P L D 1967 Dacca 305 (PLP)

A. SUBHAN CHOUDHURI, J.‑This is an application for transfer of a criminal case arising out of the following circumstances. Certain land and but claimed by the complainant opposite -party as belonging to his father Abdul Kader were the subject- matter of a proceeding under section 145 of the Code of Criminal Procedure being M. R. Case No. 38 of 1955 in which the accused petitioners were the first party and the complainant party formed Group 'A' of the second party. On remand by the High Court the case was decided in favour of the complainant party by Mr. A. F. Mohammad Ali, Magistrate 1st class; Bhola. On 11‑12‑63 the complainant submitted a written statement ejahar at Lalmohan' P. S. alleging that on 8‑12‑63 the accused being variously a armed formed an unlawful assembly and trespassed into his father's land and but which were the subject‑matter of the aforesaid proceeding under section 145 of the Code of Criminal Procedure, and that on protest by the complainant some of the accused party injured his father Abdul Kader and looted away paddy, household articles and one boat and a bull, in all worth about Rs. 3,

050. It was further alleged that as a result of the injury complainant's father died subsequently. After investigation, police submitted charge‑sheet against the petitioners and 15 others before the Sub‑Divisional Officer of Bhola and that case is now pending in the Court of the, afore said Magistrate Mr. A. F. Mohammad Ali for inquiry under Chapter XVII of the Code of Criminal Procedure. On 7‑I1‑64 the petitioners submitted an application before the inquiring Magistrate intimating to him that in view of the fact that he having already decided a case against the petitioners under section 145 of the Code of Criminal Procedure between the parties in respect of the self‑same property, the petitioners apprehended that they may not have a fair and impartial inquiry or trial before him and that they would, therefore, move a petition before the High Court for transfer of the case to some other competent Court with prayer for adjourning the case to enable the petitioners to move the High Court. After hearing the petition, the learned Magistrate granted an adjournment till 5‑12‑64 but at the same time he cancelled the bail of 3 accused persons who were present in Court and also cancelled the bail of another accused who could not be present in Court on account of his illness disbelieving the medical certificate given by the Medical Officer of Government Thana Dispensary, Lalmohan. While passing order on the petitioners' application dated 7‑11‑64 referred to above, the learned Magistrate observed that he did not try any case under section 145 of the Code of Criminal Procedure, but that when M. R. Case No. 38 of 1955 which had been tried by his predecessor was sent on remand by the High Court to write out a fresh order in accordance with the observa tions made by the High Court he only wrote out the order. He also passed order for issue of non‑bailable warrant of arrest against one of the accused, Abdul Barek by name, and remanded 3 other accused to Hajat after canceling their bail bonds on the ground that on two previous dates they were absent. Mr. Azizuddin Ahmed appearing on behalf of the petitioners has submitted that Mr. A. F. Mohammad Ali is the Magistrate who previously decided possession of the property in question in favour of the complainant‑opposite‑party and that he will be called upon to decide that very question of possession again in this case and that in such circumstances there is reasonable apprehension that a fair and impartial inquiry cannot be had in his Court. Subsection (1) of section 526 of the Code of Criminal Procedure provides that "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", the High Court may order that the particular case be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. If there are circumstances leading the accused to entertain a reasonable apprehension that he may not have a fair trial in a particular Criminal Court it is desirable that his case should be transferred. This view finds support in the case of Khetu Panday v. Mohim Nath Bishi and others (8 C W N 75). In that case the learned Judges were of the opinion that the Rule issued in respect of an order of the District Magistrate transferring the case from one Court to another should be discharged and the order of transfer made by the Magistrate should be upheld. Their Lordships observed: - "We think it that this should be our order, because we are of opinion that such an order is expedient for the ends of justice, it being desirable in all such cases that the mind of ‑the accused should be quieted in respect of any reasonable apprehension that be may entertain about his not having a fair trial. That does not imply that the trying Magistrate is really biased against the accused but it circumstances have so transpired as to lead the accused to entertain a reasonable apprehension that be may not have a fair trial, it is expedient for the ends of justice that the case should be transferred from one Court to another." The decision in the case of Rajani Kanta Dutt v. Emperor (36 C W N 904) also supports this view. The learned Judges in that case observed: "Without in any way detracting from the doctrine, which we accept as sound, that a reasonable apprehension in the mind of accused that he may not have a fair trial is a sufficient ground for transfer, we at the same time hold that in applying that doctrine regard must be had to the circumstances of each case." Proceeding further they made the following observation: "The mere fact that in any other case, on other evidence, the Sessions Judge may have come to a particular conclusion is not in itself a sufficient ground for transfer and that has been decided by a Division Bench of this Court in Asimaddi v. Govinda Baidya. On the facts of this case we hold that there should not be a transfer." In the case under reference the Sessions Judge of Bankura in delivering judgments in two other cases of similar nature had expressed only certain opinions unfavourable to the petitioner. The facts of the present case are distinct from those in the case referred to above inasmuch as in this case the learned Magistrate had already given a decision in a proceeding under section 145 of the Code of Criminal‑Procedure declaring possession in favour of the complainant‑opposite‑party and that very question will have to be decided in this case also. Here it is not a question of an opinion unfavourable to the petitioners having been expressed but a finding already made with regard to a vital point which awaits decision in the present case. A plain reading of section 526 of the Code of Criminal Procedure shows that the High Court may order the transfer of a case from one Court to ‑another Court of equal or superior jurisdiction provided that it is made to appear to it that a fair or impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto. The section does not make it necessary that there should be a reasonable apprehension in the mind of the accused that he will not get a fair and impartial inquiry or trial. It is enough if it appears from circumstances placed before the High Court that a fair and impartial inquiry or trial cannot be had in any Court. This section read with the decisions referred to above however,' produces the following result, namely, that the High Court may; transfer a case from one Court to another if it is made to appear` to it that the accused cannot have a fair or impartial inquiry or' trial in any Court and also where circumstances have so transpired: as to lead the accused to entertain a reasonable apprehension that; he may not have a fair trial. Fulfillment of either of these conditions is enough for ordering transfer of a case from one Court to another. This is in consonance with the principle that justice should not only be done but should appear to be done. It is not necessary that bias of the Magistrate must be proved to justify a transfer. What is necessary is to see whether circumstances exist, be those of bias or otherwise, as to justify the apprehension of the accused so as to bring the same to the standard of "reasonable apprehension". In this case when the petitioners submitted an application before the learned Magistrate on 7‑11‑64 intimating that they would move the High Court for transfer of the inquiry by some other Court inasmuch as the same learned Magistrate had decided possession of the disputed property in favour of the opposite -party in the proceeding under section 145 of the Code of Criminal Procedure and that this have rise to an apprehension that they may, not have a fair and impartial inquiry or trial before him, the following order was recorded by the learned Magistrate:‑ "7‑11‑64 Aced. Abdul Barek is absent. Seen petition with M. C. I am unable to give any reliance to such M. C. in the circumstances of the case. Issue non‑bailable w/a. against him. Aced. Delwar Hussain, Abdus Sahid and Abdul Mannan are present to‑day. They are in the habit of absconding without any cause. They were absent on last 2 dates and this Sessions enq. had to be adjourned. Their bail bonds are cancelled. They are remanded to hajat. Seen a petition under section 526, Cr. P.C. on the ground that I tried two 145, Cr. P. C. cases. In fact I did not try any of the cases, M. R. 38/55 was tried by my predecessor and against his order there as a motion and High Court was pleased to send it on remand to write out a fresh order on the observa tions made by High Court. I therefore, as successor Magistrate wrote out the order as per observations made. The other case M. R. 125/62 was tried by Mr. M. A. Aziz, S. D. O. In any case I allow an adjournment to move Hon'ble High Court for transfer. The petitioners to execute a bond of Rs. 200 each to move the Court. To 5‑12‑

64. Other. accused as before. (Sd.) A. F. M. Ali". It is true that the learned Magistrate did not record evidence in the proceeding under section .145 of the Code of Criminal Procedure but only wrote out the judgment in accordance with the observations of this Court. Nevertheless, he decided that case and found possession in favour of the opposite‑party as against 'the petitioners. It is clear from the facts stated above that in this case also one of the essential points which will fall for determination will be whether the opposite‑party is in posses sion of the disputed property or whether it is in possession of the petitioners. It thus appears to us that a fair and impartial inquiry or trial may not be had by the petitioners in this case before the learned Magistrate and that the petitioners have reasonable apprehension in this regard.. Applying the legal principles discussed above to the facts of this case, we consider it expedient that there should be a transfer. We, therefore, make the Rule absolute and direct that the inquiry pending in the Court of the learned Magistrate Mr. A. F. Mohammad Ali be transferred to the Court of some other Magistrate, 1st class at the same station, namely Bhola. BAQUER, J.‑I agree. R. B. A. Rule made absolute.