EMPEROR Vs. JAGGAN

JUDGEMENT

(1.) This is an application for the transfer of a case pending in the court of the Joint Magistrate of Cawnpore and the prayer is that it be transferred to another district outside Cawnpore and be tried there by a competent Magistrate. The application is, as the law requires, supported by an affidavit. The affidavit extends over twenty-one paragraphs. The person who makes the affidavit is one Kunwar Cheda Singh and he describes himself as the pairokar of the applicants Jaggan and Budhu.

(2.) The proceedings out of which the application arises are proceedings brought under Section 110 of the Code of Criminal Procedure.

(3.) The record is not before me, but the applicants have been represented in court by learned Counsel. The application has been opposed by the learned Government Advocate appearing on behalf of the District Magistrate of Cawnpore. From the arguments addressed to me the case is apparently one which was based upon Section 110, Clause (d). The learned Counsel who appears for Budhu describes the application, which was instituted as far back as the 23rd of October, 1913, as an application that the two men, Jaggan and Budhu with others had been in the habit of extorting moneyes, &c. I am told that no fewer than thirty witnesses had been put forward as being witnesses who would depose to the fact that Jaggan and Budhu were persons who habitually committed extortion. At a later stage of the case the police, I understand, asked that six witnesses more might be sent for; they were sent for and examined. The exact date is not before me, but it may be inferred from paragraph twelve of the affidavit that some time before the 18th of November, 1913, Jaggan and Budhu had been called upon to enter upon their defence and to produce their evidence. Jaggan and Budhu appear to have asked that the witnesses who had deposed against them might be recalled and cross-examined, For the purposes of this cross-examination Jaggan and Budhu, according to the affidavit, retained the services of Mr. Lincoln, barrister-at- law of the Lucknow Bar, and of Mr. Khare, Mr. David and Mr. Ajudhia Nath Tiwari of the local Bar. The cross-examination appears to have lasted up to the 24th of November, 1913, when in consequence of something which occurred in the course of the cross-examination Mr. Lincoln and Mr, Khare (vide paragraph 13 of the affidavit) threw up their briefs and retired from the case. According to the affidavit (vide paragraph 17) the Joint Magistrate fixed the 20th of December as the date for producing defence witnesses. A partial list of witnesses, so runs the affidavit, was obtained. Before the cross-examination was over, another list of over 200 witnesses was filed on the 19th of December. The request was that these 200 witnesses be summoned, The Joint Magistrate, so I am told by the learned Counsel for Budhu, asked that this Hat might be considered and modified. No modification was made, and the Joint Magistrate by an order which is not before me, but which was read over to me in court, dismissed the application for the summoning of these witnesses and in his order stated that he refused it under the powers given him under Section 257 of the Code of Criminal Procedure as an application made for the purpose of vexation and delay and for defeating the ends of justice. He appears to have followed the law and to have recorded the reasons for refusing the application in writing. In the arguments addressed to me in support of the application for transfer no attempt was made to support the application on any ground except that contained in paragraph (e) of Clause (1) of Section 526, i.e. that the order was expedient for the ends of justice. From certain remarks made I was led to infer that the applicants apprehended that they would not have a fair and impartial inquiry in the court of the Joint Magistrate, so I have considered the application both in the light of paragraph (a) and of paragraph (e) of Section 526.