Meredith, J.:— The nature of the applications and their inter-connection will become apparent as I state the facts. No. 618 is an application by one Ram Prasad Mandal of village Dewanganj, P.S Partapganj, within the Supaul sub-division of the Saharsa sub-district, for transfer of proceedings under Section 107 of the Cr PC. (Criminal Miscellaneous case no. 64—T.R 202 of 1917) from the Court of Mr. S.S.A Nazir, Magistrate 1st class, Supaul, where they are pending, to any Magistrate in the neighbouring sub-division of Madhipura or to Saharsa. It is stated that two landlords of village Dewanganj, Mr. Q.S Bennett and Babu Lakshmi Narain Lall Das, have disputes with their tenants. In 1947 proceedings under Section 144 of the Cr PC were instituted at the instance of one Ram Lakhan Das, a tenant, against Mr. Bennett. The result was, however, that on 6th September 1947, an order under S. 144 was passed not against Mr. Bennett, but against the tenants, and, as a result of matters disclosed in those proceedings the same day the then Sub-divisional Magistrate, Mr. S.C Misra, initiated proceedings under Section 107 of the Cr PC against the petitioner, Ram Prasad Mandal. While these proceedings were pending, it is said that Lakshmi Narain Lall Das filed a petition before Babu Pancham Narain Singh, President of the Local Thana Congress Committee, and, on 17th November 1947, Pancham Narain Singh sent this to the Sub-divisional Magistrate with an endorsement which must be quoted in full:

“Enclosed is a petition of one Babu Lakshminarain Lall Dass of Falkahi against one Ram Prasad Mandal and his associates. It is enough to say that Ram Prasad Mandal of Dewanganj has formed a vary for midable gang of persons who have been causing innumerable harms and mischiefs to the law-abiding, respectable as well as poor innocent persons of Mouza Chilauni, Tola Dewanganj, Fulkai and Babuthan. Due to his ill and nefarious propaganda people have gone had and are ready to loot and harvest standing crops of big persons and Babu Lakshmi Narayan Lall Das and Mr. Bennett of Dewanganj. It has become the method of the gang to out down and collect paddy of those people with whose lands the gang have practically no connection at all. Such a very bad situation has been created by this Ram Prasad Mandal and his followers that almost all the peace-abiding people having standing crops of paddy in their lands find themselves insecure and unsafe to harvest and bring it to their farm as he (Ram Prasad Mandal) has declared to loot it. Nearly all well-to-do people and public workers know fully about his nefarious activities. There is every likelihood of a breach of the peace during the present harvesting. Hence I request you to kindly take suitable action against the man in due time to prevent the blood-shed, loot and murder by detaining the man in custody at least for the period of harvesting of paddy. He has also incited and ordered his gang and ocher people to graze the lands of those persons who do not oo-operate with him and his party.”

2. At this time the s. 107 proceedings were still pending in the Sub-divisional Magistrate's Court, and on 22nd November, on receipt of this communication, the Sub-divisional Magistrate recorded this order in the order sheet:

“Heard. Also perused and considered two petitions, one sent by Mr. Bennett and the other by Baba Lakshminarain Lall Das, together with a full report of the President, Thana Congress Committee, about the situation prevailing in the locality due to the activities of Ram Prasad Mandal. It is obvious from these petitions and the report of the Thana Congress Committee that Ram Prasad Mandal has now become so violent that a serious breach of the peace may be apprehended at any moment. The situation has become all the more aggravated due to the impending harvesting season. In which Ram Prasad Mandal and his associates appear to be inciting people to indiscriminately and forcibly harvest paddy even in fields in which they cannot have even a semblance of right. In a situation like this the only step that can succeed in preventing a serious breach of the peace is the prevention of Ram Prasad-Mandal from having unrestricted movements. I, there fore, demand an interim bond of Rs. 500 with two sureties of the like amount each for keeping the peace during the pendency of this proceeding. Ram Prasad Mandal is committed to hajat pending the execution of this interim bond. The enquiry shall proceed. To my file for disposal. Call upon Mr. Bennett, Mr. Lakshmi Narain Lall Das petitioners and the President, Thana Congress Committee, to produce their witnesses on 19th December 1947.”

3. On 19th, the Sub-divisional Magistrate notes:

“The A.P.P files a petition that he has tested the evidence and he prays that the proceeding should be converted into one under Section 110 of the Cr PC. The number of charges mentioned in the amended proceeding is so many as to justify a proceeding under Section 110 of the Cr PC. Let the proceeding be, therefore, converted from Section 107 to Section 110 of the Cr PC. Draw up a fresh proceeding and let it be immediately served on the opposite party. He may show cause, if any, on 3rd January 1948.”

4. No police report was called for before making this order. Against it Ram Prasad Mandal moved the Sessions Judge, and on 16th Jauuary 1948, the learned Sessions Judge set aside the conversion order, saying that before making it the petitioner should have been given a chance to show cause. Meanwhile Ram Prasad Mandal seems to have been released on furnishing interim security, because on 26th April we find an order:

“Ram Prasad Mandal is absconding. Issue today non-bailable warrant of arrest as well as processes under Sections 87 and 88 of the Cr PC, against the accused for 17th May 1948. The other party present with witnesses. Ram Prasad Mandal shall, therefore, pay a sum of Rs. 50 as cost to the opposite party Mr. Bennett. His petition for time is rejected.”

5. On 3rd May the order is:

“Ram Prasad Mandal surrenders in Court. Perused orders of the Sessions Judge dated 16th January 1948. The police have since already started proceedings under Section 110 of the Cr PC, against Ram Prasad Mandal and others separately. It is no longer, therefore necessary to proceed with that part of the case herein. Let the proceeding under Section 107 of the Cr PC, alone proceed.”

6. It seems that on 1st April the police had submitted a report for S. 110, proceedings against the petitioner and others, and the Sub divisional Magistrate had at once issued warrants of arrest pailable for Rs. 5,000 against the petitioner. The petitioner moved the High Court, and on 8th September 1948, the High Court quashed the pro-seeding in severe language, stating that the Sub-divisional Officer had acted on the police report without proper materials and had more or less surrendered his functions to the police. Meanwhile, on 14th May, the S. 107 proceedings had been transferred to another Magistrate, Mr. Darda, for disposal. There they remained pending for some time, and on 20th November 1948, the Sub-divisional Magistrate withdrew the case to the general file and transferred it to the Magistrate, Mr. Nazir, where it is now pending.

7. The petitioner asks for transfer on the ground that the Sub-divisional Magistrate, who has administrative control over the other Magistrates, has been prejudiced against him by the President Thana Congress Committee, who is acting in the interest of the local landlords.

8. It is stated further that on 26th November one Bolat Mian, who is alleged to be a creature of Mr. Bennett, instituted a criminal case under Ss. 147 and 506, Penal Code against the petitioner's brother, son and nephew, and on the same day the Sub-divisional Magistrate also started proceedings under s. 107 against those persons. The criminal case ended in acquittal on the benefit of doubt on 15th April 1948.

9. During the pendency of these cases, while the accused were on bail, Bolat Mian approach, ed Pandit Bajendra Misra, M.L.A, for that elaka, with a petition stating that the accused on bail were threatening him and his witnesses. Pandit Rajendra Misra on 7th December 1947, forwarded this to the Sub-divisional Magistrate with this endorsement:

“Forwarded in original to the Sab-divisional Officer, Supaul. Those of Dewanganj who are out on bail are said to be threatening the persons who moved against them. They are most undesirable and a source of trouble to the local society. Necessary steps may kindly be taken to suppress the undesirable, Such men should not have been out on bail.”

10. On 12th December the S. 107 case came before Mr. Nazir in the absence of the Sub divisional Magistrate, and he noted:

“The accused persons furnish bonds and bail bonds. Let the local police verify their fitness and report early. In the meanwhile the accused are remanded to hajat till 22-12.”

11. On the 22nd the case came before Mr. Misra, he noted:

“Seven members of the opposite party present. They may furnish fresh bonds. Shivajl Mandal's bond will be subject to the condition that he stays at Supaul. The other members must be produced and came shown on 22nd January 1948.”

12. After several adjournments, on 23rd April 1948, the case came before Mr. N. Jha who had replaced Mr. Misra as Sub-divisional Magistrate on 1st February 1948. He recorded this order:

“A petition is filed on behalf of Bolat Mian that Shiva Prasad Mandal and others, the accused, have been emboldened by the recent acquittal order to meet out further threats to him. Mr. P.K Banerji (another Magistrate) is leaving to night for the area. He will kindly enquire and report on the correctness of the petition by 8th May 1948. The case will be heard on 8th May 1948 onwards day to day.”

13. On 8/5 the case was transferred to Mr. Darda for disposal.

14. Meanwhile Mr. P.K Banerji had made the enquiry as directed on 27th April, and he submitted his report on 29th. In this report he stated that the case of Bolat Mian was that he had been threatened by the accused persons and asked to pay the expenses incurred by them in the criminal case brought by him as they had been acquitted. He (Mr. Banerji) had examined witnesses and found that no charge stood against the accused persons. The whole case, he said, was a fabricated and concocted one, and he submitted that a case under s. 211, Penal Code, might be started against the complainant and his P.Ws On this, on 8th May the Sub-divisional Magistrate, Mr. Jha, noted “vide order sheet”, but the order sheet neither of 8th May nor of any other date has any reference to this report.

15. The proceedings remained pending in the Court of Mr. Darda until he was transferred, and on 23rd November the case was withdrawn to the general file and transferred to Mr. S.S.A Nazir for disposal.

16. After their acquittal in the criminal case, the persons proceeded against had applied to the Sub-divisional Magistrate for dropping the proceedings on the ground that they had been instituted on the very same materials that had formed the subject matter of the criminal case. On this the Sub-Divisional Magistrate simply ordered “file”. There is no reference to the matter in the order sheet.

17. All this has been referred to by Ram Prasad Mandal in his petition as affording additional evidence of prejudice against him and the members of his family on the part of the local Magistrates under the influence not only of Baba Pancham Narain Singh, but also of Pandit Bajendra Misra, M.L.A, who, it is said, is also interesting himself on the side of the zemindars; and it is further asserted that Pandit Bajendra Misra is the sarhu of Mr. S.C Misra, the former Sub divisional Magistrate, and is also related to Mr. N. Jha, the present Sub-divisional Magistrate, whose son is married to the sister's daughter (bhagni) of Pandit Bajendra Misra. In his reply to the rule, Mr. Jha has said that these allegations are false, but “the truth of the matter is that this sub-division is situated in Mithila and some relationship or the other with every Maithil Officer, who happens to be posted in this area, can safely be attribated to Panditjee who has got a big family and a large number of relations, near and distant, direct and indirect. Panditjee is not at all directly related to me. My son is not married to the daughter of the daughter of his father.”

18. This proceeding under S. 107 against Shivaji Mandal and others forms the subject-matter of Criminal Miscellaneous case 622. In this case, the prayer is to quash the proceeding as based only on the materials upon which they had been acquitted in the criminal case by Mr. S.S.A Nazir, and, in the alternative, for transfer to any Court at Madhipura. The petitioners state that in the criminal case, after the complainant had been examined, warrants of arrest bailable for Rs. 1000 were issued against them. On their appearance some were released on bail, but suddenly on 6th December 1917, the Sub-divisional Magistrate, Mr. Misra, passed this order without assigning any reason: “Let these bonds be cancelled forthwith.” The petitioners, however, offered fresh bail, and were eventually acquitted. On 9th August 1948, after their acquittal, the petitioners applied to Mr. Darda for dropping S. 107-proceedings, but the only order passed thereon was “file”. On 25th October 1948, they again applied for dropping the proceedings, but again the order was simply “file”. The petitioners applied to the District Magistrate for transfer of the cases, but the District Magistrate, Saharsa, rejected the application and also refused to make a reference to the High Court for quashing the proceedings.

19. I now come to criminal case 619. In this case the petitioners are Ram Prasad Mandal, his brother, Shivaji Mandal, and their respective sons. They have also asked for a transfer, on similar grounds, of yet another S. 107 proceeding pending against them in the Court of Mr. N. Jha, the Sub-divisional Magistrate. This proceeding was started on a petition dated 16th March 1948, by one Jainandan Lall Das, who, according to the petitioners, is a sister's son of Lakshminarain Lall Das, the landlord; but this is denied. On receipt of this petition, the Sub-divisional Magistrate Mr. Jha, deferred it to the Sub-Inspector of Police for careful local enquiry and report by 16th April. On 15th no report had been received, and the Sub-Inspector was directed to report positively by 6th May. On 6th May the Sub-divisional Officer deals with a protest petition, and says that he sees no reason to withdraw the enquiry from the Sub-Inspector, and reminds him for the 21th. On 24th May it is recorded that the report was not yet received, and an urgent reminder was sent for 18th June. On 18th June another reminder was sent by registered post for 18th July. On 19th July, it is noted that no report had been received, and another reminder is sent. On 18th August the Sub-divisional Magistrate records this order:

“This is an important application for prevention of a breach of the peace by Ram Prasad Mandal of Dewanganj. The Sub-Inspector of Partapganj is sitting on the enquiry for five months. He does not wake up even after registered notice. Extract to S.P and to Sub-Inspector by registered post with acknowledgment due. Recall the enquiry from him. On a perusal of the application it appears to me that Ram Prasad Mandal is likely to commit a serious breach of the peace and that this cannot be prevented otherwise than by detaining him in prison. Issue non-bailable warrant of arrest against him for 7th September 1948, and draw up proceedings against him to show cause, if any, why he shall not execute a bond of Rs. 5000 with two sureties of Rs. 2500 each to keep the peace for a period of one year.”

20. This was certainly a most extraordinary order. The learned Sub-divisional Magistrate speaks of the police not waking up, but he himself only wakes up to the necessity of putting Ram Prasad Mandal in prison five months after the petition had been filed. He apparently had no reason to think that anything had happened during this long period of five months to disturb the peace on the grounds put forward in the petition. Yet after five months, on a perusal of this state petition, he suddenly announces that Ram Prasad Mandal must immediately be put in prison, otherwise a breach of the peace cannot be prevented. It may well be asked upon what materials he came to this conclusion. Moreover, he completely ignores the fact that another proceeding against Ram Prasad Mandal under S. 107 is actually pending in which interim security to keep the peace has been taken.

21. There is yet another curious circumstance. On 3rd September the police submitted a report saying that they had actually enquired into the petition and had submitted a report for proceeding under s. 107 against Ram Prasad Mandal as far back as 31st May. A copy of this alleged report was enclosed, and is as follows:

“I made enquiry into the petition locally and found as noted below. Ram Prasad Mandal of Dewanganj along with his associates are causing havoc in this locality, and the public peace and tranquillity is at stake. He is a first class lathial and used to graze crops, used to assault witnesses and public, used to abuse and threaten the public and witnesses against him. He also used to commit crime himself and also used to get orimes committed by his associates. Under the circumstances it is earnestly prayed that the first party, Ram Prasad Mandal may kindly be bound down under Section 107 of the Cr PC.”

22. Upon this the Sub-divisional Officer noted: “Vide order-sheet.” But there is no reference to the matter in the order-sheet of that date. On 7th September the following order appears, apparently written by some other officer in the absence of the Sub-divisional Magistrate:

“The accused is not present. No action seems to have been taken by the Bench Clerk in this important matter. This is an instance of gross negligence on the part the Bench Clerk. He is seriously warned. Issue non billable warrant of arrest against the accused returnable or 30th September. Also taka farther action in the latter as ordered by the Sab-divisional Officer in the revious order-sheet.”

23. On 30th September Mr. Jha recorded this order:

“Opposite party Ram Prasad Mandal is still at large. He comas to Supaul so mu; times, that the police is not treating him. May be for want of warrant of arrest, issue fresh non-bailable warrant of arrest against the opposite party and sand to each thana of the Sub-division for his arrest for 30th October 1948. Also issue process trader Sections 87 and 88 of the Cr PC, against the opposite party for 30th October, Bench Clerk severely earned foe delaying issue of the warrant of arrest by a week in an important matter like this. Sab-Inspector's report seen. Bench Clerk to trace out…. (illegible) referred to by the Sub-Inspector positively by 6th October 1948”

24. On 4th October we find

“accused Ram Prasad Mandal produced in custody by Sab-Inspector of Police, Supanl. He is remanded to hajat till 18th October. Pat up on the date fixed. Bail petition also moved.

25. Then on 6th October there in another order by soma other Magistrate for the Sub-divisional Officer:

“Draw up proceedings against the accused to show cause, if any, why he should not execute a bond of Rs. 5,000 with two sureties of Rs. 2,500 each to keep the peace for a period of one year as ordered by the S.D.O on 18th August 1948. The proceedings and notice should be served by the Superintendent, Sub-Jail. Cause to be shown by 18th October.”

26. On 15th October, Mr. Jha transfers the proceeding to Mr. Darda for disposal. On 18th October she order is “record received. Accused present. He is to remain on the same bail as before. Summon P.Ws Put up on 12th November” (apparently the previous order-sheet had not been perused or this could not have been written). On 18th November, Mr. Darda having been transferred, the case was withdrawn to the general file, and on 10th December it is transferred to Mr. S.S.A Nazir for disposal. In that Court it is still pending.

27. With reference to the orders quoted above dated 18th August and 30th September, it is interesting to refer to the order-sheet of the other proceedings under s. 107 pending against Ram Prasad Mandal. In that case the order-sheet of 20th August shows that Ram Prasad Mandal, who was on bail, had failed to appear, but had filed a petition showing cause for his absence. Non-bailable warrant of arrest was issued against him and notice was issued to the bailor to show cause why the bail bond should not be forfeited. But on the next date, 13th September, Ram Prasad Mandal was present, and the petition filed by him showing Cause for his absence on the previous date was accepted, and he was again released on bail of Rs. 500. Apart from any question of the inefficiency of the Sub-divisional Magistrate's Bench Clerk, it seems extraordinary that the Sab-divisional Magistrate could have forgotten all about the other proceedings against the same person, made no enquiry as to what was going on in those proceedings, and yet does not hesitate to order an immediate arrest without any enquiry on a petition five months old. Nor do the prosecuting authorities apparently remember anything about the other case or remind the Sab-divisional Magistrate of it, and no enquiry ever seems to have been carried out to ascertain what had become of the police report of 21st May and whether such report had ever been sent at that time. The all round lack of efficiency in administration displayed is as remarkable as the impulsiveness of the orders passed.

28. Transfer in this case is asked for on the same grounds as those relied on in the other petition of Ram Prasad Mandal.

29. I now come to criminal Miscellaneous case No. 621. This is also an application for transfer. On 3rd April 1948 one Sifat Jha lodged a first information against two sons of Ram Prasad Mandal under s. 411, Penal Code, asserting that three buffaloes which he had lost 15 months previously, had been found with them. The accused, Nasib Mandal and Chalbai Mandal, were sent up in custody on 5th and applied foe bail. But they were remanded to hajat awaiting the first information report. On 9th the first information report was received. The bail application was then considered, apparently by some other Magistrate in the absence of the Sub-divisional Officer. This Magistrate recorded that from a perusal of the first information report it appeared that the cattle were stolen or were missing more than 15 months ago. “Let the accused be released on bail of Rs. 500 each.” On the date fixed, 5th May, the accused appeared, and meanwhile police final report “mistake of fact” had been received. Mr. Jha then recorded another very remarkable order:

“The complainant files a protest petition. Complainant examine on S.A Papers seen. Issue non-bailable warrant of arrest against the accused foe 24th May under S. 411. Ask the S.I to seize the buffaloes and to have them produced before me on 24th May 1948.”

30. Here is a case where the accused had already been released on bail because the theft alleged was a very state one. They have been released on bail, and they have appeared as required and are present before the Sub divisional Officer. The police have reported “mistake of fact.” In such circumstances the Sub-divisional Officer without any further enquiry on a mere perusal of the papers and completely ignoring the fact that the accused are both present, takes it upon himself to issue non-bailable warrants of arrest. He had no reason to apprehend that the accused would abscond. Even if it could be held that the course he took was justified, and I am afraid it cannot, still all he had to do was to cancel the bail bonds and commit the accused to hajat. Why issue a warrant of arrest? He has himself written in the order-sheet only five lines above that they are present. To call this lacking in efficiency, if nothing else, is to put it mildly.

31. Later the same day the accused's lawyer filed a petition protesting against the order just passed for issue of warrant of arrest. On this the Sub-Divisional Magistrate records this order:

“The orders passed on 28th April 1948, on the final report have not been brought on the order-sheet. (He refers to a note which he had made on the final report “enter mistake of fact.”) The order drafted by the Court A.S.I is incomplete. There is yet no order that the accused have been released from the bail granted by Mr. Nazir, on 9th April 1948 in my absence on tour nor that the bail order is cancelled. All concerned are warned. (It was he himself who had omitted to cancel the bail and who had issued a needless order for warrants of arrest.) The case against the accused is one under S. 411, Penal Code which is non-bailable in which warrant may issue in the first place according to law. The complainant's lawyer has argued that cattle theft in an agricultural country like ours is a very serious matter and that the accused will tamper with evidence if they would be left on bail. Accepting this argument, I cancel the bail of the accused and remand them to custody for 24th May 1948. Accused to be produced on 10th May 1948.”

32. He ignores the fact that this was a police case. The complainant had no further status once the police had taken it over, and the police had not asserted that there was any danger of the witnesses being tampered with.

33. The accused went up to the Sessions Judge, and they were released on bail by the learned Sessions Judge. Later the buffaloes and their three calves are produced, and Mr. Nazir in the absence of the Sub-Divisional Officer, orders that they shall be left with the accused on a surety of ss. 600 provisionally to be produced on the next date. On 19th June the accused and P.Ws are present, but the case is adjourned to 16th July. On 16th the accused Chulbai is present, but Nasib Lall Mandal is absent. Thereupon the Sub Divisional Officer orders

“His bail bond is cancelled. Let the bailor show cause, if any, by 16th August why distress warrant should not issue. Issue non-bailable warrant of arrest against Nasib Lall Mandal as also process under Ss. 87 and 88 for 16th August. Medical certificate disbelieved. Petition rejected.”

34. It is evident from this that the accused was not absent without explanation. He had filed a medical certificate, and his brother had appeared all right. It was the first day he had failed to appear. In the circumstances this order appears to me almost vindictive.

35. On the next date, a month later, the case was transferred to Mr. Darda for disposal. The Sub-Divisional Officer's order quoted above cancelling the bail bond and issuing warrant to arrest and ordering proceedings against the bail or was apparently ignored. On the next date 17th August, Nasib Lall was still absent. Bu the order was merely for the accused personi to bring the buffaloes on the next date, 16th September, and meanwhile to remain on the same bail as before. On 16th of September, both the accused appeared, and they were then ordered to give fresh bail of Rs. 1,000 each. On the next date, 6th October, they were again present, but the case was adjourned as the buffaloes had not been brought. On 28th October, Mr. Darda had been transferred. The case was withdrawn to the general file and transferred to Mr. Nazir for disposal. In Mr. Nazir's file the case is still pending. Not a single witness has yet been examined, though, as has been mentioned the case had been filed as far back as the 3rd of April.

36. Transfer is asked for on the same grounds as in the other cases.

37. I now come to Criminal Miscellaneous case No. 620. This is another petition for transfer by four persons of whom, one Jhari Lal Gope, is the son of Ram Prasad Mandal. On Slat May 1947, Mr. Bennett had lodged a first information against these persons under Ss. 147 and 325, Penal Code for severely assaulting him. The police submitted charge-sheet in this case. On 26th June and on 2nd July the case was transferred to Dr. Darda for disposal. The accused after appearance, were released on bail of Rs. 400 each. This case meandered on slowly until Mr. Darda was transferred, and on 28th October 1948, it was withdrawn to the general file and transferred to Mr. Nazir for disposal. On 20th November, for some reason not stated, it was withdrawn to the general file and transferred to Mr. P.K Banerji for disposal. Thus this case has been pending for about a year and a half. Transfer is asked for on the same grounds as in the other cases. The petitioners approached the District Magistrate with an application for transfer, but it was rejected.

38. At the time of the issue of the rules is these cases a rule was also issued on Babu Pan-cham Narain Singh, President of the local Thana Congress Committee, and upon Pundit Rajendra Misra, M.L.A to show cause why they should not be committed for contempt of Court in respect of their communications to the Sub-Divisional Magistrate which have been referred to. This forms the subject matter of Original criminal Miscellaneous No. 11 of 1948.

39. The first question for consideration is whether sufficient ground has been made out for transfer of these cases. In the course of stating the facts, I have commented upon certain of the orders, and I do not wish to repeat myself. There are, however, certain other features of the matter which call for comment. It will be noticed that of all the accusations against Ram Prasad Mandal and the members of his family only two have so far been judicially tested, and in both cases the allegations were not found established. The first is the criminal case brought by Bolat Mian, which ended in acquittal. The second is the allegations of Bolat Mian in his petition to Pundit Rajendra Misra, upon which that gentleman took it upon himself to say that the accused were most undesirable and should be suppressed, and should not have been out on bail. Those allegations were enquired into by the Magistrate, Mr. P.K Banerji, and found to be false and concocted. Despite these facts, the orders passed show that no opportunity was lost of sending Ram Prasad Mandal and his relatives to prison. This Court will always hesitate to ascribe a lack of judicial detachment and impartiality to any subordinate judicial officer. An officer so castigated must remain dumb. He can have no opportunity to reply, though his career may be adversely affected. To the allegations made against him by the party, he has of course the right of reply, and his reply will always be considered by the Court, as it has been in the present case. But against the comments of the Court, the officer can have no remedy, and the Court, therefore, will be careful to refrain from such comments unless absolutely constrained by the materials before it. In the circumstance I will confine myself to saying that some of the orders passed by the two Sub-Divisional Magistrates have left an unhappy impression on my mind. If this is the impression produced on my mind, what is likely to be the impression produced upon the minds of the petitioners? In the first proceeding, the first day when Ram Prasad Mandal is absent, he is described as absconding, and a non-bailable warrant of arrest as well as processes under ss. 87 and 88 are at once issued. Yet the order itself shows that he had filed a petition for time which was rejected, and this would appear to render it doubtful whether it was really a case of absconding. When Mr. Banerji reports that the accusations are false and concocted and the complainant should be dealt with under s. 211, no action at all is taken and though “vide order, sheet” is written, the matter is never-dealt with When several applications are made for quashing the proceedings under s. 107, as being based on materials which had already led to an acquittal, the same thing happens. The applications are never judicially dealt with, but simply filed. I have already commented on the fact that Ram Prasad Mandal is suddenly clapped into jail on materials five months old, nothing apparently having happened during the five months to justify that sudden decision. Later, while Ram Prasad Mandal has given security in one s. 107-case, and, as the Magistrate himself says, is coming to Supaul regularly in that connection, fresh non-bailable warrants of arrest with processes under ss. 87 and 88 are issued. In the cattle theft case, though the matter is a very state one, and the Police have reported “mistake of fact”, and the accused have been regularly attending upon bail, they are suddenly cast into hajat, apparently on little more than the original state-meat of the complainant and a protest petition, without any further enquiry. After they have been released on bail by the Sessions Judge, on the first occasion one accused absents himself, filing a medical certificate, that certificate is summarily rejected, and non-bailable warrant of arrest together with processes under Ss. 87 and 88 are forthwith issued.

40. All this has to be considered against the background that two influential local politicians had taken it upon themselves to side violently against Ram Prasad Mandal and his relatives, and had taken steps to impress their views upon the Sub-Divisional Magistrates concerned. Pundit Rajendra Misra definitely told the Sub-Divisional Magistrate that he should not have allowed these people bail, and that they should be kept in custody, and his injunction was in effect obeyed, since immediately after the bail bonds were sent to the local Police for verification (it is frequently done immediately by the Court Nazir), and the accused are at once remanded to hajat for ten days, and, as I have said, on subsequent occasions whenever an opportunity arises, they are again put into hajat. The improper observations of Babu Pancham Narain Singh with regard to a pending case, instead of being objected to by the Sub-Divisional Magistrate, are expressly referred to and relied upon in the order-sheet.

“It is obvious”, says the Sub-Divisional Magistrate, “from these petitions and the report of the Thaua Congress Committee that Ram Prasad Mandal has now become so violent that a serious breach of the peace may be apprehended at any moment.”

41. An interim bond is called for, and he is immediately committed to hajat in reliance, in part at least, upon these observations of Babu Pancham Narain Singh, President of the local Thana Congress Committee.

42. Lastly, it does seem that there is some distant relationship between Pundit Rajendra Misra, this influential local gentleman, and either or both of the Sub-Divisional Magistrates concerned, since Mr. Jha's reply is that “the sub-division being situated in Mithila, some relationship or the other with every Maithila officer, who happens to be posted in the area can safely be attributed to this gentleman”.

43. As has been be often said, it is not only necessary that justice shall be done; it is also necessary that it should be plain to all, including those proceeded against, that it is being done. In considering a transfer application, the question whether there is bias on the part of the Magistrate is not alone material. It is squally material to consider whether anything has happened which may create in the mind of the accused an impression that the Court is not wholly impartial and disinterested. When that aspect of the matter is considered in connection with the present applications, there can. In my judgment, be only one answer. The impression upon the minds of the petitioners must be that influential local politicians, possibly distantly related to the Magistrates, have taken aides against them and are using their influence against them, and that the Sub-Divisional Magistrate have to Borne extent at least responded to that influence; and, such an impression having been created, the various orders passed subsequent to the communications from the two gentlemen in question can have done nothing to remove that impression.

44. It is true the Sub-Divisional Officer, like all Sub-Divisional Officers, is in a difficult and invidious position. Besides his judicial functions, he discharges also executive functions. He is the person primarily responsible for the peace of his Sub-division. He has, therefore, in the course of his duties frequently to divide himself into two separate water-tight compartments — a feat difficult of accomplishment. That is the fault of the present system where under judicial and executive functions are combined in the same individual. The difficulty cannot be avoided until the system is changed and the two functions in question are completely separated. The existence of this difficulty, however, while it may occasion the sympathy of the High Court, cannot be regarded by it as justifying a whittling down of the principle which it has always enforced, and always will enforce so long as it has the power to do so, namely, that in the disposal of judicial cases the officer presiding over the trial must show himself completely disinterested in the result, and completely free from the influence of anything but the evidence in the case. However difficult of accomplishment that may some times be in the case of an officer combining judicial and executive functions, the High Court must never the less insist upon its enforcement, for in this way alone can public confidence I in the judiciary be maintained and the pure administration of justice be secured.

45. It is necessary to observe—and I wish to emphasis this—that in the present cases there is nothing whatever against the Magistrates in whose Courts the case are now pending. Par from it, against them there are not even any allegations. Nevertheless, here again, we have to regard the matter from the point of view of the accused persons. These Magistrates are in direct administrative subordination to the Sub-divisional Officer. Unfortunately there have been numerous instances recently where Magistrates seem to have regarded themselves as little more than administrative subordinates bound to carry out blindly the directions of their superiors. Reference to such instances have been made in several recent judgments of this Court, and these judgments have received wide publicity. The petitioners, therefore, may understandably feel some lack of confidence in all the subordinate Magistrates of the sub-division, if they suspect the disinterestedness of the Sub-divisional Officer. This apprehension of theirs, whether or not it has any factual basis, must be taken into account by the High Court.

46. With regard to the prayer in Criminal Miscellaneous Case No. 622 for quashing the proceedings the position is that there are no materials before me upon which I can determine whether the materials upon which the proceedings under S. 107 are based are confined to those which formed the subject-matter of the Criminal case which ended in acquittal. It has been suggested on behalf of the Crown that this is not the case. In the circumstances I do not consider that the proceedings should be quashed at this stage.

47. I am, however, of opinion that it is desirable that these cases should not be tried in Supaul. Madhipura is not very much farther from Dewanganj than is Supaul, and I would accordingly make the rules absolute and transfer all these cases to the Sub-divisional Magistrate, Madhipura, for disposal by him or by any Magistrates subordinate to him whom he may select. It is needless to add that these cases have already been pending for too long. They must be given, priority and be promptly concluded.

48. I now come to the rules for contempt. Pandit Rajendra Misra at the first hearing tendered an apology for the contempt, if any. This apology, however, was not unconditional. An attempt was also made to justify his action, and it has been argued on his behalf that it does not constitute contempt of Court. I shall come to that presently. It is necessary to make one thing clear before I go further. As I have already said, the Sub-divisional Magistrate has two separate functions and capacities. It is arguable that reports made to him and prayers for action in his executive capacity may not amount to contempt. It is unnecessary to examine that question because when he is in seisin of a case he has in regard to that case only one capacity. So far as that case is concerned, his executive functions must be considered as in abeyance. Any approach to him extra judicially in connection with that case is not permissible, however it may be motivated. It is an interference with his judicial discretion and amounts to a contempt. This point must be stressed because under the present system there is a possibility of misunderstanding, and there seems to be some public misunderstanding. This also is undoubtedly due to the present unfortunate system. Nevertheless, if the purity of judicial administration is to be maintained, os it must, the difficulty cannot be regarded as Ian excuse, and interference cannot be tolerated. Both in the case of Pandit Rajendra Misra and of Babu Pancham Narain Singh the communications are made with reference to cases actually pending at the time in the file of the Sub-divisional Magistrate concerned.

49. On behalf of Pandit Rajendra Misra, it has been pointed out that he is a Member of the Legislature for the locality. People bring their complaints to him and expect him to take action, and, if he does so, he is merely discharging his social duties. All this may be so. His action may have been perfectly bona fide. There is nothing upon which I would be justified in holding that it was not so. Nevertheless the fact remains that if he makes an extrajudicial communication with regard to a pending case to the Magistrate in whose file that case is pending, his action amounts to contempt, and he does so at his peril. It has been argued that he merely made a complaint to the officer authorised to receive complaints, and any member of the public is entitled to make a complaint with regard to any breach of the law which comes to his notice even if he himself is not personally concerned. This argument cannot be accepted for one moment. Complaints have to be made in the manner provided by law for that purpose by a judicial application properly made, and the complainant has to present himself for examination upon oath. The communication made by Pandit Rajendra Misra was not at all of this nature or made in such fashion. What this gentleman did was not to make a complaint of any breach of the law which had come to his notice. It was an expression of his opinion made in very strong language with regard to the character of persons involved at the time in criminal proceedings. He stated that they were most undesirable persons, that in his opinion they ought not to have been released on bail. Thereby he attempted to prejudice the result of the case; and not only that, he directly criticized the action of the Court in releasing those persons upon bail. His reference to bail shows that he knew he was making this communication with regard to a pending case. Quite apart from the interference with the course of justice involved, the danger of such ex parte expressions of opinion is well illustrated by the fast that when the allegations upon which Pandit Rajendra Misra had made these observations were investigated by a Magistrate, Mr. P.K Banerji, they were found to be false and concocted. If this sort of thing is not firmly put down by the High Court, the only result can be that the administration of justice will be brought into disrepute, if not contempt. Unfortunately there is a grave danger at present of that situation arising. The High Court has had to comment in a number of recent judgments upon interference of this kind. It is urged that the Magistrate did not himself treat the communication as a contempt, or resent it. That is one of the most unfortunate features of the matter, and shows to what a pass things have come. It in all the more necessary for the High Court to be vigilant. In the circumstances contempt of this kind cannot be passed over lightly. They must be severely dealt with to make an example, if for no other reason, so that it may be made clear to all that the High Courts will not tolerate any interference with the subordinate Courts of the kind displayed in this case. This sort of interference with Magistrates which, as I have said, has become too frequent, has got to stop, and there is only one way of stopping it.

50. After the first hearing, an adjournment had to be given as it was found that notice had not been served upon Babu Pancham Narain Singh. At the adjourned hearing Pandit Rajendra Misra changed his attitude, and both he and Babu Pancham Narain Singh have now admitted the contempt and submitted an unqualified apology. It is unnecessary to add much with regard to the contempt by Babu Pancham Narain Singh. What I have said already with regard to Pandit Rajendra Misra applies equally to his case. He also communicated with the Sub-divisional Magistrate with regard to a case pending in his file, and the contempt was equally gross. In the petitions of apology submitted by both gentlemen stress has been laid upon the endorsements made upon the communications forwarded to the Sub-divisional Magistrate. But it is necessary to point out that, while those observations aggravated the contempt, it would have amounted to contempt even to forward these communications without endorsement. As I have already said, a Magistrate trying a case must not be approached at all by any outside source. Nothing can be placed before a Magistrate in such circumstances except by a regular judicial application, and anything else is a contempt.

51. The only thing that remains to consider is whether the unqualified apologies of these two gentlemen can be accepted and the contempt condoned. It is argued that the present is a time of development and flux, so that people in the position of these gentlemen may be in some real uncertainty as to what is legitimate and what is not. This circumstance, however, makes it all the more necessary to deal with contempt firmly for it is now that the pattern is being set for the future development of the institutions of this country, and it in of fundamental importance that the foundations be laid straight and solid so that the structure being erected shall be stable. Any mistakes made now, any easy tolerance for what is wrong, may do incalculable future harm. I feel that the acceptance of these apologies might have the unfortunate effect of creating the impression that contempts of this sort, while theoretically to be condemned can easily be purged by an expression of regret, and the deterrent effect of the issue of rules like the present will be small. We have to think not only of these two gentlemen, but of the effect of what we do upon others tempted by their local political importance to interfere with the course of Justina, and I fear that at present they are many. As I have already said, interference of this sort has to be put a stop to here and now, once and for all, and only severe punishment can do it. If these gentlemen feel that they are being made a sacrifice, it may console them to reflect that it is upon a worthy altar.

52. I would find both Pandit Bajendra Misra and Babu Pancham Narain Singh guilty of gross contempt of the Court of the Sub-divisional Magistrate, Supaul, and I would impose upon each a fine of Rs. 500 with a direction that should these fines not be paid within one week of this judgment, they shall in default suffer one month's simple imprisonment each.

53. Agarwala, C.J:— I entirely agree. This case furnishes a clear example of the danger of interference with the administration of justice by persons ignorant of the law of evidence and the rules of procedure. In this case there was forced on the Magistrate's attention the opinion of two persons, who were not witnesses in the case, as to the character of one of the parties to the litigation. Had they been witnesses, their adverse opinion as to the character of the accused would have been, ruled out as inadmissible. If a person is aware of facts relevant, to a judicial enquiry which he considers should be brought to the notice of the Court, the proper procedure is to bring the facts to the notice of the Public Prosecutor and offer to give evidence so that his statements may be properly tested by cross-examination. It is contrary to all juridical notions that a person should be permitted to make damaging statements as to the character of an accused person, or as to his alleged activities, behind his back, and without affording him an opportunity to cross-examine the maker of the statements. A person who has not the courage to submit himself to cross, examination must not be permitted to influence the decision of the Court by ex parte statements.

R.G.D

54. Orders accordingly.