1. This is an application for the transfer of a criminal case pending in the District of Monghyr.
2. The petitioner is a Sub-Inspector of Thana Lakhiserai in the District of Monghyr. The complainant, Mr. Carroll, is the Circle Officer of the Khaira estate. There has been some trouble with the tenants of that estate for some time. Mr. Carroll went to the District Magistrate in his Chambers on 1st May in the morning about 9 a.m and made certain verbal complaints against the Sub-Inspector having demanded a bribe from him for settling his dispute with the tenants; in other words, for the purpose of subduing the tenants by such means as the Sub-Inspector thought necessary. The District Magistrate at once sent for the Sub-Inspector, who was then attending a case in his charge in the Court of another Magistrate, Mr. Sheo Nandan Prasad Singh, and then recorded the statement of Mr. Carroll on oath. The District Magistrate then passed the following order:
“Statement of complainant recorded in presence of the accused. It discloses a prima facie case under S. 161, I.P.C, against the accused. I direct full inquiry to be made into the complaint by Deputy Superintendent of Police, Mr. Porteous and a report to be submitted by 15th May, 1920. The accused being present is placed under arrest and is releassd on bail of Rs. 500 in one surety of that amount.”
3. There were some difficulties about the petitioner obtaining copies of the evidence collected and the report submitted by Mr. Porteous. We are not at all now concerned with that portion of the case.
4. The case was ultimately transferred to the file of Banke Behary Singh, Deputy Magistrate, who had just then joined the district. The petitioner had some difficulty with that Magistrate also in respect of obtaining copies of the necessary papers. He took time in order to move this Court for the transfer of the case, and has now done so.
5. The District Magistrate has shown cause, which is supported by the learned Government Advocate. I have no hesitation in accepting the assurance given by the District Magistrate that he treated the petitioner with scrupulous fairness all through, nor have I to say anything against the Deputy Magistrate, Mr. Bankey Behari Singh, who has now been entrusted with the trial of the petitioner; probably, as observed by the District Magistrate he having newly come to the district, has no prepossession about the dispute, which led to the case.
6. On the other hand, I cannot disregard the circumstances surrounding the case which, to my mind, might raise a reasonable apprehension in the mind of the accused that he will not obtain a fair trial in his case in the District of Monghyr.
7. The first and the foremost ground is the unwarrantable procedure adopted by the District Magistrate in arresting the accused forthwith upon the statement of Mr. Carroll, when as the District Magistrate himself says:
“It was not clear…. whether there was sufficient evidence to justify trial of the accused; inquiry was accordingly ordered under Section 202 of the Cr PC”
8. The Magistrate had no jurisdiction to deal with the accused, unless and until he was, upon the inquiry held by Mr. Porteous, satisfied that a process should issue against the accused. So, before the report, of Mr. Porteous was received and duly considered by the Magistrate, he had no jurisdiction to arrest the accused. The powers of arrest to a Magistrate are given by Ss. 64 and 65 of the Cole. The former has obviously no application, for the offence was not committed in the presence of the Magistrate. The latter has no application, because the Magistrate at that time was not competent to issue a warrant. As a matter of fact, the Magistrate even if he was satisfied that the accused should be placed upon trial and that process should issue, was only competent to issue summons against the accused in the first instance. An offence under S. 161, I.P.C, of which the accused has been charged, is shown in Col. 4 of the schedule to be one, in which the Magistrate can issue a summons only in the first instance. Whatever good motive the Magistrate might have in the interest of justice to arrest the accused, he acted without jurisdiction. The fact that the accused was actually before the District Magistrate having been called by him, so that he might know what charge was being made against him, or the fact that the District Magistrate thought that there was a prima facie case against the accused, did give him any right to arrest the accused in contravention of the Code unless the District Magistrate had actually upon the complaint of Mr. Carroll directed that the accused be put on his trial without any further inquiry: vide Ss. 200 to 204. As a matter of fact had the accused not been it Sub-Inspector under the District Magistrate the District Magistrate would have had no jurisdiction to call the accused, unless the District Magistrate had decided to issue process against him, either upon the complaint of Mr. Carroll, or upon the report of Mr. Porteous. The Sub-Inspector might very well think that an advantage was taken of his subordination to the District Magistrate and that the District, Magistrate was prejudiced against him. Again an ordinary man would not have dared to go to the District Magistrate in his Chambers and talk to him of the case, and as a matter of fact Mr. Carroll himself said that he went there only with a view to take the advice of the District Magistrate and to lay a trap for the Sub-Inspector. Ordinarily, a complaint is not lodged before the District Magistrate. The unusual incidents in the case whereby the District Magistrate took cognizance of the offence might have aggravated the accused's suspicion of prejudice being in the mind of the Magistrate against him. The suspicion may or may not be correct; all that is necessary is that there must be reasonable ground for suspicion and the aforesaid grounds are sufficient for the purpose. It has been in several cases held that when an unusual amount of bail is demanded, the accused is entitled to reasonably suspect prejudice against him and to ask for a transfer. The present case is a stronger one.
9. The grievance of the accused is against the Head of the District. His faith in the Subordinate Magistrate has also therefore been shaken.
10. Therefore whether the District Magistrate in his mind was fairly inclined towards the accused is immaterial. It is equally immaterial that Mr. Banke Behary Singh, who is now in charge of the case, has no prejudice against the accused.
11. The third circumstance is that almost all the Magistrates with a few exceptions, may probably figure in this case as witnesses, either for the prosecution or for the defence. The evidence recorded by Mr. Porteous and the report submitted by him clearly show this. Mr. Mirza, the Sub-divisional Officer of Jamui, is a necessary witness; so are Mr. Majid and Mr. Sheonandan Prasad Sinha. The original report of Mr. Porteous, being the result of an enquiry under S. 202 of the Code, is not a police paper and should have been placed on the record. It is however reported by the District Magistrate to be missing.
12. I need not refer to the case of the accused so far as it is disclosed at present. His case is that he has been the victim of a conspiracy among certain persons in the Monghyr District, and he suspects Mr. Carroll on account of the attitude taken by the police and the accused Sub-Inspector in the cases against the tenants of the Khair a estate. He therefore suspects that he will not have a fair trial of his case in the district. If there is any case, in which a transfer is necessitated, this is one. Some of the aforesaid grounds may not be deemed to be good grounds in themselves, but the cumulative effect of them and the circumstances of the case are sufficient to entitle the accused to have his case tried in another district. The report of the Manistrate, the inquiry held by Mr. Porteous and the orders passed on different dates are ample justification for the order, which I now make in the case, that the case be transferred from the District of Monghyr to Patna, as is suggested by the District Magistrate himself in case of the transfer of the case being ordered.
13. The case is accordingly transferred to the District Magistrate of Patna, who will have it tried by a competent Magistrate under him.
V.S/R.K
14. Application allowed.