P L D 1960 (W (PLP)

Chuni Lal Lachman Das Zargar v. Emperor A I R 1941 Lah. 367 ; Kanwar Sain v. Emperor A I R 1939 Lah. 27 ; Faqir Ismail Sumar v. Th‑ State A I R 1952 Kutch 68 ; Bali Ram Kalwar v. Sitaram Kalwar A I R 1926 Cal. It 73 ; Emperor v. Lakshman Ramshet Alwe A I R 1929 Bom. 309 and Gulabchand Umaji v. Emperor A I R 1937 Sind 33 ref. S. M. Bashir for Petitioner. Rafiq Ahmad Sheikh for A. G. or the State. Date of hearing : 10th October 1960. This order will dispose of Criminal Miscellaneous Petitions Nos. 1035 and 1036 of 1960`. The petitioner in each case was separately tried under section 61 of Act I of 1914 arid sentenced to one year's rigorous imprisonment and a fine of Rs. 100 each. They went up in appeal. The appeals were allowed because of the failure to comply with the provisions of section 342, Criminal Procedure Code, and a remand was ordered from the stage the illegality was committed. The case was remanded to the same Magistrate for further trial. The petitioners have presented the present petitions for the transfer of their case to some other Court of competent jurisdiction. The reason for the transfer in either of the petitions is that the Magistrate while convicting in the earlier stage had rejected the defence evidence and found the prosecution evidence as conclusively establishing the guilt of the petitioners.

2. The short point for decision in this case is whether in circumstances such as these a trial by another Magistrate should or should not be ordered. The learned counsel for the State has referr ed to a case reported as Chuni Lal Lachman Das Zargar v. Emperor (A I R 1941 Lah. 367). This is an order by Mr. Justice Skemp in Single Bench in which he took a view different from the one expressed by him in another case Kanwar Sain v. Emperor (A I R 1939 Lah. 27). In the earlier case the learned Judge had expressed the view that if an accused person has once been convicted by a Magistrate to whom a case is sent back because of error in procedure, an accused will have a reasonable apprehension that he is likely to be convicted again, and that this should be a sufficient ground for ordering transfer of the case. In the latter case the learned Judge dissented from the view previously taken by him and expressed the view that an accused is entitled to transfer of the case only if he has a reasonable apprehension of an unfair trial, and considered the apprehension to be convicted as not such a reason.

3. As I look at the matter, the effect of the conviction being set aside and a retrial being ordered is that the person arraigned can insist to have the case reviewed by a Court which is in no way possibly fettered by a conclusion reached by it previously. The accused is presumed to be innocent until his guilt is established, and this is a presumption which ends only on conviction. The effect of the setting aside of the conviction is to place the accused in a position where he could reasonably insist that the tribunal who tries him should assess the evidence uninfluenced by any estimate of the evidence previously formed by it. This is basic in criminal jurisprudence, and I am not aware of any rule which has taken a different view. The point for determination, therefore, is, could an accused person be said to entertain a reasonable apprehension that he will not have a fair trial, if the reason for the fear is that the tribunal could not approach the case from an independent angle having committed itself earlier to a conclu sion against him. A fair trial postulates an independent approach to the evidence led and if the accused reasonably entertains the fear that he is not likely to have it there will be no escape from the conclusion that he has been denied a fair trial. The point for determination is not whether the previous conclusion was right or wrong. That will be begging the question. It may be right. It may be wrong. If it is wrong conclusion in the estimate of the petitioner, he knows that the wrong is not likely to be righted if the same tribunal is called upon to adjudicate a second time. If the conclusion reached by the Magistrate is right, though the petitioner is not prepared to accept its soundness, another tribunal might as well reach the same conclusion. In the administration of justice under the criminal law it is the satisfaction of the accused which is of primary importance and not the possible inconvenience to the prosecution which a de novo trial might entail. I can conceive of cases where perhaps sending the case toy a different Magistrate may not be necessary. The accused might as well be content to have a trial by the same Magistrate, or there may be some exceptional circumstances demanding such a course to be pursued, but the normal rule seems to be that if the accused wants the trial by a different tribunal, he should be assured an environment which inspires confidence in him. In a case reported as Faqir Ismail Sumarv. The State (A I R 1952 Kutch 68), the Judicial Commissioner of that Court has also followed the same view following Bali Ram Kalwar v. Sitaram Kulwar (A I R 1926 Cal. 1173), Emperor v. Lakshman Ramshet Alwe (A I R 1929 Bom. 309) and Gulabchand Umaji v. Emperor (A I R 1937 Sind 33). I would accordingly hold that the petitioner can be said to entertain a reasonable apprehension that be may not have a fair trial by the same Magistrate. It is desirable that the trial be held by a different Court which will be in a better position to make an independent assessment. The petitions are accordingly allowed and the case remanded to the learned District Magistrate, Lyallpur, to try these cases himself or assign them to some other Magistrate of competent jurisdiction. K. M. A. Petition accepted.