ease, we think it desirable that this case should be transferred from the Court of Sri B. M. Chaklanabis to the Court of a learned Munsif Magistrate who may be posted at Ranaghat at the moment.
5. In the result, the Rule is made absolute.
Renupada Mukherjee, J.
6. I agree.