1974 P Cr (PLP)

Usman Ghana Rashid, Asstt. A: G. for the State. Date of hearing: 6th November 1972. This application seeks to transfer the proceedings under section 110, Cr. P. C. before the Sub‑Divisional Magistrate, Sanghar. Two main grounds are made out by the learned counsel for the transfer and for first of these it suffices to mention the history of an earlier case in this Court, namely, Criminal Miscellaneous Application 275/72.

2. That application which was filed by the present applicant was one for quashing an order under section 117 subsection 3, Cr. P. C. which had been passed in the present case. It would seem that on the 16th of June 1972 information was led before the S. D. M. Sanghar on which account the applicant was produced before him on 17th. On that date the evidence of the S. H. O. and one of the Police officer was taken and an order under section 117(3) passed. Surety offered for this was referred to the Mukhtiarkar for verification. The Mukhtiarkar delayed his verification of the solvency of the surety and the result was that the applicant remained in Jail until the 25th of July 1972 when a learned Judge of this Court quashed the order. I have gone through the order passed in that case and it is clear therefrom that this Court came into view that the order under section 117(3) was not justified and that it did not approve of the delay which had taken place which did seem to the Court to be motivated by a desire to keep the applicant in Jail.

3. The other ground taken by the learned counsel is that after the case was sent back the learned S. D. M. expressed himself, in Court, to the effect that since the applicant had gone to the High Court he, the S. D. M. would see that the applicant does not come out of the jail soon. This allegation is denied and as the learned Assistant Advocate‑General points out it is after all a question of word against word. Since I can dispose of this application upon the other ground I do not find it necessary to record a finding whether or not this allegation is true.

4. Learned counsel argues that in any event, even if the allegation has been falsely made in that it has been made, the learned. Magistrate would be prejudiced against him. I regret I cannot accept this view. The effect of accepting this argument would be that whenever an application for transfer is made; it must be accepted, if made upon the ground of bias.

5. There is, however, that the conduct of the S. D. M. in the hurry in which he passed an order under section 103 and in the conduct of the Mukhtiarkar who took his own time for the verification of the surety which leads to the conclusion that the apprehension in the mind of the applicant can well be genuine. It is to be remembered that the Mukhtiarkar is administratively a subordinate of the S. D. M. I need not digress upon this, inasmuch as I think, that the reasoning of my learned brother, Dorab Patel, J. who passed an order of quashment suffices to show this. All I need say is that I respectfully agree with that.

6. In these circumstances I direct the transfer of the case. Since it is pointed out to me that the case can only be heard by one of the Magistrates specified under section 110, Cr. P. C. I transfer this case to the District Magistrate, Sanghar who shall either try it himself or transfer it to some Magistrate having the power and not subordinate to the S. D. M. in question. Petition allowed.