G L BISWAS Vs. STATE

JUDGEMENT

(1.) An important question of law is involved in these five petitions and so they have been referred to a Division Bench. As the point of law in all these cases is common and arises out of the facts of the same case, this judgment will govern them all.

(2.) The petitioners moved this Court for the transfer of the case from the Court of Mr. S.N. Prasad, Subordinate Judge of Patna who is invested with the powers of a Magistrate of the first class (hereinafter to be referred as the Magistrate) to the Court of some other Magistrate of competent jurisdiction. In the alternative there is a prayer for a direction that the petitioners may be allowed an opportunity to cross-examine the prosecution witnesses according to the provisions of Section 208, Criminal P. C. It may be stated that the petitioners have withdrawn their applications for the transfer of the case and the only point pressed before us is that the learned Magistrate is wrong in law in rejecting the prayer of the petitioners to cross-examine the prosecution witnesses under Section 208 of the Code. In order to appreciate the argument the relevant facts may be shortly stated as follows.

(3.) Two separate investigations were started by the Provincial C. I. D. and the Delhi Special Police Establishment in connection with an illegal disposal of distillary molasses. Several persons, including one Ramji Lal Marwari and his lour servants or agents, are alleged to have taken part in the disposal thereof. The Provincial Police submitted a charge sheet on 4th November 1948, against some of the accused. Cognizance of the case was taken by the Subdivisional Magistrate, Samastipur. While the case was pending before him, an application was made to this Court for the transfer of the case to a competent Court of sum other district. This Court by its order dated 12th January 1949, transferred the case to the Court of the Subordinate Judge Magistrate, Patna and ultimately the case came up for trial in the Court of Mr. S.N. Prasad, While the case was pending in his Court, the Central Police submitted a charge-sheet on 25th May 1949, against several peraona including some of those against whom the Provincial Police had submitted the charge sheet. It may be stated here that the Central Police submitted the charge sheet under various sections of Penal Code as well as under a. 5, Prevention of C irruption Act, 1947 (Act II [2] of 1947) while the Provincial Police had submitted the chargesheet only under different sections of the Penal Code. On 25th May 1949, the Public Prosecutor made an application to the Court for the withdrawal of the case against Ramji Lal Marwari and four other parsons who are said to be his servants or agents, on the ground (as it appears from the order sheet) that he wanted to examine them as prosecution witnesses. The learned Magistrate gave his consent as required by Section 494, Criminal P. C. and by his order dated 25th May 1949, allowed the prayer for withdrawal and discharged Ramji Lal Marwari and his four servants.