RAGHU SINGH Vs. BHAIRO PRASAD TRIGUNAIT

JUDGEMENT

(1.) This is an application for transfer of a case pending against the petitioners in the Court of Mr. S.N. Chakravarty, a Magistrate exercising first class powers at Giridih. The stage which the case has reached is that the evidence of both parties has closed, arguments have been heard and the only thing that remains to be done is to pass orders in it. The principal question of law which has been raised is if this Court can transfer the case at this stage under the provisions of Section 526 (1), Criminal P.C.

(2.) It is necessary to state the facts out of which the question has arisen. There is a tank called Kaiyoktar Ahar which, it is stated, has been the subject of a long standing dispute between the petitioners on one side and the opposite party, Nos. 1 and 2, on the other. Opposite party Nos. 1 and 2 alleged that they had taken settlement of the tank from the landlord, Mahant of Khuti. Their further allegation was that on 28 May 1947, the petitioners along with others committed theft of fish from the aforesaid tank. A first information was lodged by opposite party No. 1 about this occurrence, and the local police submitted a charge-sheet for offence, under Secs.143 and 879, Indian Penal Code, against the petitioners. The learned Sub Divisional Magistrate took cognizance of the ease against the petitioners and made it over to Mr. S.N. Sinba, a Magistrate exercising first class powers, for trial. Mr. S.N. Sinba examined witnesses, framed charges against the petitioners on 5th August 1947, and adjourned the ease till 13th. September 1947. The case was again adjourned till 6 October 1947, on which day the prosecution witnesses were cross-examined and discharged, and the petitioners were examined. The next date fixed was 6 November 1917, on which date a further adjournment till 27 November 1947, was given for examination of defence witnesses. In the meantime Mr. S.N. Sinhri, was transferred and the case was made over to Mr. S.N. Chakravarty, the present Magistrate before whom the case is pending, on 17 January 1948. The petitioners at first wanted a trial de novo, but subsequently waived their right to such a trial. On 9 April 1948, Mr. Chakravarty examined some defence witnesses. It is stated that he also heard arguments, though there is no note to that effect in the order-sheet. He fixed 16 April 1948, for orders. On that date the Magistrate was absent, having gone to some other place in connection with his other duties On 16 April 1948, the petitioners came to know that the learned trying Magistrate had enquired into a petition which the opposite party No. 1 had sent to the Prime Minister of Bihar, in which several allegations were made against the petitioners including the allegation that they had committed theft of fish from the tank in question in May 1947. I have had the advantage of seeing that petition as also the enquiry report submitted by the learned trying Magistrate in connection with that petition. The petition as also the enquiry report are parts of the record of a proceeding under Section 107, Criminal P.C. instituted against the petitioners, which is pending before the learned Munsif- Magistrate of Giridih. The enquiry report shows that the learned Magistrate had enquired into the matter locally on 23 March 1948. I quote below some extracts from the report in order to show what opinion the trying Magistrate had formed as a result of the enquiry: One Sona Ram Mahto of Potso who was a witness lor the petitioner in a criminal case told me that as he had deposed for the petitioner, he had been assaulted by Tulsi Singh and Jagdish Ojha. Some of the witnesses of other villages, viz., Chaukidar Peari Mahto 61 Posto, Mitan Mahto of Barkitengra, Jamadar Chaudhury of Argaro, who is the Jeth Baiyat of the village, Chiru Mian of Surhi and Jhari Singh of Barkitengra told me that all that the Trigunait has narrated in his petition is correct, and that they know about the looting away of fish from the petitioner's tank and also about the forcible cutting away of paddy by the men of the Mahant. I also made enquiry about this from the Sub-Inspector of police, Nawadib. As he is new to the Police Station, I questioned the Assistant Sub-Inspector, and I was informed that the petitioner's allegations were more or less correct.

(3.) It would appear from the said extracts that the learned trying Magistrate had not only taken the statements of one Sona Ram, who was also examined in the criminal case pending before the trying Magistrate, behind the back of the petitioners, but had also examined other. people about the same occurrence, namely, the alleged removal of fish from the tank in question, which was sub judice before him. He had examined those persons in the absence of the petitioners, who have had no opportunity of testing the correctness of their testimony. That was not all but the learned Magistrate expressed his opinion that the story of the looting away of fish was true. The report which the learned Magistrate submitted was dated 28 March 1948, that is, at a time when a criminal case about the same subject was pending before him. It was on the basis of the report of the learned Magistrate that the proceeding under Section 107, Criminal P.C., was instituted against the petitioners.