N.C. BOSE Vs. PROBODH DUTTA GUPTA

JUDGEMENT

(1.) THIS is a petition for transfer of a G. R. Case -No. 5/52, pending in the Court of Mr. S. Sarkar Magistrate, 1st Class, Gauhati. Mr. N. C. Bose,. Manager of tile United Jiauk of India is the petitioner before us file reported to the police that Probodn Dutta Gupta, accused (opposite party) had by fraud and manipulation of accounts committed criminal breach of trust in respect of a sum of Us. 11,816/ - belonging to die bank. Alter investigation the accused was chargesheeted for offences, Under Sections 409 and 477A, Penal Code. The case has dragged on a weakly existence for about two' years.

(2.) THE petitioner's case is that he was being,, cross -examined by the Advocate for the defence On 17 -7 -1953. During the course of the cross -examination, the learned Magistrate addressing the defence counsel said: "Do not expose him Mr., Choudhury". The petitioner asserts that the remarks insinuated that he was in complicity with the accused in the commission of the crime, though there was evidence to show that the alleged offence -had been committed before his appointment as agent of the Gauhati branch of die bank. It is further alleged that when the Chief Accountant was being cross -examined, some remarks adverse to the prosecution were made and the learned Magistrate indicated that the witness was untrustworthy. The case came up for argument on 18 -8 -1953. It is at that stage that it is alleged that the learned Magistrate observed that the prosecution and specially the officers of the accounts branch of the bank were accomplices in the crime and that these remarks were repeated two or three times. The advocate for the State of Assam submitted that the Court had already formed an opinion adverse to the prosecution. The learned Magistrate then told the advocate that he could apply for transfer if he so desired and the advocate stated' that he would. The Magistrate then lost temper and warned the advocate that he would draw up proceedings against him. On these facts it is urged that the petitioner has reasonable grounds for the apprehension that justice may not be done to him in the case.

(3.) ON the other hand the aggrieved person at whose instance a person is accused of an offence and is chargesheeted, also retains some rights in relation to the proceeding initiated by him though by a report to the police. He can as of right compound certain offences even though cognizable. In such cases he need not ask any permission from the Court. There are also offences where he may compound with the permission of the Court, The right to compound an offence can only be in a party to the proceeding. It would be open to that party to terminate the proceeding for pecuniary consideration and even without it. A person who has the right to terminate the proceeding with or without the permission of the Court, would be very much a party interested. The fact that the control of the prosecution is in the hands of the State agency does not divest him of his status or position as a party in such cases. It follows that merely because the State has taken over the control of the prosecution to a substantial extent, the aggrieved person does not become a third party or a stranger to the proceeding. He remains a party.