BINDESHWARI MISSIR Vs. EMPEROR

JUDGEMENT

(1.) This is an application for transfer of proceedings under Section 110 pending in the Court of the Sub-divisional Magistrate of Bettiah. Those proceedings were based on a report of the Sub-Inspector of Bagaha which was submitted under the orders of the Magistrate on a complaint which was filed before the Magistrate through one Mr. Martin, the Forest Officer of the Bettiah Estate, to the effect that the petitioners were "habitual graziers of crops." Mr. Martin had noted on the petition of complaint "that the complainants crop had been badly grazed and that quite a few of the Ahirs noted in the complaint had been prosecuted for similar offence." The case under Section 110 was fixed for hearing at Bagaha on 16th January 1937, and the petitioners asserted, among other things, that on this date the Magistrate went to Bagaha and put up with Mr. Martin who is the real complainant in this case and in his compound the Magistrate held his Court and. examined witnesses on behalf of the prosecution.

(2.) In more than one paragraph of their petition the petitioners stated that the Magistrate was intimate with Mr. Martin and in the explanation submitted by him, the learned Magistrate merely says that "what the petitioners believe is not evidence" and that their statements are "purely conjectural and do not admit of any discussion." It would I think have been much more satisfactory if the Magistrate had denied his intimacy with Mr. Martin if that intimacy were not a fact. Facts of that kind can only be inferred from the circumstances by strangers and it is unsatisfactory to say in such a case merely that it is for the petitioners to make out their allegations. That Mr. Martin endorsed the complaint of the complainants and that the Magistrate has been putting up with Mr. Martin seems indisputable. As was to be expected, the Magistrate himself has no desire to try the case himself, but he points out that he was the only Magistrate in the Sub-division empowered to try the case and that the transfer would result in great administrative inconvenience. For the Crown, an attempt has been made to show that the Magistrate has acted perfectly correctly in the proceedings but that is not the question. The question is whether or not the petitioners have a reasonable apprehension of prejudice from Mr. Martin's connection with the case and with the Magistrate. That Mr. Martin is neither the complainant nor a witness in the case is neither here nor there. It may even be that the Magistrate is by no means intimate with Mr. Martin, but in that case, it is a pity that the Magistrate did not say so. It is undesirable that he should be putting up with Mr. Martin while trying a case which started on a complaint endorsed by Mr. Martin.

(3.) The application for transfer must therefore be allowed and the proceedings transferred to Motihari to be tried by such competent Magistrate as the District Magistrate may nominate.