RAGHU SINGH Vs. BHAIRO PRASAD TRIGUNAIT

JUDGEMENT

(1.) THIS is an application for transfer of a case pending against the petitioners in the Court of Mr. S. N. Chakravarty, a Magistrate exercising first class powers at Giridih. The stage, which the case has reached ia that the evidence of both parties has closed, arguments have been heard and the only thing that remains to be done is to pass orders in it. The principal question of law which has been raised is if this Court can transfer the case at this stage under the provisions of Section 526 (1), Criminal P. C.

(2.) IT is necessary to state the facts out of which the question has arisen, There is a tank called Kaiyoktar Ahar which, it is stated, has been the subject of a long standing dispute between the petitioners on one side and the opposite party, Nos. l and 2, on the other. Opposite party Nos. l and 2 alleged that they had taken settlement of the tank from the landlord, Mahant of Khuti. Their further allegation was that on 28th May 1947, the petitioners along with others committed theft of fish from the aforesaid tank. A first information was lodged by opposite party No. 1 about this occurrence, and the local police submitted a charge -sheet for offence, under Sections 143 and 379, Penal Code, against the petitioners. The learned Sub -Divisional Magistrate took cognizance of the case against the petitioners and made it over to Mr. S. N. Sinha, a Magistrate exercising first class powers, for trial. Mr. S. N. Sinha examined witnesses, framed Charges against the petitioners on 5th August 1947, and adjourned the case' till 13th September 1947. The case was again adjourned till 6fch October 1947, on which day the prosecution witnesses were cross -examined and discharged, and the petitioners were examined. The next date fixed was 6th November 1947, on which date a further adjournment till 27th November 1947, was given for examination of defence witnesses. In the meantime Mr. S. N. Sinha was transferred and the case was made over to Mr. S. N. Chakravarty, the present Magistrate before whom the case is pending, on 17th January 1948. The petitioners at first wanted a trial de novo, but subsequently waived their right to such a trial. On 9th April 1948, Mr. Chakravarty examined some defence witnesses. It is stated that he also heard arguments though there is no note to that effect in the order -sheet. He fixed 16th April 1948, for orders. On that date the Magistrate was absent, having gone to some other place in connection with has other duties. On 16fch April 1948, the petitioners came to know that the learned trying Magistrate had enquired into a petition which the opposite party no. l had sent to the Prime Minister of Bihar, in which several allegations were made against the petitioners including the allegation that they had committed theft of fish from the tank in question in May 1947. I have had the advantage of seeing that petition as also the enquiry report submitted by the learned trying Magistrate in connection with that petition. The petition as also the enquiry report are parts of the record of a proceeding under Section 107, Criminal P. C, instituted against the petitioners, which is pending before the learned Munsif -Magistrate of Giridih. The enquiry report showa that the learned Magistrate had enquired into the matter locally on 23rd March 1948. I quote below some extracts from the report in order to show what opinion the trying Magistrate had formed as a result of the enquiry:

(3.) WHEN the petitioners came to know of these facts on 16th April 1948, they obtained copies of the relevant documents, and on 19th April 1948, moved the Sub -divisional Magistrate for a transfer of the case from the file of Mr. S. N, Chakravarty on the main ground, amongst others, that he had already expressed his opinion about the case, which opinion was based on evidence given during the local inquiry behind the back of the petitioners. The learned Sub -divisional Magistrate did not transfer the case. The petitioners then made an application under Sub -section (8) of Section 526, Criminal P. C. in the Court of the trying Magistrate. The learned trying Magistrate considered this application on 20th April 1948, and held that inasmuch as the application bad been made after the defence had closed its cage, it was not maintainable. He rejected the petition for adjournment, but gave some time to the petitioners to move this Court. This Court was moved, and a stay order was obtained. The case' is now stayed pending the order of this Court on the application for transfer.