PANDURANG KRISHNAJI DEOTALE Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application for transfer of a pending criminal case. The applicant, Pandurang Krishnaji Deotale, described as a malguzar and a durbari, etc., has been ace sed of offences under Sections 426 and 295, I.P.C., by one Karim Miya Musalman, the complaint being that the applicant has desecrated and destroyed a certain tomb of a Mahomedan saint. The complaint would appear to have been filed in the Court of the City Magistrate, Nagpur, who endorsed it for disposal according to law to a Mahomedan Honorary Magistrate of the second class. It is not clear on what grounds the order of transfer was passed, or under what provision of law, and it is alleged on behalf of the applicant that, under the ordinary routine, the case should have been filed in the Court of another Magistrate of the second class who happens to be a Hindu. The present applicant applied to the District Magistrate, Nagpur, for transfer of the case. The District Magistrate passed an order to the effect that the case did not appear to be a communal one as 14 prosecution witnesses were Hindus and only seven Mahomedans. In these circumstances he declined to transfer the case.

(2.) FOR my own part it seems to me impossible at the present juncture for this Court, like any other one, to ignore the patent fact that considerable communal tension exists all over India. The very nature of the present criminal complaint tends to make it a communal one. A Hindu of some standing in the locality concerned is said to have desecrated the tomb of a Mahamedan saint and is being criminally prosecuted therefor by a Mahomedan. A copy of the appeal has been produced by the applicant relating to the case, showing that an appeal is being made to the Mahomedan community to collect funds for carrying on the case and the like. In those circumstances, I am unable to agree with the learned District Magistrate either in the terms of the order in which he dismissed the application for transfer, or in his letter to this Court showing cause against the present application, in which he states that the case is of no administrative importance.

(3.) I now desire, however, to pass to the allegation put forward on behalf of the applicant that a fair and impartial trial was unlikely to be had in the Court of the Second Class Honorary Magistrate, to whom the City Magistrate sent the criminal complaint for disposal. I desire at once to dissociate myself from what, in effect, is the allegation offered on behalf of the applicant in this connexion, viz., that the mere fact of this case having been sent to an Honorary Magistrate, who happens to be a Mahomedan, gives him reasonable cause for apprehension that he will not have a fair and impartial trial. An intolerable position would arise, if it were to be open to any accused person in a case of a communal or quasi-communal nature to obtain a transfer of a case from the Court of a Hindu Magistrate merely because he, the accused, was a Mahomedan, or vice versa. I have, however, been referred to the decision of Hallifax, A.J.C., in Abdulla v. Baharam A.I.R. 1926 Nag. 448. While, with deference, I am not prepared, as at present advised, fully to agree with that decision, I do not find it necessary at the juncture to refer this matter to a Bench of this Court. It seems to me in the present case that, if the standard laid down by Hallifax, A.J.C., in the said case be accepted as correct, then the applicant would be entitled to a transfer of the case even under Section 526(1)(a), Criminal P.C. The applicant may be a Durban, a malguzar, and a man of some little position, but I have little doubt but that he, however unreasonably, does entertain some fear that he might not receive a fair and impartial trial in the Court of the Honorary Magistrate. For my own part, however, with all deference I should have found myself unable to accept the dictum laid down in the case quoted above that, if an accused person does, in fact, believe that he will not have a fair and impartial trial in a certain tribunal however unreasonable that belief may be, the case should be transferred to another Court. I may say that, for my own part, it appears to me that the criterion for a transfer under Clause (1)(a) of the section quoted is that this Court must be of opinion that the applicant will not receive a fair and impartial trial in the Court below. Again, I am not prepared to admit that merely because the applicant entertains an absolutely unreasonable belief that he will not have a fair trial, the fact would be sufficient to order a transfer under Clause (a), Section 526(1), Criminal P.C. As I have said, however, I do not find it necessary to decide the present case under Clause (a) and, therefore, it is needless at the present juncture to refer the point I have alluded to to a Bench.