1. This is a petition under Section 526, Cr. P. C., by one Pt. Balmukand, for transfer of the case under Section 501, I.P.C.,' pending against him and his brother Sada Nand on the complaint of one Pt. Har Dev Sharma in the Court of the Magistrate first class Solan. With this petition his aforesaid brother and co-accused has to-day associated himself.
2. The petition is on the ground that a fair and impartial trial cannot be had in the said Court. The allegations, to be mentioned presently, contained in the application for transfer are supported by the petitioner's affidavit.
3. The petition has been opposed by the Government Advocate & also by the complainant, but no counter-affidavit has been filed. The Magistrate concerned has submitted his explanation with regard to the allegations made by the petitioner against him. I have heard learned counsel, and am of the opinion that this is a fit case for being transferred.
4. 7-6-1952 was the first date on which the present petitioner presented himself as an accused in the case before the learned Magistrate. The allegation of the petitioner is that on that date the Magistrate asked him to come to a compromise with the complainant otherwise he would suffer. The learned Magistrate in his explanation admits that he did suggest that the parties should come to a compromise, and that for that purpose the case was adjourned to a date four days off. But the Magistrate denies the allegation that he intimidated or threatened the petitioner. I see no reason not to accept this denial of the learned Magistrate. At the same time, the fact remains that the learned Magistrate did suggest a compromise to the parties.
5. The case was adjourned from 7-6-1952 to 9-6-1952 (& not 10-6-1952, as wrongly mentioned by the petitioner) to enable the parties to come to a compromise. The next allegation of the present petitioner relates to something which happened on 8-6-1952. These allegations are not levelled against the Magistrate but against the complainant Har Dev Sharma. It is alleged that on 8-6-1952 the complainant took the petitioner to his house and t9ld him that the Magistrate was a friend of his. In support of this statement he is said to have told the petitioner that he himself and the Magistrate lived at one time at Udaipur and were friends. He further told the petitioner that the Magistrate was a regular contributor to his quarterly journal named Shri Swadhayaya. And in support of this latter fact he showed to the complainant the Kartik Samvat 2008 issue of the journal containing an article by the learned Magistrate.
The complainant is also alleged to have asked the petitioner to come to a compromise with him otherwise he (the petitioner) would suffer heavily. As I have stated above, there is no counter-affidavit filed by the complainant Har Dev Sharma with regard to these allegations as to the happenings on 8-6-1952. I take it therefore that the allegations in the petitioner's application are correct. It is relevant to mention in this connection that the learned Magistrate has in his explanation admitted that the complainant knew the learned Magistrate's father who was a Minister in Udaipur State before he died in 1942, although the learned Magistrate himself met the complainant for the first time in Solan in 1951. The learned Magistrate also admits having contributed an article to the complainant's journal.
6. The third allegation of the petitioner relates to the happenings in the Court of the learned Magistrate on 9-6-1952. It is alleged that on that date the Magistrate pressed that the petitioner should agree to the arbitration of the Raja Sahib of Solan; that the Magistrate also phoned to the Raja to agree to act as an arbitrator; and that when the petitioner expressed his inability to agree to arbitration the Magistrate compelled him to interview the Raja Sahib in connection with his proposal of arbitration. It is further alleged that the parties thereafter went to the Raja Sahib but that as the petitioner did not agree to the arbitration, the proposal of arbitration fell through.
With regard to these allegations, the learned Magistrate has stated in his explanation that the parties themselves told him that they had approached the Raja Sahib to act as their arbitrator. He has denied that he pressed any party to appoint the Raja Sahib as arbitrator, or that he phoned to the Raja Sahib in that connection. I have no reason not to accept the explanation of the learned Magistrate, so that, so far as the allegations of the petitioner relating to the happenings on 9-6-1952 are concerned, I must reject them as unfounded.
7. The position therefore boils down to this that on 7-6-1952 the learned Magistrate did suo motu make a suggestion to the parties that they should come to a compromise; that the case was adjourned for the purpose to 9-6-1952; that in between these two dates the complainant Pt. Har Dev Sharma took the petitioner to his house and asked him to come to a compromise otherwise the petitioner would suffer heavily because the Magistrate was friend of his; that in support of his friendship he stated that the complainant and the Magistrate originally belonged to the same place and there were friendly relations between the two families; and that he also showed an article which the Magistrate had contributed to the complainant's journal.
8. It is no part of the business of the presiding officer of any Court to put forward any suggestion to the parties to come to a compromise. That is the look out of the parties themselves, and the only business of the Court is to decide the case on its merits. Were that, however, the only ground put forward by the petitioner, I might not have been inclined to grant the application. But when the said suggestion for compromise emanating from the Magistrate in this case is taken into consideration along with the other facts, I think there is good ground for holding that the petitioner would have a reasonable apprehension in his mind that he would not have an impartial trial before the Magistrate concerned.
The other facts, as already stated, are that the families of the complainant and the learned Magistrate originally belonged to the same place, that the Magistrate had contributed an article to the complainant's journal, and that the complainant had referred to both these facts to the petitioner in an attempt to make him come to a compromise in the case. So far as the learned Magistrate is concerned, I have no doubt but that he would have done nothing but justice between the parties. It has however to be remembered that it is not so much the bias of the Magistrate as the susceptibilities of the party concerned that have to be taken into consideration. And so far as that is concerned, in view of the facts and circumstances mentioned above, I am of the opinion, as already stated, that the apprehension in the mind of the present petitioner was reasonable.
9. The petition is allowed and it is directedthat the case be transferred from the Court ofSri V.R. Antani, Magistrate, first class, Solanto that of Sri Devki Nandan, Magistrate firstclass, Kasumpti. The parties are herebydirected to appear before the Magistrate towhom the case is being transferred on 9-9-1952.