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.