HORMUSJI HARJIBHOY CHINOY Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application by one Hormusji Harjibhoy Chinoy for transfer from Chanda to another district of the criminal case proceeding against him under Section 409, I.P.C., in the Court of the Sub-Divisional Magistrate, Warora. The grounds alleged are that the Deputy Commissioner and District Magistrate, Chanda, has shown personal bitterness against the applicant and has taken such a prominent part in the enquiry and institution of those proceedings that the applicant apprehends that he would not have a fair trial at the hands of any Magistrate subordinate to this District Magistrate. The existence of any personal feeling on the part of Mr. Nagarkatti against this accused has been refuted by the former in his detailed reply to the application for transfer. I have no doubt that the applicant is wrong in attributing any bias to the Deputy Commissioner and also in thinking that he would not be fairly tried. At the same time, it is evident, and indeed admitted, that the Deputy Commissioner has been involved in this case to an unusual degree. He was perfectly within his rights as head of the District, and no doubt thought it his duty to investigate alleged scandals and see that the wheels of justice were set in motion. The result, however, in this case has been that it was he himself who lodged the first information report and that he will have to be examined as a witness for the prosecution. It would, no doubt, be somewhat embarrassing to the trial Magistrate to have his Deputy Commissioner as a witness before him, especially when the accused is inclined to criticize the manner of the investigation made against him. The learned Advocate-General candidly admits that from this point of view he is unable to argue against the application.

(2.) IN Emperor v. Wahid Ali Khan (1910) 32 All 642 there was a very similar case in which the District Magistrate had taken a keen personal interest in the matters leading up to the trial and had himself instituted the proceedings and was more or less convinced of the applicant's guilt. The case was transferred beyond the district, although it was remarked that there was no doubt whatever that the District Magistrate was moved by the very best intention and desired only to see that wrongdoers were punished: Deo Dutt v. Emperor AIR 1934 Oudh 452 is also referred to. In Emperor v. Ram Kishan Das (1913) 35 All 5 it was even held that the refusal of the District Magistrate to grant an interview and the cancelling of the accused's license for arms were enough to create a reasonable apprehension in the accused's mind. 3.I hold that the present case ought to be transferred. The applicant lives at Warora, and probably a number of witnesses also belong to that place, which is almost as close to Wardha as it is to Chanda headquarters. The transfer of the case to Wardha will therefore not entail very much extra expense, and that is the most convenient district to which to send it. It is therefore transferred to the District Magistrate, Wardha, with power either to try it himself or to transfer it to one of his First Class Magistrates competent to try it.