Malik, J.:— This is an application to transfer a case pending; in the court of Mr. J.H Zaidi, Second Additional District Magistrate of Allahabad, to the court of some other Magistrate competent to try the case.

The facts of the case briefly are that during the recent communal disturbances in Allahabad a man was stabbed on the Kamta Prasad. Kakkar Road at about seven in the morning of 5th November, 1946. The incident is alleged to have taken place near the house of one Mr. Kedar Nath, who is a mukhtar practising in the revenue courts. The applicants, Kailash Nath Agarwal and Amar Nath Agarwal, sons of Kedar Nath, were arrested in their house by Muhammad. Yakub; sub-inspector, about an hour after the incident. Two other persons were also arrested along with them. Kailash Nath Agarwal is a pleader practising in the district court, while Amar Nath Agarwal is an I.L.R student of the Allahabad University. They were taken to the Police Kotwali and then to the Colvin Hospital where the identification proceedings took place and were then lodged in the Malaka jail. It is alleged that a knife and a shirt were also taken into custody and were sent to the Chemical Examiner and Imperial Serologist, for examination, to find out if there were any marks of human blood on those articles.

The applicants were not released on bail and were kept in the Malaka jail on a charge under section 302 of the Indian Penal Code.

On the 8th November, 1946, the learned Magistrate, Mr. J.H Zaidi, went to the jail to hold an enquiry under Chapter XVIII of the Criminal Procedure Code before committing the applicants for trial to the court of session.

It is admitted that no information of that date or of the intention of the learned Magistrate to hold the enquiry on that date was given to the accused.

Kedar Nath had, however, heard some rumour that an enquiry may be held on that date and he had, therefore, gone to the jail when he found Mr. Zaidi there ready to hold an enquiry under Chapter XVIII of the Criminal Procedure Code, he filed an application praying for adjournment for two weeks on the ground that no information of the date was given to the accused or to any one on their behalf and they had, therefore, not engaged any lawyer and he wanted a little time to engage a lawyer. It was further mentioned that an application for copies of the first information report, the in try report, the statements under section 164 of the Criminal. Procedure Code and the dying declaration etc. had been filed on the 7th, but copies of the said statements had not till then been issued and that it would be, in the interest of justice, if the enquiry was held after the copies had been obtained.

The application was rejected by the learned Magistrate who passed the following order:

“The accused can get copies of the papers and file, them later, on. I will allow them. I am afraid the case cannot be postponed.”

Learned counsel in support of the application has made a point that the learned Magistrate did not apply his mind and did not realise that the copies were not being obtained for the purpose of being filed but for the purpose of proper, prosecution of the case. It is further urged that the learned Magistrate was bound to give proper facilities to the accused to obtain legal aid.

A further request being made to the learned Magistrate for a shorter adjournment to enable the accused to get legal aid, the learned Magistrate passed the following order:

“I can, however, do one thing. It is that I can allow as a special case to let the defence, counsel cross-examine the witnesses.”

The learned Magistrate then proceeded to record the examination-in-chief of the witnesses for the prosecution.

It is urged by learned counsel that by reason of the fact that the evidence of the prosecution witnessed was recorded in the absence of any lawyer on behalf of the accused, an examination of the statements of the witnesses would show that many matters which were not relevant were included in the statements of the witnesses. It is further alleged that improper questions were put in the examination-in-chief and the evidence was not properly recorded as the Magistrate translated the statements in his own words and then dictated the same to the stenographer and to the peshkar. I have not allowed the learned counsel to go further in this matter, nor have I examined the statements for myself, as I consider this is not the stage at which I should express any opinion on the merits.

After the learned Magistrate had recorded the evidence-in-chief of two witnesses for the prosecution, Abdul Rauf and Shafaat Ahmad, a third witness, Mr. Saidullah, Magistrate, was to be produced. Some objection was taken by the accused to the relevancy of the evidence of the third witness, and on the Magistrate asking them to substantiate the same, a short adjournment of three days was given by him at the request of the accused.

Mr. A.P Pandey, a senior Advocate practising in this Court, was engaged on behalf of the defence and he states that he found it impossible to prepare the case for the defence in the absence of the papers, copies of which had been applied for on the 7th November. He, however, attended the jail on the 12th morning and he has made a grievance of the fact that he remained for some time outside the gate and then for about forty five minutes between the two gates before he could enter the room inside the jail where the enquiry was to be held. I may mention here that under the order of the District Magistrate all enquiries and trials held by Magistrates in Cases arising out of the communal disturbances were to be held inside the jail.

Mr. Pandey has made a further grievance of the fact that in the room where the enquiry was to be held, the arrangement was that there were three chairs, one for the learned Magistrate, another for the Court Inspector and a third for the Reader with a table between them. There was no chair and no table for the use of the lawyers' for the accused. There were, I was told, at two ends of the room running along the walls raised platforms which were meant for the use of the members of the bar and any member of the public who may happen to have been admitted into that room. A point is made of this arrangement also, and it is urged that not only it is humiliating that the members of the bar should be treated in the manner mentioned above but also that it is impossible to expect that they would be able to do their duty under those conditions and in such an atmosphere.

On the 12th November, when Mr. Pandey appeared he again filed an application for adjournment, and one of the points raised by him was that though he had applied for copies of the relevant papers as far back as the 7th November, the copies had not till that date been issued. It is said that the Prosecuting Inspector at this stage produced the papers from his own custody and filed them before the Magistrate. The Magistrate thereupon insisted that as the papers were there, learned counsel may look at them and cross-examine the witnesses. He further agreed that he would record the evidence of formal witnesses on that date and that of material witnesses on succeeding dates and that he would examine the Civil Surgeon on the 15th November, Mr. Pandey Objected to that procedure and further to the examination of the Civil Surgeon on the 15th on the ground that the knife, with which the offence is said to have been committed, had been sent, on the 11th November, to the Chemical Examiner and he wanted the report of the Chemical Examiner and also the knife to show it to the Civil Surgeon at the time of his own examination and to find out whether the injury of the nature mentioned could have been caused by that knife. The learned Magistrate refused the request for adjournment and their an application was filed under section 526 of the Criminal Procedure Code for two weeks time to enable the accused to move the High Court to transfer the case to some other court. The learned Magistrate then passed the following order:

“Every material document is on the record and copies of it can be given very soon. It is not necessary to possess the copies of the documents for the purposes of cross-examining all the accused (witnesses) and I gave assurance that I will not take up the examination of the witnesses for whose cross-examination the copies of the documents will be necessary unless the counsel of the accused gets the copies. In spite of this the application which was typed and ready already has been moved. This is only another method of getting time. But since it is necessary to adjourn the case under section 526 I will adjourn it for two weeks provided that bond for Rs. 200 is executed as laid down in section 526, clause 8.”

The bonds were executed and the case was adjourhed to the 26th November.

The accused then moved the learned District Magistrate for the transfer of the case. The learned District Magistrate rejected the transfer application by an order dated the 19th November While dealing with this application the learned Magistrate observed:

“The only real question is whether the proceedings are being” conducted in such a manner that the case of the accused is prejudiced or that they have valid grounds to apprehend an unfair trial. In the first place there are standing orders that all cases of communal character are to be tried within the jail premises, partly, because police escorts are not available and secondly because it is not desirable in view of the present tension that incidents of communal character should be related in open court.”

He further mentioned that the proceedings before the Magistrate were merely of the nature of a preliminary enquiry and pointed out that the Magistrate had recently been posted to this district and there could, therefore, be no question of his being prejudiced against the accused.

An application, for transfer was then moved, in this Court under section 526 of the Criminal Procedure Code on the 22nd November, 1946. The main grounds on which the transfer is sought are that the manner in which the enquiry is being conducted is bound to prejudice the case of the accused. The contentions are that the enquiry on the 8th should not have, been started without giving previous notice to the accused so that they may have proper legal aid and they should not have been forced to enter on their defence without any legal assistance. The second ground is that it was impossible for the members of the bar to do justice to the case in the surroundings in which they Were placed. The next ground is that the accused had a right to an open enquiry in a court and not an enquiry in camera inside the jail where the public had no right to enter. As against the learned Magistrate it is urged that the learned Magistrate was not justified in recording the examination-in-chief in the absence of defence counsel, that the statements were not properly, recorded, that the copies of the documents had not been given to the accused and that it was not possible, therefore, for the lawyers appearing for the accused to cross-examine the witnesses properly. That although the material exhibits were sent to the Chemical Examiner on the 11th November, and the report was not likely to be received before the 15th, the Magistrate was in a great hurry to finish the case and insisted on fixing the 15th November for the examination, of the Civil Surgeon and remarked that he wanted to finish the enquiry by the 16th.

These are some of the main grounds on which the transfer is sought from the court of Mr. Zaidi to the court of some other Magistrate of competent jurisdiction.

As regards the first point we have the provisions of section 340 of the Criminal Procedure Code, under which “any person accused of an offence before a criminal court or against whom proceedings are instituted under this Code in any such court, may of right be defended by a pleader”. There can be no doubt that the proceedings under chapter XVIII are in the nature of judicial proceedings in a criminal court and the applicants were persons who were accused of an offence and they were entitled, as a matter of right, to be defended by a pleader. The learned Magistrate was, therefore, bound to give to the accused sufficient facility to be represented by a lawyer, specially as they were in custody from the time that they had been arrested and accused of the offence. In In re Evans(1) Mr. Justice Fawcett, held that section 340 of the Criminal Procedure, Code not only contemplates that the accused should be at liberty to be defended by a pleader at the time the proceedings are actually going on, but also implies that he should have a reasonable opportunity if in custody, of getting into communication with his legal adviser for the purpose of preparing his defence, and Mr. Justice Madgavkar observed:

“If the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely, and fairly, before the court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice—advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very State, which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance.”

I am satisfied from the explanation given by the learned Magistrate, that he was not inspired by any unfair motive, but he did, to my mind, show far too much haste. The learned Magistrate, did not apparently realise the importance from the point of view of the accused, of the recording of his examination-in-chief of the witnesses for the prosecution. I have already said that I have not examined the evidence of the witnesses for I consider that it would be improper at this stage to go into the question whether the evidence was properly recorded, but, to my mind, the examination-in-chief and the manner in which the evidence is recorded are just as important, at times more so, as the cross-examination, and the learned Magistrate erred in deciding to record the examination-in-chief of the witnesses without giving an opportunity to the accused to get adequate legal assistance. [See Mannargar v. King-Emperor(2)]. The accused had been arrested on the 5th and had been kept in custody ever since. They had not been informed that the enquiry would begin on the 8th. Their application for copies of various documents which would be necessary for any lawyer to go through and consider before he is able to assist the accused in a proper defence had not been obtained. On the 8th the Magistrate recorded the evidence of the most important witnesses for the prosecution when there was no lawyer who had been engaged to look after the interest of the accused. In a similar case before Mackney, J. in U Po Mya v. The King the learned Judge observed.

“The Magistrate apparently did not realise that a pleader defending a person has to do more than go through the record. He has to go through all the prosecution evidence, find out what defence may best be set up and what means there exist for putting up that defence. It seems to me that in a case of this nature certainly more than a day would be required for even the most skilful and able lawyers in order to decide this matter.”

The learned Magistrate, if he had any experience at the bar, would not have considered it enough that on the 12th November, the Prosecuting Inspector had taken the relevant papers out of his pocket and had put them on the record. He would have realised that it was necessary for Mr. Pandey to study those documents, question his clients and get other information before he could be ready to cross-examine the witnesses. The same learned Judge in the same case observed:

“It is not only the state which is to be considered in these matters; it is the adminstration of justice. Even if considerable expense is incurred by the State in the proper administration of justice yet that expense must be incurred and injustice must not be perpetrated simply because justice is expensive.”

On that sole ground the learned judge, who belonged to the Indian Civil Service and must, therefore, have had considerable experience of criminal work, transferred the case from the court of the Magistrate. I would have followed the decision quoted by me above and transferred the case on that sole ground, but in this case I regret to say there are some other grounds which I consider equally important.

I cannot lightly brush aside the complaint that was made to me, while I was receiving applications, by more than one senior counsel, practising in this Court, of the treatment that they had received while they were engaged to do their duty in defending their clients. Every one of them complained that there was inordinate amount of delay outside the jail and inside the jail the learned Magistrate failed to realise that he must, as far as possible, try to reproduce the atmosphere of a court room. The learned Magistrate may have been compelled to hold his enquiry inside the jail by reason of the standing order mentioned by the District Magistrate in his order rejecting the application for transfer. I can find no provision in the Criminal Procedure Code which compels a Magistrate to hold his court in the usual court room. Section 352 of the. Criminal Procedure Code probably contemplates that a Magistrate can hold his court anywhere he likes. The standing order cannot bind the learned Magistrate in his judicial capacity, but as both the executive and the judicial functions are not separated, the executive order directing the Magistrate to hold his court inside the jail is probably binding on him. But the learned Magistrate, wherever he may be compelled to sit by executive orders, is bound by the provisions of section 352 of the Criminal Procedure Code and he must realise that the place where the trial is held must be something like an open court to which the public generally may have access so far as the same can conveniently contain them. The discretion to exclude the public generally or any particular person at any stage of any enquiry or trial must be a judicial discretion exercised by him. I am laying emphasis on this point because, to my mind, if the Magistrate is compelled to hold a trial in jail, then the jail must become something like an open court where any member of the public may have a right of access, if the room in which the trial is being held can conveniently contain him and unless the learned Magistrate, for reasons which he must, to my mind, record, decides to exclude the public or any, particular person in a jail the Magistrate must himself he subject to the jail rules and subject to the authority of the officer in charge of the jail, and though in theory, if the public is given free access, I can see no objection to a trial being held in jail, in practice I do not think it is possible, unless the jail rules make provision for such enquiries or trials in jail when any member of the public may have a right to attend.

In the case of Sahai Singh v. Emperor where the trial was held in jail, it was argued that it was vitiated on that account. The learned Judge observed:

“There is nothing to show that admittance was refused to any one who desired it or that the prisoners were unable to communicate with their friends or counsel. No doubt it is difficult to get counsel to appear in the jail and for that reason if for no other such trials are usually undesirable, but in this case the executive authorities were of the opinion that it would be unsafe to hold the trial elsewhere.”

I am, however, of the opinion, with great respect to the learned Judge, that it is not necessary for the accused to prove that any person who actually desired admittance was refused. It is for the prosecution to satisfy the court that any person who desired to attend could do so and there was no prohibition against his admittance.

It is well established in England that every court of justice is open to every subject of the King and that a right to an open trial, is one of the cherished rights of the subject. It is not necessary for me to give a historical survey of how the right has grown, but the point has now been settled by a decision of the House of Lords in Scott v. Scott where it was emphasised that even in a case where the parties had agreed that a case may be heard in camera, a Judge would have no right to exclude the public, except in some special class of cases, unless the parties agreed to appoint him an arbitrator and to hear the case as such. Those special cases are: wardship and relation between the guardian, and ward, and secondly the care and treatment of lunatics. A third ground was mentioned by Viscount Haldane, L.C, that if it was strictly necessary for the attainment of justice and the; court was satisfied that by nothing short of the exclusion of the public it is possible to do justice, can a Judge decide to sit in camera. Even this ground was not accepted by the Earl of Halsbury who thought that this would be leaving the matter too much to the discretion of individual judges, who might think, that in their view the paramount object of the administration of justice could not be attained without a secret hearing. It is not necessary for me to go into this question further as, unlike the law in England, the Criminal Procedure Code in India gives a criminal court a right to exclude the public generally or any particular person, but this being an exception to a very well settled rule, to my mind, the Magistrate must record his reasons for doing so if he decides to exclude either the public or a section of the public; and it must be understood that it is a matter within the judicial discretion of the Magistrate himself and not a matter about which he can be controlled by executive orders.

Though, therefore, I am of the opinion that it was not illegal for the learned Magistrate to hold the enquiry in jail or anywhere else, the learned Magistrate must realise that the place where the enquiry is held must be deemed to be an open court where public as such have a right to attend and that such right may be controlled in a proper case on special grounds by the court and not by the jail rules or by the officer in charge of the jail. If the Magistrate cannot have the absolute right to regulate the proceedings at the place where he is holding the trial, he ought not to hold the trial or the enquiry at such a place.

I consider it a matter of equal importance that though a Magistrate may hold his enquiry anywhere, he owes a duty to see that proper facilities are given to the members of the bar. No lawyer can do his duty to his client, nor can a Magistrate discharge his duties as such, in a room where the Magistrate sits in one corner with the Prosecuting Inspector on one side and the Reader on the other, all the three of them having chairs, with members of the bar standing in front as suppliants for his favours. I want to make it perfectly clear that, in my judgment, it is impossible to administer justice properly without legal aid, and in that sense the members of the bar probably do as important a work as Judges themselves and, therefore, for the proper administration of justice it is necessary that the members of the bar should get adequate facilities and proper treatment. No accused can have confidence in a Magistrate who treats his counsel in the manner in which Mr. A.P Pandey was treated, and I am surprised that any Magistrate should have the discourtesy to keep a member of the bar standing in his court while he allows a chair to the Prosecuting Inspector and to his Reader. I do not want to say anything further on this point as the learned Government Advocate has assured me that such incidents would not occur in future. I hope, incidents like this would not again come to the notice of this Court and the Magistrates would realise that, just as the members of the bar owe a duty to show proper respect to the Bench, the Bench has an equal duty to be courteous and considerate to the bar.

Having, therefore, carefully considered this matter; I am of the opinion that there was enough ground for apprehension in the mind of the accused that they would not receive a fair trial in the court of the learned Magistrate. I, therefore, direct that the case be transferred from the court of Mr. J.H Zaidi, Magistrate, first class, to some other court of competent jurisdiction.