JUDGMENT
Das, J.
1. This is an application for transfer of a criminal case from the Court of the Deputy Magistrate of Purnea to some other Criminal Court. The petitioner complains that the Court has taken up an attitude with regard to him which leads him to believe that he would not get a fair and impartial trial at the hands of the learned Deputy Magistrate and he accordingly invites this Court to transfer the case to the file of some other Magistrate.
2. A long series of cases have established that (1) it is expedient for the ends of justice to transfer a case from the file of one Magistrate to that of another competent to try it, if, by reason of the words or conduct of the Magistrate before whom the case is pending, any party reasonably apprehends that there is a bias against him in the mind of the Magistrate, though there may not be in fast any actual bias, and (2) the transfer of a case should be ordered when there are circumstances which may reasonably lead the petitioner to believe that the Magistrate has to some extent prejudged the case against him and will in consequence be prejudiced against him. As Lush, J., said in the celebrated case of Serjeant v. Dale (1877) 2 Q.B.D. 558 at p. 567 : 46 L.J.Q.B. 781 : 37 L.T. 153: “The law, in laying down this strict rule, has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.”
3. These being the guiding principles upon which the Court invariably acts in dealing with applications of this nature, I have to consider whether, in the circumstances of this case, I should direct the transfer of this case from the file of the Deputy Magistrate of Purnea to that of some other Magistrate. The petitioner contends before me that the learned Deputy Magistrate has not only shut out his defence but has prejudged it with this result that so far as that Court is concerned, there is little chance of his being able to establish his defence. He says that one of the main, motives for the institution of this case is that Rama Murti, the Circus Proprietor, who is the real complainant, was baffled in his attempt to get hold of a woman with whom he, the petitioner, is living as husband and wife.” Now this case may be true or false, but’ it seems to me that he was entitled to ask the Court to consider his case. It appears, however, that the learned Magistrate shut out all questions in cross-examination which tended to establish this defence. The learned Deputy Magistrate, in his explanation to this Court, justified the ruling which he gave on this point, on two grounds, first, the questions were scandalous and not necessary for the decision of the case, and secondly, the suggestions were made at a late stage and were not put to the earlier witnesses examined on behalf of the prosecution.
4. So far as the first ground is concerned, the learned Magistrate was clearly in error; indecent or scandalous questions may be put either to shake the credit of a witness or as relating to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. If they are put merely to shake the credit of a witness, the Court has complete dominion over them and may forbid such questions, even though they may have some bearing on the question before the Court. But if they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed, the Court has no discretion to forbid such questions, though they may be indecent or scandalous. The learned Magistrate thought that in a case of alleged misappropriation, scandalous questions should not be allowed to be asked. But the case of the defence is that no one would have heard of this alleged misappropriation if scandalous circumstances did not exist. It seems to me that the questions related to matters necessary to be known in order to determine whether or not the facts in issue existed and, therefore, should have been allowed to be put.
5. The second ground put forward by the learned Deputy Magistrate is equally without merit. It is true that the case as suggested by the questions which were disallowed was not put to some of the earlier witnesses examined on behalf of the prosecution. That, in my opinion, affects the weight to be attached to the case, not the admissibility of the questions. Advocates have ample discretion in the conduct of the case of which they are in charge, and the Courts cannot fetter their discretion by insisting that their case should be put to this witness or that. There may be perfectly good explanations why this particular case was not put to some of the earlier witnesses. If a satisfactory explanation is not ultimately given as to why the case of the defence was not put to some of the earlier witnesses, the Court would be entitled to approach that case with suspicion, but the stage for explanation had not arrived, and the Court was not entitled to disallow the questions on that ground. The learned Counsel for the petitioner says that the Court has already made up its mind that the defence must be false because it was not put to some of the earlier witnesses. Another fact prominently brought to my notice is the note of the learned Magistrate to the effect that he “did not much value instructions on these matters from a man of the moral character of the accused.” In my opinion, the petitioner may reasonably be apprehensive after this expression of opinion that the Court has prejudged his defence. Instructions on these matters could only be given by the petitioner and if the learned Magistrate does not value these instructions, the petitioner may reasonably think that it would be worse than useless for him to put forward his defence before the Magistrate trying the case.
6. I think, therefore, that a transfer is expedient in this case. I ought to state, however, that, in my opinion, the Magistrate has no real bias against the petitioner. But he has unfortunately used words which are calculated to create in the mind of the petitioner a reasonable apprehension that justice may not be done to him. I cannot too strongly press upon the Magistrate that “next to the importance of deciding a case fairly and impartially is the importance of conducting oneself in such a manner as to inspire in the minds of the parties a confidence that nothing but absolute justice would be done to them:” [See Lolit Mohan Moitra v. Surja Kanta Acharjee 28 C. 709 : 5 C.W.N. 749. I have no doubt whatever that the learned Deputy Magistrate would have tried the case fairly and impartially, but I have also no doubt that, without intending it, he has unfortunately conducted himself in such a way as has created in the mind of the petitioner a reasonable apprehension that he will not secure absolute justice from him. In this view and without casting the slightest reflection on the Magistrate, I deem it expedient that the case should be transferred from his file.
7. There is one matter which I cannot pass by in silence. The petitioner alleges that when the questions which were subsequently disallowed by the Magistrate were put on his behalf to Krishnarao, Babu Jyotish Chunder Bhattacharjee, who was appearing for the complainant in this case, “said something indicating a threat that Rama Murti would take legal steps against the defence Pleader.” The learned Magistrate, in his explanation, denies that Mr. Bhattacharjee held out; a threat that Rama Murti would take legal steps against the defense Pleader, but he admits that he said that Rama Murti might further proceed. In my opinion, the distinction sought to be made by the learned Deputy Magistrate is without a difference Babu Jyotish Chunder Bhattacharjee is a Vakil of standing and eminence and I am unwilling to believe that he could have used expressions which have been imputed to him by the learned Deputy Magistrates; but I deem it my duty to say that it is highly improper for persons in charge of prosecution to threaten or intimidate either the accused persons or the Pleaders appearing for them. The position of accused persons is at all times one of grave anxiety, and persons in charge of prosecution should remember that nothing should be done by them which may have the effect of intimidating the defence or adding to its anxiety.
8. I direct that the case be transferred to the file of the District Magistrate of Bhagalpore, who will either try it himself or make it over to some officer competent to try it.