NANDLAL AGARWALA Vs. STATE

JUDGEMENT

(1.) This is an application for transfer of a case which is pending against the present petitioner in the court of the Magistrate, exercising first class powers at Dhanbad. The case against the petitioner is for an offence under Section 7, Essential Supplies ( Temporary Powers ) Act, 1946 read with Clause 26 (1) (c) of the Cotton Textiles ( Control ) Order, 1948. In the charge against the petitioner, Clause 23 (1) (c) of the said Order is mentioned; presumably, Clause 23 (1) (c) is a mistake for Clause 26 (1) (c) of the said Order. Put briefly, the case against the petitioner was that he was in possession of some unmarked cloth.

(2.) Learned Counsel for the petitioner has urged three grounds in support of the application for transfer. The first ground urged is that the learned Magistrate refused to grant an adjournment when the lawyer of the peti- tioner, who had been taken from Patna, suddenly and unexpectedly fell ill of filarial fever. The second ground urged is that the learned Magistrate allowed the Public Prosecutor to cross-examine a witness for the prosecution, viz., P. W. 4 who had been merely tendered by the prosecution. It appears that this witness was first cross-examined on behalf of the petitioner. Thereafter, the learned Public Prosecutor made an application to the effect that the witness was hostile, and he should be allowed to cross-examine. The last ground urged in support of the application is that for a long time there has been trouble between the executive officers of Dhanbad, particularly those in charge of the Supply Department of the district, and the petitioner: the petitioner had to make a representation to the cloth Controller on several occasions, and the executive authorities of Dhanbad tried to nullify the order of the Cloth Controller. It is stated that the petitioner apprehends that the executive officers of Dhanbad are prejudiced against the petitioner, and therefore, the case against the petitioner should be tried by a Sub-Judge Magistrate who is posted at Dhanbad and who is not under the influence of the executive officers of that place.

(3.) I have heard learned Counsel for the petitioner. I have also heard the learned Government Advocate, and perused the explanation which the learned Magistrate has submitted. I should like to make it clear at the very outset that the real test in cases of this nature is not whether the learned Magistrate is really biased against the petitioner, but the test is if the petitioner has reasonable grounds for apprehending that he will not get a fair or impartial hearing. After having heard learned counsel for the parties, I am satisfied that the first ground urged in support of the application for transfer is a substantial ground and may give rise to an apprehension in the mind of the petitioner that he will not have a fair opportunity of defending himself at the trial. It is not doubted that the petitioner's Counsel, who had gone from Patna, fell ill of filarial fever in the midst of cross-examination of some of the witnesses. It is true; as the learned Magistrate has pointed out, that there were other local lawyers who were assisting the lawyer from Patna. It is, however, well known that when a lawyer is taken from outside for cross-examination of witnesses, it becomes very difficult for other assisting lawyers to take up the cross-examination all at once if the senior lawyer falls ill. It appears that the learned Magistrate was willing to give an adjournment of two or three days. The lawyer from Patna fell ill on the night of the 15th, and on the 16th, a prayer for adjournment was made. The learned Magistrate was willing to grant an adjournment till the 19th, presumably because he thought that Clause (a) of Section 13B, Essential Supplies (Temporary Powers) Act, 1946, applied, and he had no authority to adjourn the case for more than four days. In this view, I think, the learned Magistrate was wrong. It was Clause (b) of Section 13B, Essential Supplies (Temporary Powers) Act, 1946, which applied in the case, and it was open to the learned Magistrate to grant a longer adjournment which, I think, was necessary in order to enable the petitioner to engage another lawyer to continue the cross-examination of the prosecution witnesses.