RAZA HUSSAIN Vs. EMPEROR

JUDGEMENT

(1.) This is one of those troublesome and difficult cases, which are dignified by the misleading description of an application for transfer. I am quite satisfied that no grounds for transfer exist, that the affidavit, which is put forward to support it, is a scandalous and irrelevant document, which must be removed from the file of the Court where it ought never to have been placed, and that I might confine myself to the simple duty of dismissing this application. It is true that there are two so- called complaints against the particular gentleman who is trying the charge under Section 110 against the applicant. One of them is that he refused to make an order disclosing to the accused the names of the witnesses for the prosecution. The circumstances under which he did so do not very clearly appear. My attention has not been drawn to any provision of the law which has been broken in this matter, and I decline to regard that as a serious allegation in any way affecting this application.

(2.) The other allegation is that he has shown "extraordinary leniency" to the witnesses for the prosecution. What does this mean? It is one of those vague and general suggestions which generally mean nothing, except a desire to be offensive. What it means I do not know, except so far as Mr. Muhammad Husain for the applicant was able to give me an explanation. It appears that a gentleman of the advanced age of 55, in the month of June in the course of his durance while in the witness-box, which included three days cross-examination was offered a chair by the Magistrate. Whether this was an act of leniency, or misplaced courtesy, I do not stop to enquire. I have no hesitation in holding that it is not an adequate ground for a broad charge against the Magistrate of having treated the witnesses for the prosecution with extraordinary leniency and undue favour. The rest of the affidavit is of the most irrelevant character possible to conceive. It is difficult to summarize 65 paragraphs of this sort of stuff in a compendious statement, but, generally speaking, it consists of a series of roving charges of misconduct, malicious and unfair prosecution on the part, so far as I can gather, of the District Magistrate and his subordinate officers and of the police in the district of Banda, where this applicant-resides. It opens up past matters, it flings charges against persons who have nothing whatever to do with this particular case, and it is one of the most unjustifiable documents I have ever seen filed in a Court of law.

(3.) There is an old saying that "if you only throw enough mud some is certain to stick." Whether that was the object of the affidavit is no concern of mine. But there is a fundamental and unanswerable objection to the practice of filing such affidavits, and I would appeal to the profession in this High Court, if they have any regard for their own reputation for professional conduct to abstain from lending themselves to such outrageous proceedings. The objection to such a proceeding is fairly obvious and not difficult to state. If the Court is silent with regard to such matters, which are, of course, highly controversial, it is assumed because proceedings in a Court of law are public and it is impossible to restrain or control the publication of matter, however offensive-it is assumed possibly only by ignorant and stupid people, who have no opportunity of investigating such matters possibly by persons who ought to know better, that there is something in it or such allegations would not be made. If, on the other hand, a Court endeavours to form an opinion upon such matters, it is doing so obviously on inadequate materials and may be led into serious error and unconsciously inflicting injustice or undeserved pain upon individuals. For example: a reference in an affidavit of this kind to previous cases, in which the trying officer in this case was not concerned, is clearly irrelevant. If it were relevant, it would be the duty of the Court to re- open and judicially deal with previous matters which have no concern with the matter the Court is called upon to decide.