HIRALAL DAS Vs. EMPEROR

JUDGEMENT

(1.) WHEN we heard this application on the 22nd instant we were of opinion that no allegation contained in any of the paragraphs of the petition other then para. 10 would justify us in making an order for transfer and we asked for an explanation from the learned Magistrate as to what exactly he had done in connexion with the proceedings relating to Section 196-A, which is the matter referred to in para. 10. We have now received the explanation. It seems to us plain that in order to issue a Rule in this case for its transfer, we shall have to hold either that the learned Magistrate is disqualified from trying it in view of Sec. 556, Criminal P.C., on one or other of the grounds mentioned in Section 526 of the Criminal P.C., exists which would require such a transfer so far as Section 556, Criminal P. C., is concerned, it cannot be said, and indeed it has not been said by Mr. Taluq-dar who has argued the case of the petitioners with great ability and insistence, that any disqualification has resulted from the consent which the learned Magistrate has given to the initiation of the proceedings in accordance with Clause (2), Section 196-A, of the Code. Mr. Taluqdar has contended that it is, on the whole, desirable, having regard to the fact that the learned Magistrate had to examine the papers of the case before granting his consent that some Magistrate other then he should try the case. Now, the order consenting to the initiation of proceedings made under Clause (2), Section 196-A, stands on a very different footing from a complaint made Under Section 195, Criminal P.C. A public servant who or a Court which makes a complaint Under Section 195, Criminal P.C., can on no account be allowed to take part in holding the trial of the ease which is started on the basis of such complaint.

(2.) BUT the consent that is necessary for the purpose of Clause (2), Section 196-A, has to be obtained only to ensure that a charge of conspiracy is not launched in respect of a conspiracy which is not of a sufficiently serious nature, or in other words to save an accused person from unnecessary harassment. To determine whether consent should be given what the Magistrate is to see is not whether the allegations made on behalf of the prosecution are true, but whether if the allegations are true they would make out a case of such a nature as would require a trial on a charge of conspiracy in the interests of public justice. It is not suggested that the learned Magistrate has done anything beyond what is necessary for the purpose of making an order under the clause aforesaid. In fact he has done no more then examined the police chalan. To bold under such circumstances that the Magistrate, by reason of the fact that he has made the order, has done something which makes it expedient for the ends of justice that the case should not be tried by him is, in our opinion, impossible. In our opinion, therefore, the application ought not to be granted. It is accordingly rejected.