1. This Rule has been issued at the instance of two accused persons, the case against whom is now pending in the Court of Rai G.N. Mukherjee Bahadur, Honorary Presidency Magistrate. The petitioners were originally tried on a charge under Section 500, Indian Penal Code, by the same learned Magistrate and were convicted and sentenced in respect of that charge. They moved this Court against the said conviction and sentence with the result that the same were set aside and a re-trial of the case, was ordered. At the time when the order of this Court was pronounced the petitioners undoubtedly should have raised the question as to who should be the Magistrate to try the case. Unfortunately, however, this was not done and the explanation that is offered as to why it could not be done does not seem to me to be altogether an unreasonable one. It appears, however, that when the records went down to the Court of the Presidency Magistrate the case was taken up by the Additional Chief Presidency Magistrate, Mr. A.Z. Khan, on the 26th April, 1926, Mr. Khan on that date passed an order to the effect that Rai G.N. Mukherjee Bahadur, the trying Magistrate, was at Madhupur and was not expected back from that place before the last week of May, 1926, and that the case was to be adjourned to the 1st May, 1926, on which date he directed that the parties should be ready. On the 1st May, 1926, the case came on again before Mr. Khan. On that date he recorded an order to the effect that the complainant was not ready as most of his witnesses had left Calcutta, and he thereupon adjourned the case to the 17th May, 1926. By that date, however, it appears, Rai G.N. Mukherjee Bahadur had returned from Madhupur and an application under Section 528, Cr.P.C., appears to have been filed before Mr. Khan praying in effect that the case might not be transferred to the file of Rai G.N. Mukherjee Bahadur. The learned Magistrate, however, rejected that application and upon that the petitioners moved this Court and obtained the present Rule.
2. It seems to me that the learned Additional Chief Presidency Magistrate in rejecting the Petitioners' application aforesaid laboured under some sort of misconception as to the nature of the order that was passed by this Court under which the-present trial is about to be held. He says in his order that in ordinary Course the case must be re-heard by the same Magistrate from the stage of the framing of the charge. The order of this Court, however, is plain enough and it directs the re-trial of the whole case. Under these circumstances the learned Magistrate should not have held that there was anything in the order of this Court to fetter the exercise of hi3 discretion in the matter of the transfer that he had to make with regard to the case. He observes in his order that the re-trial is generally held by the same Magistrate and if the High Court desires that that Magistrate is not to re try the case, then that fact would be distinctly mentioned in the order of the High Court. In my opinion it is just the other way about. If an order for re-trial is made by this Court and it is not stated in the order whether the re-trial is to be held by the same Magistrate or by some other Magistrate, then it should not be presumed that it was the intention of this Court to direct that (he re-trial should be held by the same Magistrate. Under these circumstances the matter is left entirely in the discretion of the Magistrate who has got to appoint the Court by which the case is to be tried.
3. With regard to the merits of the application it seems to me that the learned Additional Chief Presidency Magistrate when he adjourned the case to the 1st May, 1926, knowing full well, as he did, that Rai G.N. Mukherjee Bahadur would not be back from Madhupur before the end of May clearly intended either to take the cas3 up himself or to transfer it to some other Magistrate on that date and, therefore, from the orders which the learned Magistrate passed either on the 26th April, 1926, or on the 1st May, 1926, it cannot be gathered that the learned Additional Chief Presidency Magistrate had made up his mind from the outset to transfer the case to the file of Rai G.N. Mukherjee Bahadur. It was also because on the 17th May, 1926, that the learned Additional Chief Presidency Magistrate found that Rai G.N. Mukherjee Bahadur had come back from Madhupur and wa3 available, and because of the misconception to which I have already referred that he thought fit to reject the petitioners' application. I am clearly of opinion that having regard to the fact that the petitioners were once convicted by the learned Honorary Magistrate, Rai G.N. Mukherjee Bahadur, it is desirable to have the case tried by some other Magistrate if 'one is available for that purpose.
4. The Rule has been opposed on behalf of the complainant as well as on behalf of the Crown. The learned Vakil for the complainant has not been able to satisfy me that his client will in any way be prejudiced if the case is heard by some Magistrate other than Rai G.N. Mukherjee Bahadur. It is only on the footing of the misconception under which Mr. Khan laboured, namely, that the re-trial was to take place from the point when the charge would have to be framed that he can urge that there would be any prejudice to his client. As regards the arguments that have been advanced on behalf of the Crown the most important argument that has been advanced is with reference to the provisions of Section 526, Cr.P.C. It has been urged that the mere fact that a particular Magistrate has once convicted the accused persons is no ground for holding that on a fresh trial before the same Magistrate with regard to the same offence the accused will not have a fair and impartial enquiry or trial, or that the case should not be tried by the same Magistrate on the ground that it would not be expedient to have it tried by him. So far as this matter is concerned I venture to think that the question as to whether a trial before a particular Magistrate is expedient for the ends of justice or not is a question which has got to be considered from the point of view of the accused person as well, and unless it is impossible to get a Magistrate other than the one who has already convicted the accused person on the same charge at a previous trial, or unless there be circumstances which would necessitate the trial of the same case before the same Magistrate over again, it is desirable that the trial should not be held before the same Magistrate.
5. For these reasons I am of opinion that the Rule issued in this case must be made absolute and I order accordingly. The case will now go before the Chief Presidency Magistrate who will nominate such Magistrate other than Rai G.N. Mukherjee Bahadur as he thinks proper, for the purpose of trying this case.
George Claus Rankin, J.
6. I agree.