Woodroffe, J.:— This Rule for a transfer Was granted on the strength of statements contairled in the affidavit of Jeeban Chandra Dutt, a cousin of the petitioner, and in particular, the allegations that the Sub-Divisidnal Officer of Bishunpur, Babu A.B Bose, refused to entertain an application by the accused Kedar Nath Kar under section 526, Criminal Procedure Code and that he remarked, “the Magistrate has rejected your application ana you have now fallen into rny hands.”, Both these allegations are stated by the Magistrate, Babu A.B Bose to be absolutely false. He says With refer-ence to the allegation that he did not receive the accused's petition personilly presented by the latter on the ground that there was no identification df the accused's signature by any Mukhtear, that he personally know is the accused and that, it would be quite Unnecessary for him to require identi-fication of his signature. It lias, however, been Suggested by the learned pleader who appears for the petitioner that the reason assigned for rejection of the petition by the Magistrate was a sham one and that the real reason why he did not accept the petition for an adjournment to enable an application to be made for transfer to this Court was that if he had done so he would have been bound to stay proceedings pending application to this Court. The petitioner says that he failed to get the help of any pleader or mukhtear and so presented the petition perssnally.
2. That petition is not produced. The Magistrate further states that a pleader and iiwo mukhtears appeared for the accused. Three persons have been examined on oath by the Magistrate and their statements have been sent to us. The two mukhtears of the accused say that they were present all along, that the accused did not make any application under section 526 or ask them to identify his signature and that they did not hear the Magistrate making any remarks against their client. The accused's pleader swears that he did not hear any such remarks and in particular that he did not hear the Magistrate saying “The Magistrate has rejected your application and you have now fallen into my hands.” The learned pleader for the accused in the first place objects to the us of these statements and submits that the Magistrate was not entitled to examine any one in order to answer personal charges against himself. His contention is that the petitioner can file what and how many affidavits he chooses accusing a Magistrate of misconduct, but the latter may not do so but must rest his case on a simple denial though, by so doing, he may run the risk of having his statement rejected. This contention is neither consonant with sense nor justice. The cases referred to, Revision case No. 2 of 1904, 12th February and that reported in 7 C. W.N 859 have no bearing on the matter before us. In the first case, the question was whether there was an abandonment by the accused of their right to have witnesses re-called for further cross-examination. In the second, the Court held that in showing cause to a Rule why a conviction should not be set aside it was not open to the Magistrate to submit observations with a view to supplement or add to his judgment. The case before us is of an entirely different character. Grave personal charges are made against the Magistrate himself. It is next contended that the statements of the pleader and mukhtears are not inconsistent with the, petitioner's statement, as the latter was made before they arrived in Court. There is nothing to support this before us. So far as the present application is concerned, the case for a transfer fails. The matter cannot, however, be allowed to rest there. Serious charges have been made: against the Magistrate both in the affidavits and in the statements of the learned pleader for the petitioner These must be enquired into. If as stated by the Magistrate the allegations are false, proceedings may have to be taken “against Jeeban Chandra Dutt who made the affidavit containing these allegations on the assumption of the truth of which, this Court granted a Rule. We have considered the course which we should take in the matter. Section 476 of the Criminal Procedure Code does not appear to provide for the case of an offence before a Court in a Presidency town. It empowers a Court to send a case for enquiry or trial to the nearest Magistrate of the first class. But the nearest Magistrate, namely, the. Presidency Magistrate is not a Magistrate of the first class. We think we should follow a course analogous to the practice on the Original Side of this Court, according to which the papers are laid before the Government Solicitor for him to take action thereon if he thinks fit. We accordingly direct that this judgment and the papers in this case should be laid before the Legal Remembrancer for enquiry and such action thereon as he thinks proper. We desire to say that we express no opinion in the matter beyond this that we accept for the, purposes of this Rule the statement of the Magistrate apparently supported as it is by the affidavits to which we have referred and that w, e think a case has been made out for supposing that a false affidavit has been sworn and used before, us. Whether this be so or not should be the subject of further and careful enquiry. In the event of the Legal Remembrancer desiring to take action in the matter, he should apply on notice to the party to be proceeded against and stating the result of such enquiry for sanctiou to prosecute. The Rule is discharged.
3. Rule discharged.