1. It appears that one Kamakshya Nath Roy filed a petition of complaint before the Sub Divisional Magistrate of *Nadia against one Swamp Chandra Das for having committed offences under sections 403 and 476 of the Indian Penal Code. The Sub-Divisional Magistrate issued process against Swarup Chandra Das to answer to a charge under Section 403 of the Indian Penal Code only.
2. Swarup Chandra Das was said to be an agent of a lady of the name of Hari Dasi, sister-in-law of the complainant Kamakshya. The allegation was that Swarup Das got hold of a bond executed by one Lakhimoni in favour of Hari Dasi after the latter's death and had satisfaction entered on the back of the bond falsely. It was alleged that the endorsement on the back of the bond was made by the present petitioner; but no process was asked for against him as he offered to give evidence in support of the prosecution. He made a statement which was reduced into writing, in which he admitted having made the endorsement and signed Hari Dasi's name after her death at the instance of Swarup Das. The case was transferred by the Sub-Divisional Magistrate to another Magistrate, Mr. H. Dutt, for disposal. Before Mr. Dutt the petitioner was examined as a witness for the prosecution and he resiled from the statement which he had made before and deposed that he had made the endorsement during the lifetime of Hari Dasi at her request. Kamakshaya thereupon applied to the Magistrate to put the petitioner on trial along with Swarup Das and the Magistrate issued process against him.
3. This Rule was obtained for setting aside this order or in the alternative for a transfer of the case to soma other Magistrate. As regards the legality of the action taken by the Magistrate, we think on the authority of Charu Chandra Das v. Narendra Krishna Chakaravarti 4 C.W.N. 367, Bishen Doyal Roy v. Chedikhan 4 C.W.N. 560 and Golapdy Sheikh v. Queen-Empress 27 C. 979 : 4 C.W.N. 827 : 14 Ind. Dec. (N.S.) 640, that the action taken by the Magistrate was quite legal.
4. It has, however, been urged before us, not as a matter of law but as a matter of expediency, that having regard to the fact that the petitioner was examined on oath before Mr. Dutt, that he should not be tried by him as Mr. Dutt may have to a certain extent been prejudiced against the petitioner. It is also urged that Swarup Das and the petitioner should not be tried jointly.
5. Although we are of opinion that there is no objection to the joint trial of the petitioner with Swarup Das, there seems to be some force in the first contention put forward on behalf of the petitioner and as the Magistrate has already ordered a trial de novo, no inconvenience is likely to be caused to any party if the case be transferred for trial or enquiry, as the case may be, to such other Magistrate as the District Magistrate may appoint.
6. We order accordingly.