KRISHNA MURARILAL Vs. EMPEROR

JUDGEMENT

(1.) 1. The four applicants have applied for transfer of a case, in which they were the accused, from the file of Mr. G.L. Mukerji, Headquarter Magistrate, Nagpur, to another competent Court. The trial has been proceeding for a long time and the applicants made no application for transfer until it reached a stage at which they were examined. At this state the Magistrate made use of a document which he states he had obtained from counsel for the prosecution. While there can be no objection to suggestions on the part of the prosecuting counsel, it appears improper for the Magistrate to base his examination of an accused on detailed instructions given by counsel for the prosecution. Some of the questions put by the Magistrate have been read to me; they are very badly framed as a number of matters are put to the accused under examination in one question. The Magistrate does not seem to have applied his mind to the point of the suitability of the questions. The procedure of the Magistrate does suggest that he is too apt to be influenced by suggestions made by the prosecuting counsel. Another fact which is not disputed is that the re-cord of the evidence contains a good deal of material which he should not have done. If the Magistrate failed to give attention to objections made when that evidence was recorded, it is at least doubtful whether he will be able to discriminate between admissible and inadmissible evidence when he delivers judgment. The learned District Magistrate, when dismissing the application for transfer, remarked : He will get no thanks at all from trying to be all things to all sides and never taking a firm and impartial line of his own with both sides. The record of the evidence does seem to me to contain a good deal which will have to be discarded from the Magistrate's mind before he comes to a final decision.

(2.) FAILURE to take a firm and impartial line may clearly result in failure to write an impartial judgment. If the Magistrate's conduct does not show that he is biased on behalf of the prosecution, this conduct has nevertheless been at times unfair to the accused. In my opinion, it is expedient for the ends of justice to direct a transfer of this case. Another Magistrate should not find it equally difficult in distinguishing between the relevant and irrelevant portions of the evidence on record and should be able to deal impartially with the suggestions made or arguments put forward by counsel on the other side. The applicants have not asked for a de novo trial, and I direct under the provisions of Section 561(a), Criminal P. C., that the case should proceed at the stage of examination of the accused. The accused should again be examined. The District Magistrate should select the officer who will conduct the trial.