1. The question before us on this Rule is whether the case now pending against the petitioners before Mr. K.B. Das Gnpta should not be transferred to some other Magistrate, on the ground that that gentleman is a necessary witness for the defence. In applying for a transfer of this kind I think that an accused must satisfy this Court that the Magistrate whom he desires to call as a witness will be a necessary and essential witness for the defence. In this case the accused say that the Magistrate is required to give his evidence as to the credit of another witness Karuna Bhusan Banerjee, who is no doubt one of the principal witnesses for the prosecution, and that his evidence will be admissible under Section 155(1) of the Evidence Act. In support of this application they have put forward certain facts which they claim to have elicited from the witness Girija in cross-examination. It is not suggested that the witness Girija has said anything in his examination-in-chief which is relevant to the present enquiry into the guilt of the petitioners. It is, therefore, unnecessary for the petitioners to impeach Girija's credit in the way that they suggest. Their application is solely having reference to the evidence of Karuna. We have been taken through the evidence of Girija more than once by Sir B.C. Mitter, but we are quite unable to find in that evidence any definite statement that Karnna was either a Bench clerk of Mr. Das Gupta, which admittedly he never was, or that he was so brought into contact with him in the offioe that Mr. Das Gupta would be in a position to express any opinion as to his credibility as a witness. Mr. Das Gupta himself has submitted an explanation to this Court in which, at the outset, he frankly admits that he has no desire to try the case, but that on the contrary it would be a great relief to him if it were transferred from his file. But, taking the facts alleged in the petition, he gives them one and all a categorical denial. It appears from his explanation that, during the years that he has been at Lall Bazar, at Jorabagan and at Bankshall Street, Karuna Bhusan Banerjee has never worked under him in any capacity either in his Court or in any office of which he has been in charge. He never worked as his Bench clerk or interpreter or process-clerk, nor did he work in the Jorabagan office when Mr. Das Gupta was in charge of that office, nor in the copying department or accounts department or in the record room of which the Magistrate has been in charge for over two years. The Magistrate further states that he had no occasion to know anything about his conduct or credibility as he never worked under him and that he held no enquiry regarding his conduct in any matter in any of the Courts. He adds that there is no such post as 'Office Master' used by the witness Girija, possibly taking it from the cross-examining Counsel. Turning to Girija's evidence, his statements amount to this that he expresses an opinion as to Mr. Das Gupta's possible knowledge of certain subordinates in the Police Court of whem Karuna is one. He does not, however, make any statement from which it can be necessarily inferred that Karuna was at any time under Mr. Das Gupta in a way in which that Magistrate would be brought to judge of his conduct or credibility. It is said that the Magistrate has only referred to the enquiry into Karuna's own defalcation, with which enquiry the Magistrate admittedly had nothing to do. It is said that there was another enquiry in 1914 into Girija's conduct. It is suggested that in that enquiry Mr. Das Gupta must have also enquired into Karuna's conduct. That enquiry was with reference to certain events which took place in the copying department. This witness cannot say whether Karnna was ever in the copying department but thinks he was either in the copying department or statistics department. He is not able to say which. There is certainly nothing to show that Karnna n as in any way connected with the enquiry into Girija's conduct in 1914 or that he was in any way implicated in the charges which were then made against that clerk and other clerks in that office. It is not suggested on the part of the petitioners that the simple word of the aroused is to be accepted in matters of this kind. They must show that the Magistrate is an essential and necessary witness and they must show that to the satisfaction of this Court. In this case I am clearly of opinion that they have wholly failed to show anything of the kind. I would, therefore, discharge this Rule.
2. Smither, J.--When an accused person applies to this Court for a transfer of his case on the ground that he wishes to examine as a defence witness the Magistrate who is trying the case, I do not think that we should make the transfer as a matter of course. We should look into the question whether the Magistrate can give material evidence, and we must look into that question in this case. It is said that this Magistrate can give evidence as to the credibility of Karuna, the principal prosecution witness. The suggestion is that the Magistrate has formed an opinion ahout the witness, because the Magistrate hasbeen working as a Presidency Magistrate in charge of certain offices and the witness has been working as a clerk in the Presidency Magistracy offices. But this witness has not worked under this Magistrate at all, so far as I have been able to see, either in an office under his control or as a Bench clerk. On the other hand he has worked under other Magistrates as a Bench clerk, and in offices controlled by those other Magistrates; and the proper persons to give evidence on the lines on which the defence says it wishes to examine this Magistrate are those other Magistrates--one of whom is the Chief Presidency Magistrate, who is already a witness in this case.