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PulIn Behary Dey and anr. Vs. Ashutosh Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.560
AppellantPulIn Behary Dey and anr.
RespondentAshutosh Ghose
Excerpt:
criminal procedure code (act v of 1898), section 526 - transfer of case--apprehension in mind of applicant--court, duty of. - .....it is necessary to consider in respect of this matter is that the petitioner has alleged that the magistrate's brother has been active in certain, electioneering matters and that the complainant has been closely connected with the magistrate's brother in that respect and that the magistrate himself is assisting his brother in this electioneering, chiefly by way of canvassing.3. i am prepared to accept what the magistrate has said in his explanation,, and, it must be clearly understood that the making of this rule absolute does, not cast any slur whatsoever upon the, magistrate or upon, the conduct of, the case by hini. but it is clear that petitioners have some apprehension that the magistrate, perhaps unconsciously, may have some bias in favosa of the complainant, and the question.....
Judgment:

Sanderson, C.J.

1. This is a Rule calling upon the District Magistrate and the opposite party to show cause why the case should not be transferred from the Magistrate who is trying the case to some other Magistrate competent to try the same.

2. The only ground which, in my judgment, it is necessary to consider in respect of this matter is that the petitioner has alleged that the Magistrate's brother has been active in certain, electioneering matters and that the complainant has been closely connected with the Magistrate's brother in that respect and that the Magistrate himself is assisting his brother in this electioneering, chiefly by way of canvassing.

3. I am prepared to accept what the Magistrate has said in his explanation,, and, it must be clearly understood that the making of this Rule absolute does, not cast any slur whatsoever upon the, Magistrate or upon, the conduct of, the case by hini. But it is clear that petitioners have some apprehension that the Magistrate, perhaps unconsciously, may have some bias in favosa of the complainant, and the question which I have to consider is whether it is possible for me to say that apprehension is not reasonable. These questions, in my judgment, are always difficult; because the matter does, not depend upon the way in which I should, regard it myself. I have to try and place myself in the position of the accused person; and look at the matter from, his point of view, Having regard to the matters; to which I have referred and looking, at the matter from the point of view of the accused persons, I am not prepared to hold that the apprehension winch they undoubtedly have cannot be a reasonable one.

4. The result is that in my judgment this Rule must be made absolute and the case must be transferred to the file of some other Magistrate competent to try it. Such Magistrate will be appointed by the District Magistrate.

5. Cuming, J.--I agree.


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