Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Narendra Kumar Bose for the Petitioners.
Judges
  • Mitra
  • Holmwood, JJ.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Narendra Kumar Bose for the Petitioners.
Judges
  • Mitra
  • Holmwood, JJ.
See more information ...
Smart Summary

Opinion Summary — Mitra, J. (with Holmwood, J.)

Factual and Procedural Background

This rule was issued calling upon the District Magistrate of Faridpur and the complainant, Rajjab Ali, to show cause why the case pending in the Court of the Sub-divisional Magistrate (SDM) of Madaripur against the petitioners should not be transferred for trial to some other Magistrate in the district competent to try it.

The complainant did not appear to show cause. The Sub-divisional Magistrate submitted an explanation through the District Magistrate. The District Magistrate informed the Court that transferring the trial elsewhere would be extremely inconvenient and expensive for the complainant and his witnesses (particularly in the sowing season) and expressed fear that transfer might induce an amicable settlement that would defeat justice.

The petitioners sought transfer on several grounds, including allegations that the SDM had taken an active part in the police investigation, had shown bias against the petitioners, had displayed an anxiety for their conviction, and had refused immediately to postpone the hearing when asked for time to apply for transfer to the High Court.

Legal Issues Presented

  1. Whether the Sub-divisional Magistrate took an active part in the police investigation or exhibited bias/prejudice against the accused such as to warrant transfer of the trial.
  2. Whether, under the statutory scheme and established case law (including the meaning of sec. 526(8)), a Magistrate is obliged to grant postponement to enable an accused to apply to a higher Court for transfer and whether refusal to postpone (or taking evidence after such an application) vitiates subsequent proceedings.
  3. Whether the facts and circumstances in this case create a reasonable apprehension in the minds of the accused that they may not obtain a fair and impartial trial before the SDM, thereby requiring transfer in the interests of justice.

Arguments of the Parties

Petitioners' Arguments

  • The Sub-divisional Magistrate took an active part in the police investigation of the case.
  • The SDM entertained a bias against the petitioners regarding their alleged commission of offences.
  • The SDM displayed, by words and conduct, an anxiety for the conviction of the petitioners.
  • The SDM erred in not immediately postponing the hearing when the petitioners asked for time to move the Court for a transfer.

Sub-divisional Magistrate / District Magistrate (Responses / Explanations)

  • The SDM emphatically denied the allegation that the complainant and witnesses had an interview with him at his private residence; the Court found this allegation unfounded because no source of information was disclosed for it.
  • The SDM explained he went to the Madaripur school only after being informed that the police investigation had concluded, and that he went there to prevent a breach of the peace (denying that he was present during the police investigation itself).
  • The SDM initially refused the application for postponement on the view that proceedings could go on until the accused were called for their defence; he nevertheless caused the examination of three prosecution witnesses on the same day before subsequently granting a postponement to enable an application for transfer, because he apprehended that the case might be amicably settled or that witnesses might become unavailable or untruthful.
  • The District Magistrate communicated practical difficulties and inconvenience to the complainant and witnesses should the case be tried elsewhere, and expressed concern that transfer might lead to an amicable settlement defeating justice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Queen-Empress v. Gayitri Prosunno Ghosal It is obligatory on a Magistrate to grant an application for postponement to enable a party to apply to a higher Court for transfer; refusal to grant such an application is illegal and subsequent proceedings set aside. The Court treated this as a foundational authority establishing the duty to postpone; it observed the earlier decision set aside subsequent proceedings where postponement was refused.
Surat Lal Chowdhry v. The Emperor and Kishori Gir v. Ram Narayan Gir Followed the rule in Queen-Empress and treated it as settled law that a Magistrate is bound to postpone hearing to enable an application for transfer; refusal renders subsequent proceedings voidable if not void. The Court regarded these decisions as confirming the obligation to grant postponement (so far as this Court is concerned) and relied on them in framing the duty of Magistrates when an application for transfer is indicated.
Dhone Kristo v. King-Emperor Proceedings may be allowed to go on until a stage is reached from which further proceedings would prejudice the accused; interpretation of sec. 526(8) supports continuation up to that stage. The Court cited this authority (Stevens and Harington, JJ.) to support the proposition that the SDM did not commit an error of law in recording depositions of three witnesses before granting the adjournment.
Joharuddin Sarkar v. The Emperor Same general view as Dhone Kristo — proceedings may proceed until the accused is called for defence; relevancy to sec. 526(8). Cited (Pratt and Handley, JJ.) alongside Dhone Kristo; used to justify that recording some evidence before adjournment was not an error of law.
Wilson; Dupeyron v. Driver; Farzand Ali v. Hanuman Pershad; Kishori Gir v. Ram Narayan Gir; Khetu Panday v. Mohim Nath Bishi; Girish Chandra v. Chandra Moni; Nittyanund v. King-Emperor Series of authorities holding that the state of mind of the accused must be considered and that incidents creating a reasonable apprehension of an unfair trial are valid grounds for transfer, even if the Judge's conduct was proper. The Court relied on this body of cases to articulate and apply the principle that a reasonable apprehension in the mind of the accused that he may not receive a fair trial is a proper basis for transfer; the Court applied that test to the SDM's words and acts.
Narain Chandra v. The Howrah Municipality Discusses what constitutes a "reasonable apprehension"; Stephen, J., observed that the question must be decided by reference to the minds of the Court, not merely the mind of the accused; Brett, J.'s observations were also engaged. The Court cited this decision to support the approach that the Court should place itself in the position of the accused and consider surrounding circumstances when judging the reasonableness of the apprehension.
Narain Chunder Bannerjee v. The Howrah Municipality Authority relied on for the views of Brett, J., as to apprehension and its assessment (referenced by Holmwood, J.). Holmwood, J., expressly concurred with what he understood to be Brett, J.'s views in this case and used it in his reasoning about the proper approach to complaints of uneasiness in the accused's mind.

Court's Reasoning and Analysis

The Court proceeded through a sequence of factual findings and legal analysis expressly grounded in the record and cited authorities:

  1. Factual assessment: The Court examined the petition's allegations and the SDM's explanation. It found one allegation (an interview at the SDM's private residence) unsupported by a disclosed source of information and the SDM's denial rendered that particular allegation unfounded.
  2. Other factual assertions in the petition were, according to the Court, garbled or misleading because the petition did not disclose all relevant facts and circumstances. Specifically, the allegation that the SDM was present during the police investigation was contradicted by the SDM's statement that he arrived after the investigation to prevent a breach of the peace.
  3. Legal question on postponement: The Court considered sec. 526(8) (the latter part of the sub-section) which requires that courts exercise postponement/adjournment powers so as to afford reasonable time for an application for transfer to be made and an order obtained before the accused is called for his defence. The statutory object is to allow proceedings to continue only until the stage where further steps would prejudice the accused's defence.
  4. Precedential application: The Court relied on Dhone Kristo v. King-Emperor and Joharuddin Sarkar v. The Emperor to conclude that it was not an error of law for the SDM to record the depositions of three prosecution witnesses before granting adjournment, because proceedings may proceed up to the stage before the accused are called for defence.
  5. Disapproval of the practice: Although the Court held the recording of the three witnesses was legally permissible, it expressed the view that it is generally undesirable to continue proceedings after an application for postponement to enable a transfer. The Court explained that evidence taken after such an application becomes practically useless if a transfer is later ordered and that, unless the case is exceptional, a postponement should ordinarily be granted immediately.
  6. Evaluation of exceptionalism: The Court examined whether the present case was exceptional. It concluded it was not: much of the prosecution evidence had already been recorded by the investigating Magistrate and there was little reason to fear subsequent loss or contradiction of testimony. The SDM's apprehension of an amicable settlement or loss of evidence was found to be without foundation.
  7. Impartiality and reasonable apprehension: The Court analysed whether the SDM's words and conduct could reasonably create in the minds of the accused an apprehension of partiality. Drawing on a line of authorities, the Court emphasised that even if a judge's conduct is proper, incidents calculated to create a reasonable apprehension of unfairness are valid grounds for transfer. The Court adopted the approach that the tribunal should place itself in the position of the accused and assess whether the apprehension is reasonable in the circumstances.
  8. Conclusion on transfer: Applying that standard, the Court found the accused's apprehension that they may not get a fair and impartial trial before the SDM of Madaripur was not foolish or unfounded. Given that finding and the absence of any other competent Magistrate at Madaripur, the Court directed that the District Magistrate should arrange for the trial to take place at Madaripur either by himself or by another competent Magistrate of the district.
  9. Separate concurrence (Holmwood, J.): Holmwood, J., agreed with the disposal (trial by the District Magistrate or a competent Magistrate at Madaripur) but not entirely with the reasoning. He expressed that misrepresentations in the petition's affidavit undermined the alleged uneasiness; he accepted Brett, J.'s views from Narain Chunder Bannerjee; he considered that if the Joint Magistrate had merely postponed rather than rejected the application for transfer, his conduct would have been correct. Nevertheless, because of technical objections that could render the Joint Magistrate's final order vulnerable to reversal on appeal, Holmwood, J., concurred in the order of transfer as expedient for the ends of justice.

Holding and Implications

Core Ruling: Rule made absolute. The Court ordered that the trial should be conducted at Madaripur by the District Magistrate or by some other competent Magistrate deputed by him in the district.

Implications and direct consequences (as stated in the opinion):

  • The SDM's examination of three prosecution witnesses before granting the application for postponement was held to be legally permissible under precedents (i.e., evidence taken before the accused is called for defence is admissible and not ab initio void), but the Court emphasized that, as a matter of good practice, lower Courts should ordinarily grant an immediate postponement upon an application to enable a party to apply for transfer, unless the case is exceptional.
  • Where words and conduct of a judicial officer are such as to create in the mind of the accused a reasonable apprehension of not receiving a fair trial, transfer to another Magistrate is an appropriate remedy. The Court applied this principle and found the accused's apprehension reasonable on the facts of this case.
  • Because there was no other competent Magistrate at Madaripur, the District Magistrate was directed to arrange trial locally (either by himself or by deputation), thereby seeking to minimize inconvenience to complainant/witnesses while addressing the apprehension of the accused.
  • The Court applied and relied upon existing authorities on postponement and reasonable apprehension; the decision does not purport to overturn those authorities but clarifies practical expectations — notably that recording evidence after an application for postponement is legally admissible but generally to be avoided because it renders records practically useless after transfer.
B.C
Rule made absolute.

This summary is confined to the matters expressly stated in the provided opinion and does not add information beyond that text.

Show full summary ...

    Kali Charan Ghose And Others v. Rajjab Ali Opposite Party.

    Mitra, J.:— This rule was issued on the District Magistrate of Faridpur and the complainant Rajjab Ali to show cause why the case against the Petitioners now pending in the Court of the Sub-divisional Magistrate of Madaripur should not be transferred for trial to some other Magistrate in the District competent to try it.

    The complainant has not appeared and shown cause. The Sub-divisional Magistrate of Madaripur has submitted an explanation through the District Magistrate, and the District Magistrate has stated in his letter to the Registrar of this Court that it will be extremely inconvenient aud expensive to the complainant and his witnesses, specially at the present sowing season, to attend any Court, other than a Court at Madaripur, for the trial of the case. The District Magistrate has also expressed his fear that the transfer of the case might compel the complainant to come to an amicable settlement with the accused and thus defeat justice.

    The main grounds relied on by the Petitioners for the transfer of the case are,—

    (a) that the Sub-divisional Magistrate took an active part in the investigation of the case by the Police, (b) that he has entertained a bias against the Petitioners as regards their commission of the offences with which they are charged, (c) that he has displayed by his words and conduct an anxiety for the conviction of the Petitioners, and (d) that he was wrong in not at once postponing the hearing of the case when the Petitioners applied to him for time for moving this Court for a transfer of the case.

    The allegations of fact on which some of these grounds are based are supported by the affidavit of one of the Petitioners, but the source of information on which the statement as to the complainant and his witnesses having had an interview with the Sub-divisional Officer in his private residence is based, is not disclosed. The Sub-divisional Magistrate has also emphatically denied this allegation and we cannot but pronounce this allegation to be unfounded.

    As regards the other allegations of fact I need not go into them in detail. I am satisfied from the explanation of the Sub-divisional Magistrate that most of the statements in the petition to us are either garbled or they carry an erroneous impression because all the facts and circumstances have not been fully disclosed in the petition. The allegation as to the Sub-divisional Magistrate having been present at the investigation by the Police at the Madaripur school is not correct. The Sub-divisional Magistrate asserts that he went to the school after he was informed that the Police investigation was over and he went there to prevent a breach of the peace.

    There is, therefore, no reason for the conclusion that the Sub-divisional Magistrate took an active part in the investigation by the Police or that he has entertained any bias or leaning against the accused or has prejudged the case.

    The point of real importance in the case relates to the order ??? postponement of the ??? presentation of the petition giving an intimation of an intention of the accused to apply to this Court for a transfer and to matters incidental to the petition. In Queen-Empress v. Gayitri Prosunno Ghosal, Wilson and O'Kinealy, JJ., held that it is obligatory on a Magistrate to grant an application for postponement to enable a party to a case under trial to move a higher Court for its transfer and the refusal to grant the application is illegal. In this case the learned Judges set aside all the subsequent proceedings as illegal on the ground of the refusal of the application for postponement by the trying Magistrate.

    In Surat Lal Chowdhry v. The Emperor and Kishori Gir v. Ram Narayan Gir, the rule said down in Queen-Empress v. Gayitri Prosunno was followed; and we therefore take it as settled law, so far at least as this Court is concerned, that a Magistrate is bound to postpone the hearing of a case for the purpose of enabling a party to apply to a higher Court for a transfer and his refusal to do so renders the subsequent proceedings voidable, if not void.

    In the present case the Sub-divisional Magistrate refused the application for postponement stating it as his opinion that he could go on with the trial until the accused were called on for their defence, and there could be no objection to the Court proceeding with the prosecution up to that stage. As a matter of fact, he postponed the hearing shortly after on the same day, after the examination of three witnesses, with a view to enable the accused to apply to this Court for a transfer. The reason which the Sub-divisional Magistrate has given for examining these witnesses before allowing the application for postponement is that he was apprehensive that the case might be settled amicably out of Court and the witnesses might not afterwards be available and if available might not speak the truth against the accused.

    The first question that arises for our consideration is:—Is the Sub-divisional Magistrate correct in his view of the procedure and law as laid down in sec. 526, sub-sec. (8). The words of the latter part of the sub-section are — “The Court shall exercise the powers of postponement or adjournment as given in sec. 344 in such manner as will afford a reasonable time for application being made and an order being obtained thereon before the accused is called on for his defence.” The object of the law seems to me to be that the proceedings might go on until they arrive at a stage from which, if the proceedings are carried on further, the accused might be prejudiced in his defence. This view has been taken by Stevens and Harington, JJ., in Dhone Kristo v. King-Emperor and by Pratt and Handley, JJ., In Joharuddin Sarkar v. The Emperor. I concur in the view taken by the learned Judges who decided these cases and accordingly hold that the Sub-divisional Magistrate did not commit an error of law in taking down the deposition of three of the witnesses for the prosecution before granting the prayer for adjournment.

    But at the same time, I am of opinion that it is not desirable that the authority to go on with the proceedings until the accused is called on for his defence should be ordinarily exercised. The prayer for postponement or adjournment should, unless the case is exceptional in character, be granted at once. If a transfer be allowed by a higher Court, it may be necessary to examine the same witnesses over again, the record already made being thus rendered practically useless. It is harassing to the parties as well as the witnesses to have the same record made a second time. In Queen-Empress v. Gayitri Prosunno, Surat Lal Chowdhry v. The Emperor and Kishori Gir v. Ram Narayan Gir referred to above, the precise question raised before us did not arise and was not discussed, and if the learned Judges intended to lay down broadly that all evidence taken after the application for postponement is void I would respectfully differ from them, but though I am distinctly of opinion that the evidence taken before the accused is called on for his defence is admissible and is not ab initio void, yet as the record of the evidence becomes practically useless after a transfer, the lower Court should not proceed with the case after an application for postponement to enable a party to apply for a transfer. The impropriety of recording evidence after such an application is obvious. In special cases the Magistrate may record the evidence, but the present case is not one of them. There was an investigation by a Subordinate Magistrate and he had recorded the evidence of most of the witnesses for the prosecution in the ordinary way. There was little chance of these witnesses subsequently making statements contradicting those already made before the investigating Magistrate. The apprehension of the Sub-divisional Magistrate that evidence might disappear was without foundation. I therefore think the Sub-divisional Magistrate ought to have stopped the proceedings on the receipt of the application for postponement.

    The order of the Sub-divisional Magistrate on the petition for postponement and his explanation to this Court, fully display his anxiety that the accused should not escape punishment if they are really guilty. The offences are not compound-able and the Sub-divisional Magistrate has expressed in unequivocal terms his desire that the case should not only be not amicably adjusted out of Court which cannot be without the Court's consent but that the witnesses for the prosecution might not be tampered with in any way. Such a desire is natural and proper in those who are entrusted with the duly of preserving public tranquility and in the present constitution of the criminal judicial administration of the country, such a desire, however openly avowed cannot be found fault with. A Sub-divisional Magistrate has to perform some of the functions of the Police in the matter of preservation of peace and on the discovery of criminals and he has also to perform the functions of a Judge in the trial of those who are guilty of the commission of offences against public tranquility as well as offences against human body and property. Looked at from the point of view of the accused, the words used and the acts done by him tending to show such a desire, when he is himself the judicial officer, may raise, not unnaturally, in the minds of the accused an apprehension that he may not have a fair and impartial trial. A well balanced and impartial mind capable of tracing the true springs of human actions and discovering their harmony, however apparently incongruous the actions may be, may not find any bias in the mind of the Judge; he may approve of his acts and conduct. But the appreciation of a mind properly constituted cannot be the standard to judge of the feelings of an ordinary man accused of a criminal offence. If the words used by and the actions of a judicial officer, though susceptible of explanation and traceable to a superior sense of duty, are calculated to create in the mind of the accused an apprehension and not merely a foolish apprehension that he may not have an impartial trial, the question arises whether it is expedient for the ends of justice that the case should be transferred to another Judge for trial, a Judge who is not, so far as the particular locality is concerned, entrusted with the duty of preserving public tranquility and the detection of crimes.

    The circumstances of the present case are somewhat peculiar. For more than six months the public mind has been in a state of abnormal agitation. Whether there was a proper foundation for the agitation or not, the excited condition of the public mind cannot be ignored. The Government of the Province has adopted measures intended to bring down the public feeling and repress the crimes that necessarily follow such excitement and the Sub-divisional Magistrate of Madaripur is one of those officers whose duty it is to carry out the administrative directions of the Government. He is at the same time a Judicial Officer and entrusted with the duty of trying the accused of offences consequent on the excited condition of the public mind. He had to go to the Madaripur school immediately after the Police investigation, it was his duty to assist in the discovery and punishment of crime and it is not unreasonable in the accused from his words and acts to conclude that he had a bias against them. The transfer of the case is likely to tend to the quieting of the minds of the accused.

    In the matter of Wilson(6), Dupeyron v. Driver(7), Farzand Ali v. Hanuman Pershad(8), Kishori Gir v. Ram Narayan Gir, Khetu Panday v. Mohim Nath Bishi(9), Girish Chandra v. Chandra Moni(10), Nittyanund v. King-Emperor(11), a sufficiently long series of cases, it has been held that, however proper the conduct of the Judge may have been, the state of the mind of the accused is to be considered and any incidents which are calculated to create in his mind a reasonable apprehension that he may not have a fair and impartial trial are good grounds of transfer. What is reasonable apprehension is a question which must be decided in each case with reference to the incidents themselves and surrounding circumstances. Confidence in the administration of justice is an essential element in good Government and a reasonable apprehension of failure of justice in the mind of the accused should, therefore, be taken into serious consideration on an application for transfer. In Narain Chandra v. The Howrah Municipality, Brett, and Stephen, JJ., did not, as I understand their judgment, lay down a different rule, though some of the observations of Brett, J., may lead to such a supposition. Stephen, J., observes in his separate judgment— “What is a reasonable apprehension must be decided by a reference to the minds of the Court and not the mind of the accused.” The foolish idea, it is true, of a litigant cannot be the criterion for judging what is reasonable apprehension, but I think the duty of the Court is to place itself in the position of the accused, to consider the facts and circumstances attending his position and then to decide the question of the reasonableness or otherwise of his apprehension, abstract reasonableness ought not to be the standard.

    Judging by the standard indicated above I am of opinion that the apprehension of the accused that they may not have a fair and impartial trial before the present Sub-divisional Officer of Madaripur is not foolish or unfounded, and I think the case should be transferred to some other Magistrate for trial.

    As there is no other Magistrate at Madaripur competent, in our opinion, to try the case, I think the Magistrate of the district should arrange for the trial of the case at Madaripur either by himself or by some other competent Magistrate in the district.

    Holmwood, J.—I agree with my learned brother that the case should be tried by the District Magistrate or by some competent Magistrate deputed by him at Madaripur, but not precisely on the grounds stated by him.

    I do not think that in a case of this kind where misrepresentations have been made in the affidavit upon which the petition of all the accused is based the alleged uneasiness in the minds of the accused can be given any effect to.

    I entirely concur with what I believe to have been the express views of Brett, J., as they appear in his judgment in Narain Chunder Bannerjee v. The Howrah Municipality.

    I think that had the Joint Magistrate postponed his order on the application for transfer and not in terms rejected it his action would have been quite correct. The danger of witnesses being tampered with is present in every case and there is no prejudice in expressing it as a general proposition. But it was, in my opinion, not quite discreet on the part of the Joint Magistrate to have referred to efforts made by the local pleaders to settle the matter out of Court. The Joint Magistrate himself appears to have been in full symapathy with those efforts at least as far as the school boys are concerned.

    Both the pleaders and he were met by the same difficulty, however, that the case was one that could not be compounded and it was therefore rather hard on the pleaders to infer, if he did infer, that they would be any parties to doing irregularly what the authorities had not found their way to doing regularly. The unconscious bias against the pleaders for the defence which naturally, though most unfortunately, is apt to arise in the mind of a young Magistrate owing to their persistence, in pursuance of what they believe to be their duty to their client, in taking what the Magistrate may think to be an unreasonable or irregular line of defence is, I believe, far more dangerous to an accused than any fancied importance he may attach to expressions which may have fallen from the Court, or which, the Court being presided over by a foreigner, he may imagine to have fallen from the Court.

    Had it not been that the Joint Magistrate by the form of his order has rendered his final decision in this case obnoxious to reversal on the technical ground that he refused time to apply for a transfer and did not merely postpone it, I should hardly have been able to hold that an order of transfer was expedient for the ends of justice and I should, in any case, have held that a transfer from the locality of Madaripur would be most Inexpedient in view of the considerations affecting the complainants which the District Magistrate has laid before us. As, however, it is expedient, in view of the technical objections to the trial that might be raised in appeal, in case of a conviction, that the case should be tried by some other Magistrate, I entirely concur with Mitra, J., that the course he has directed is the proper order to be made in this case.

    B.C
    Rule made absolute.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Kali Charan Ghose And Others v. Rajjab Ali Opposite Party.
    (May 29, 1906)