P L D 1962 (W (PLP)

The learned Sessions Judge admitted the opponents to bail and the order passed by him shows that the Assistant Public Prosecu tor, who represented the State before him, admitted that the learned Sub‑Divisional Magistrate had passed no order under section 117 of the Code of Criminal Procedure. The record as it now stands does contain such an order and the issue whether it originally existed or is a subsequent interpolation still forms the subject‑matter of inquiry before the learned Sessions Judge, and nothing now need be said about it.

3. The order of the learned Sessions Judge admitting the opponents to bail was made the subject‑matter of a reference by the learned District Magistrate under section 438 of the Code of Criminal Procedure, and it was criticised as being in excess of his powers under section 496 of the Code which expressly excluded orders passed under section

117. The reference was refused by Inamullah, J., on the short ground that the Sessions Judge was by no canon of construction a Court subordinate to the District Magistrate. He was placed higher in the hierarchy of Courts. It ended with the suggestion that if the learned District Magis trate wished to challenge the legality of the order passed by the learned Sessions Judge, the remedy was to approach the Court by a proper petition presented through his law officers.

4. There is another off‑shoot of this unfortunate incident which needs only a passing reference. The learned Sessions Judge sent for some chapter cases but the learned District Magistrate intervened and, according to the learned Sessions Judge, directed the Sub‑Divisional Magistrate not to forward the records to him. The version of the District Magistrate is that he was merely taking steps to satisfy himself that complete records were being sent. The learned Sessions Judge moved this Court for proceedings in contempt being taken against the District Magistrate. The matter was dealt with independently of these proceedings and is only an indication of the state of feelings of the judicial officers in the locality at the relevant time. The learned District Magistrate, after this refusal to entertain his reference directed against the Sessions Judge, moved the Court against the respondent for action being taken under the Contempt of Courts Act.

5. The gravemen of the charge against the respondent is that in paragraph 8 of the application for bail presented by him motives have been attributed to the Sub‑Divisional Magistrate which bring his Court in contempt. It is claimed that the respondent, who is related to the opponents, must have known that the facts are not correctly stated, and also that there did exist an order under section 117 of the Code of Criminal Proce dure. In fact it is claimed that the Assistant Public Prosecutor was also misled by the respondent into the belief that no such order existed and the admission made by him must have been on the faith of what the respondent represented to him. The assump tions are difficult to take in. There is sufficient material on the record to raise a doubt in favour of the respondent that he had no such knowledge which the District Magistrate would wish him to be credited. There is again sufficient material to show that several security proceedings pending in the Court had been alarmingly delayed to an extent that a learned Judge of this Court took the view that a case for quashing of the proceedings was indicated. Apart from that the action proposed against the respondent would have the effect of placing counsel under an obligation to assess the truth of the allegation made on pain of being punished for contempt if on inquiry It turns out to be otherwise. It is no doubt true that bias is alleged against the Sub‑Divisional Magistrate and the opponents had expressed the fear that they will not have a fair trial before that Court. These are all allegations directed against the presiding officer of the Court at the relevant time. But this is precisely what the Code of Criminal Procedure permits a person in a proper case to urge before the superior Tribunal. It will be only necessary to reproduce the following statement of law bearing on the limited question in section 526 of the Code:‑ "(i) Whenever it is made to appear to the High Court :‑ (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or * * * * * * * * * * * * * * * * * * * * it may order :‑ * * * * * * * * * * (ii) that any particular case . . . . . be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court . . . . . . ." Under section 527, even the Provincial Government, after following a certain procedure, can move for the transfer of a case from one High Court to another High Court if it will promote the ends of justice. It is in that context that paragraph 8 of the petition for bail has to be determined. If a litigant has a right to move the superior Tribunal to have his case transferred on a ground which certainly reflects on the presiding officer of the Court, it would be tantamount to stultifying that provision if the litigant is placed under a constant threat of being run in for contempt if he comes before a higher Tribunal with a grievance which the laws of the country consider as legitimate and also confer upon him the right to claim a relief resting on those allegations. The present case is stronger in the sense that the action proposed is not against the party but the counsel who drafted the petition. It is possible to predicate of a party to be fixed with some definite know ledge but to extend the knowledge with all its implications to the counsel would in my mind imperil the utility of the profession. It is no doubt true that when the allegations are wild it is for the counsel, as an officer of the Court, to take the normal care to satisfy himself that they are not entirely without foundation. In applications for transfer of cases the Court is not called upon to testify whether the allegations against a particular Tribunal stand armed with any degree of certainty. The scope of inquiry is limited to the finding that circumstances are shown which can form the basis of creating a reasonable apprehension, in the mind of the litigant that he will not have a fair trial, a conclusion which otherwise may be unjustified. This being the scope of that inquiry, I do not think how a counsel could be fixed with greater responsibility of sifting facts and then to take a decision in advance for the client whether these circumstances would or would not justify the grievance which he wishes to be examined by the superior Tribunal. It is difficult, in the circumstances of the case, to resist the feeling that the learned District Magis trate in his zeal to uphold the dignity of a Court subordinate to him has lost sight of the implications of the action which he suggests being taken against the respondent. The aim of all laws is to administer justice between man and man. There can be no efficient performance of that duty unless the judicial system is respected and protected from unwarranted attacks. Where this is true, it is equally certain that in cases which savour of a reasonable complaint, too much insistence on the dignity of Court can never inspire confidence in the Tribunals. Purity from within and security from without against unwarranted attacks can alone help to assure the administration of justice in the real sense of that word. A true balance, therefore, has to be kept. In the present case, the learned Sub‑Divisional Magistrate on his own showing was more of an investigating officer than a judge in the cause. I am inclined to think that in going to the length that he did, he was inspired by a desire to maintain law and order within Its jurisdiction. But having done so, it should have been clear to him that with the feeling that he bore against the opponents and so clearly expressed by him‑the opponents could legiti mately, entertain the apprehension that they expressed, or at any rate he should not take offence if any such fear is entertained and expressed by them. It is in this setting that even a fear that they may not be enlarged on bail in the normal way would not have been quite out of place.

6. After giving this matter my most earnest consideration, I have no doubt that the issues raised are fundamental for the administration of justice. A counsel if he has performed his duty and played the role assigned to him under the law should always remain undeterred in the performance of that duty. Any action which imperils his independence or puts him in fear of being in the dock in the performance of his duties is to be carefully avoided. In cases on the border line, it will be more in consonance with the interest of justice to adopt the view which assures perfect independence to the profession. Even otherwise in criminal law, the benefit if any has to go to the respondent. On the facts of the present case, it is difficult to resist the feeling that there has been something basically wrong somewhere. The points involved are apparently the subject -matter of inquiry before various authorities, and I have no doubt that radical cure will be effected after through shifting. It should be sufficient for the purposes of the present case to say that there is no case for any action being taken against the respondent. It is no doubt true that the allegations in paragraph 8 are too broadly stated, and' one would have wished that they were limited absolutely to the real situation, but the unusual features of this case may have led the opponents to make a grievance general in character though it should have been more, particular. I will, therefore, discharge the notice issued to the respondent. K. B. A. Notice discharged.