1. This is an application under Section 526, Cr. P. Code, by one of the five accused who have been prosecuted on the complaint of the respondent Jai Datt for offences punishable under Sections 447 and 427, I. P. C., in the Court of Sri DevkiNandan, Magistrate, first class at Kasumpti fortransfer of the case to any other competentMagistrate. The application is made on groundstending to show that a fair and impartial trialcannot be had before the said Magistrate and onthe further ground that the trying Magistrate isa necessary, defence witness in the case. Theapplication has been opposed by the complainantand by he Government Advocate on behalf ofthe State.
2. There was a preliminary objection taken by the learned counsel for the complainant, and it was that the application for transfer was not supported by a legal affidavit as required under the mandatory provisions of Sub-section (4) of Section 526. Section 539 of the Code lays down the Courts and persons before whom affidavits may be sworn. The affidavit in support of the present application purports to have been sworn before an Oaths Commissioner at Delhi on 27-7-1953 and before a first class Magistrate, Delhi on 28-7-1953. It is conceded that the Oaths Commissioner in question was not one of the Commissioners mentioned in Section 539.
It was contended however by the learned counsel for the petitioner that the first class Magistrate at Delhi before whom the affidavit was sworn on 28-7-1953 was a Judge, as comtemplated by Section 539. Now, a Judge has been defined under Section 19, I. P. C., as every person who is officially designated as a Judge, and also every person who is empowered to give a definitive judgment in any legal proceeding. A Magistrate is not a person officially designated as a Judge, and he would be a Judge within the said section read with Section 4(2), Criminal P. C., only when he is exercising jurisdiction in a suit or other proceeding.--'Ram Chandra v. Emperor', AIR 1926 Pat 214 (A). That being so, there is no doubt that the affidavit filed in support of the present application was not a legal affidavit.
3. The next question is as to what the effect of the aforesaid illegal affidavit is on the present application. The learned counsel for the complainant-respondent cited three cases in this connection:--'Mahim Chandra v. Amjad Ali', AIR 1931 Cal 710 (1) (B),--'Ramditta Mal v. Emperor', AIR 1939 Pesh 38 (C), and--'Nanda Lal v. Emperor', AIR 1944 Cal 283 (D).
The last case has absolutely no relevancy here since it had nothing to do with the interpretation of the provisions of Section 539 of the Code. Of the other two cases, only the first need be considered since the Peshawar case purports to follow it. It was held in the Calcutta case that where an affidavit in support of an application for transfer under Section 526 is defective as not having been sworn to before one of the persons mentioned in Section 539 of the Code, the application for transfer cannot be entertained.
It was argued by the learned counsel for the petitioner however that the mere ground that the affidavit is defective should not result in the application for transfer being thrown out, but that the petitioner should be given an opportunity of rectifying the mistake. And, in this connection, he laid emphasis on the fact that Sub-section (4) of Section 526 of the Code does not say that the application for transfer shall be accompanied by, but only that it shall be supported by, an affidavit or affirmation. There seems to be considerable force in the argument of the learned counsel for the petitioner, but it is not necessary to express any opinion on the point.
The object of an affidavit in support of an application for transfer appears obviously to be that there is prima facie evidence in support of the allegations contained in the application for transfer and, incidentally, that those allegations are not made recklessly. There may, however, be a case in which a material allegation for transfer contained in the application under Section 526 of the Code has been admitted by the Magistrate concerned in his explanation and not controverted by any of the respondents. If that be the case, it is manifest that even the absence of an affidavit, to say nothing of the affidavit being defective, would be immaterial. That, as I shall presently show, is the case here. I therefore hold that the fact that the affidavit in support of the present application is defective is immaterial.
4. So far as the allegations challenging the impartiality of the trying Magistrate are concerned, they have been categorically denied by the Magistrate in his explanation. The Magistrate has denied that the complainant-respondent is friendly with him or that he is his astrologer. The other allegations are the following. It is said that although the petitioner is a permanent Government servant, so that there could be no question of his avoiding service, the Magistrate issued a bailable warrant for his appearance. The Magistrate in his explanation admits the fact but says that it was necessary for him to do so as it was a warrant case. This explanation does no doubt reveal an incorrect comprehension of the law since even in a warrant case the Magistrate could have issued a summons to the accused under Section 204, Cr. P. Code. The mere fact however that the Magistrate issued a bailable warrant in this case instead of a summons should be no ground for supposing that the Magistrate was prejudiced against the petitioner.
The other grounds alleged are that there has been inordinate delay in the disposal of the case and that the evidence has been taken piecemeal. These are however allegations which, I am afraid, will apply to many Magistrates in this State. It is further alleged that the Magistrate persisted in insisting that the parties should come to a compromise. The Magistrate admits that he did make the suggestion once, but he says that when the parties did not agree to the suggestion he did not insist upon a compromise again. None of these grounds is, in my opinion, a ground which should have raised any reasonable apprehension in the mind especially of a person of the petitioner's understanding that he would not have a fair or impartial trial in the Court of the Magistrate concerned. That ground for transfer of the case therefore fails.
5. The other ground, as adverted to above, is that the Magistrate would be a necessary defence witness in the case. The first question therefore is whether this allegation is correct. There are two allegations made in this connection by the petitioner. One is that the Magistrate acting in his capacity as a revenue officer has disposed of two petitions of the applicant, one dated 10-7-1952 and the other dated 11-8-1952, for demarcation of the boundaries of the land in dispute. Before proceeding further, it may be stated here in passing that the offences in question of mischief and criminal trespass under Sections 427 and 447, I. P. C., appear to have been alleged with regard to the land which was the subject-matter of the demarcation proceedings.
It was stated by the learned counsel for the petitioner that he would produce the Magistrate in order to prove the orders passed by him in those proceedings. Any orders passed by the Magistrate in those proceedings could however be proved by the production of certified copies of the same. That being so, so far at least as the demarcation proceedings are concerned, the Magistrate is not a necessary witness.
6. Another proceeding in connection with which it is alleged that the Magistrate will be a necessary defence witness was one instituted by the complainant-respondent against the petitioner under Section 145, Cr. P. Code, in respect of the same land. It is alleged that in the course of those proceedings the Magistrate made a local inspection and that in spite of his best efforts demarcation of the boundaries could not be effected. This allegation of the petitioner has been admitted by the Magistrate in his explanation without any reservation. Now, there can be no gainsaying the fact that a witness like the Magistrate who despite his best efforts was unable to demarcate the boundaries of the land in respect of which the offences in question are alleged to have been committed would be a necessary defence witness. As to what the effect of the evidence of such a witness would be on the present complaint is of course quite another matter.
The learned counsel for the respondent drew my attention to the inspection note recorded by the Magistrate in the proceedings under Section 145 of the Code to show that the Magistrate could not form any opinion because he required the help of certain other officials like the Girdawar Kanungo and the Patwari for purposes of demarcation. That is no doubt true so far as it goes, but the inspection note also shows that an effort to demarcate the land was made by the Magistrate himself. That being so, the contention put forward on behalf of, the petitioner that the Magistrate was unable to demarcate the land as a result of whatever efforts were made by him cannot be said to be unfounded. As already stated, the Magistrate has admitted in his explanation the allegation of the petitioner that inspite of his best efforts he was unable to demarcate the boundaries. I do hold therefore that the Magistrate, whom the petitioner wishes to produce as a defence witness, would be a necessary and material witness on his behalf.
7. There was one objection taken in this connection by the learned counsel for the respondent which must be disposed of, and that was that this ground of producing the trying Magistrate as a defence witness was taken with inordinate delay and was therefore merely an after-thought. The suggestion was that the ground has been introduced in the present application merely for the purpose of strengthening the application.
It appears that the present complaint was filed on 20-8-1952, the prosecution evidence was over on 6-11-1952, the accused were examined under Section 342 on 18-11-1952, charges were framed on 21-1-1953 and one of the prosecution witnesses was further cross-examined on 19-2-1953. Meanwhile, i.e. on 17-2-1953, a revision was filed against the framing of the charge before the Sessions Judge which was dismissed on 31-3-1953. Some time thereafter, Sri Devki Nandan was transferred to Nahan, but by a notification dated 19-6-1953 the Lt.-Governor entrusted the disposal of a number of criminal cases, including the present one, to Sri Devki Nandan. Thus, this case came again before Sri Devki Nandan from the file of his successor-in-office Sri Beas Dev. After the said notification there was only one date, 18-7-1953, on which the case was taken up by Sri Devki Nandan, and that only for the appearance of the parties. On 30-7-1953 the present application for transfer was filed in this Court.
It may also be mentioned that the inspection in the proceedings under Section 145 of the Code was made by the Magistrate on 17-11-1952. It was therefore contended by the learned counsel for the respondent that soon after 17-11-1952 it should have been apparent to the petitioner that the Magistrate would be a necessary Witness, but the petitioner waited for about nine months before he presented the present application for transfer on the ground, inter alia, that the Magistrate would be a necessary defence witness.
8. Now, it was rightly argued by the learned counsel for the petitioner that until the revision against the framing of the charge was disposed of the accused could not have thought of the contingency of producing the Magistrate as a defence witness, for he might well have expected that the revision would succeed and the charges be quashed. As already noted, the revision was dismissed on 31-3-1953. After that, Sri Devki Nandan was transferred, and it was only on 19-6-1953 that seizin of the case was again given to him by virtue of the aforesaid notification of the Lt.-Governor. And after that there was but one hearing of the case before Sri Devki Nandan on 18-7-1953, and that too merely for the appearance of the parties. In these circumstances, it cannot validly be urged that the present petition for transfer on the ground of the Magistrate being a necessary witness was filed with delay or merely as an after-thought. The said objection against the present petition put forward by the learned counsel for the respondent on the ground of delay has therefore no force.
9. In the result, therefore, I hold that the present application should be granted on the only ground that the trying Magistrate, Sri Devki Nandan, is a necessary defence witness. It may be stated here in passing that the petitioner has given an undertaking in the present petition that he will not claim a de novo trial. And this undertaking has been repeated by Sri Chandu Lal Advocate on behalf of the other accused also.
10. The application is allowed and the case is transferred from the Court of Sri Devki Nandan Magistrate first class to that of the District Magistrate of Mahasu with the direction that he should himself try the case and not transfer it to any other Court. The trial of the case will be taken up by him from the stage at which it was left by Sri Devki Nandan. Considering that the case has already been prolonged inordinately, the learned District Magistrate will see to it that it is disposed of without further delay. In the special circumstances of the case, I make no order as to the costs of this petition. The parties or their counsel should appear before the District Magistrate on 5-9-1953.