(1.) This is an application under Section 526, Criminal P.C., for the transfer of a criminal case pending before the Sub-Divisional Magistrate of Bettiah to some other Court of competent jurisdiction at Motihari in the District of Champaran. A case under Section 378/347, Indian Penal Code, was on the information of one Manohar Bhat initiated by the Sub-Inspector of Bagha Police Station, the case for the prosecution being that the petitioners had taken away a cow and a calf belonging to the aforesaid Manohar Bhat in lieu of certain dues which are admitted by Manohar. The story further is that Mahohar himself was forcibly carried to a distance of two or three bighas. In Court five witnesses have been examined for the prosecution. Witness 1 is Manohar himself, witness 5 is the Sub-Inspector of Police. P. Ws. 2 and 3 were examined in support of the prosecution case. Now, on a petition filed by the Court Sub-Inspector who is evidently appearing on behalf of the prosecution, p. Ws. 2, 3 and 4 were all declared hostile. The transfer is prayed for on the ground that the accused have got a reasonable apprehension that they would not get a fair trial before the Court in which the ease is proceeding. There are various allegations made: for example, that the Magistrate has examined the accused under Section 342, Criminal P.C., exhaustively before the prosecution case was closed. That by it self would not show that there was any bias or prejudice in the mind of the learned Magistrate. Section 342 authorises a Magistrate in a criminal case to examine the accused at any stage of the trial in order to have the evidence before him clarified. The stage at which examination under Section 342 is imperative is after the prosecution has closed its case. This point also is not such as would entitle the accused to claim a transfer. The next allegation is that the learned Magistrate has allowed certain pieces of inadmissible evidence to be brought on the record; but that by itself may indicate an error of law, not necessarily any bias in the mind of the Magistrate. The learned District Magistrate has while dealing with the matter under Section 528 said that some of these inadmissible pieces of evidence should not be taken notice of in dealing with the facts of the case. But the matter does not end here; para. 4 of the petition to this Court, supported by an p affidavit, runs as follows: That as the witnesses made statements before him and they did not support the prosecution ease, the learned Sub-Divisional Officer lost his temper and made several remarks such as that the witnesses had been won over by the accused and further that their evidence would not affect the merits of the case and many more remarks prejudicial to the accused petitioners.
(2.) Although the learned Magistrate has submitted a long explanation, this particular allegation has not been denied or traversed. Courts should be very cautious in making observations during the course of a trial, because in dealing with a petition for transfer the superior Courts have to see whether or not particular observations made by the Court will raise a reasonable apprehension in the mind of the accused that he would not have a fair trial in that Court. Observations like those quoted above must necessarily raise such an apprehension in the mind of the accused. The other allegation is that whenever any objection was sought to be taken on behalf of the accused, the Magistrate would not in the first instance listen to it and then he would insist upon a petition being filed with a stamp of 12 annas for every objection raised find from the records of the case that some evidence has been led with regard to admission of statements made by one Ambika Tewari (who is not a witness in the case) through the Sub-Inspector P.W. 5. The Magistrate could have noted the objection, disallowed it or allowed it after consideration, but not to allow the lawyer appearing on behalf of the accused to take an oral objection would certainly create an apprehension in the mind of the accused with regard to the impartiality of the Court, especially when the Magistrate had observed that the witnesses had been won over and their statements would not affect the merits of the case against the petitioner.
(3.) The trial has not proceeded very far. Only the witnesses for the prosecution appear to have been examined. Mr. Nirsu Narayan Sinha further undertakes that the accused will not claim a de novo trial. Some of the incidents alleged in the petition may not deserve notice, but once a serious incident is alleged and that is not denied by the Magistrate, this Court has to see what the cumulative effect of all that has happened is likely to be in the mind of the person in the position of the accused, and whether a reasonable apprehension has been raised in his rqind that he would not get a fair trial in the particular Court. I am satisfied that the case should be transferred to the District Magistrate of Champaran who may try it himself or have it tried by some other Magistrate of competent jurisdiction at Motihari. The trial will commence from the stage at which it was stopped by the Sub-divisional Magistrate at Bettiah, and this undertaking has been given by the petitioner through the learned advocate, Mr. Nirsu Narayan Sinha.