HEMANTA KUMAR SARKAR Vs. NANDA KUMAR SINGH

JUDGEMENT

(1.) This is an application for transfer under Section 526, Criminal P.C., the relevant facts being these: Petitioner 1 was the Managing Director of a certain Limited Company, and petitioner 2 was another employee. On 9 December 1935 one of the Directors Nanda Kumar Singh, filed a complaint before Mr. L.K. Sen, Suburban Police Magistrate, Alipore, alleging that the petitioners had misappropriated the funds of the company. The result of this was that after certain preliminary proceedings a case was started against the petitioners, on 25 May 1936, charges were framed under Secs.406, 120-B and 424, I.P.C. On 1 September the two accused were examined under Section 342, Criminal P. C, and the case was adjourned to 15th September. On that date the defence asked for the recall of certain witnesses for further cross-examination. The learned Magistrate allowed the prayer in regard to some witnesses and rejected it in regard to others. Thereupon the accused asked for an adjournment to file a petition under Section 526, Criminal P.C., for the transfer of the case from the file of the trying Magistrate, Mr. L.K. Sen. They first moved the Additional District Magistrate, 24-Parganas, who refused the prayer by his order dated 8 October 1936. Thereupon the petitioners moved this Court. In the petition various grounds are stated and the main grievance of the petitioners would appear to be that the learned trying Magistrate was prejudiced against them inasmuch as he was giving facilities to the prosecution for the production of evidence, while refusing similar facilities to the defence. A further ground was stated in Para. 24 of the petition which runs as follows: That on or about 15 September 1936 your petitioners have obtained informations regarding the following matter: P.W. 20, the complainant is the proprietor of the Salkia Transport Agency and has several motor buses and lorries for carrying on his business. One Babu Ajit Sen, is a son of the learned Magistrate and acts as a salesman of Messrs D.M.G. Ltd. Agents for Mercedes Benz cars for Bengal, Bihar and Orissa. Your petitioners have information that Babu Ajit Sen was negotiating with P.W. 20 for purchase through him of motor cars and chassis from the said company and as a result of the negotiation P.W.20, the complainant purchased through Babu Ajit Sen one chassis. Your petitioners are appending hereto copies of registration certificate showing purchase of chassis by P.W. 20 from the D.M.G. Ltd. and an affidavit sworn by one Sukumar Bose.

(2.) In support of this allegation the petitioners annexed to the petition a copy of a letter from the Deputy Commissioner of Police, Public Vehicles Department, bearing the date of 23rd September 1936 going to show that the motor car was registered in the name of Nanda Kumar Singh on 4 August 1936 and also an affidavit bearing the same date, namely 23rd September 1936, and sworn by one Sukumar Bose.

(3.) The present Rule was issued upon para. 24 and so we are now confined to the definite ground alleged therein. The petition is resisted in this Court both by the complainant appearing through the learned Advocate-General and by the Crown. The complainant has filed a counter affidavit traversing the grounds alleged in the petition and also the affidavit filed in support thereof and the learned trying Magistrate has also submitted an explanation. In this Court the matter has been argued upon the footing that a fair and impartial trial cannot be had in the Court of Mr. L.K. Sen, Suburban Police Magistrate of Alipore. The principle upon which transfer may be ordered by this Court on this ground is well-known. To quote the well- known words of Lord Hewart, C.J., in Bex. V/s. Sussex Justices (1924) 1KB 256: It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.