JUDGMENT
Atkinson, J.
1. This is an application for the transfer of this case from the Court of the Sessions Judge of Gaya to some other Sessions Court within the Province.
2. The accused has been charged with offences under sections 161 and 165 of the Indian Penal Code. The charge is in respect of receiving illegal gratification. In the first instance the accused was proceeded against at Ranchi. He formerly occupied the position of Superintendent of the Office of the Inspector-General of Civil Hospitals for Bihar and Orissa. At Ranchi, the proceedings advanced up to a certain stage. An application was then made to this Court for a transfer of the case from Ranchi to some other Court. Eventually the matter came up before the Chief Justice and Mr. Justice Sharfuddin, with the result that an order was made transferring the case, more or less by consent, to the Court of the Sessions Judge of Gaya.
3. On the 10th of April, the learned Sessions Judge of Gaya had full seisin of the hearing of this case. The accused was represented by various leading legal gentlemen, but more particularly by the distinguished Advocate of this Court, Sir Ali Imam. On the 10th of April, it is alleged now for the first time, a remark was made by the Judge to Sir Ali Imam which caused some little unpleasantness; but inasmuch as this matter has not directly or indirectly been referred to in the petition before us, we will disregard it entirely from our consideration. Matters proceeded and the learned Judge, in order to meet the request of the professional gentlemen on behalf of the accused, made a certain order that inasmuch as he would take evidence in respect of illegal gratification received by the accused outside the three charges that were preferred against him, Counsel for accused should have the opportunity of cross-examining witnesses three days after the examination-in-chief of each witness had concluded, in order that the legal advisers of the accused might not be inconvenienced and have ample time to prepare materials for cross-examination; and as far as this arrangement was concerned the learned Judge appears to have treated the accused and his Counsel with every consideration possible.
4. On the 16th April the cross-examination of Panna Lal by Sir Ali Imam commenced and at this stage an incident, which is much to be regretted, took place. The cross-examination continued for two whole days, and Sir Ali Imam endeavoured in the course of the cross-examination to get from this witness from whom his instructions were received with regard to the procuring of certain confidential reports. The witness claimed privilege and the learned Sessions Judge ruled that the witness was entitled to claim privilege and that he should not be called upon to answer the questions that were then being put to him. Whereupon Sir Ali Imam is alleged to have said: “I will get it yet;” and the learned Judge seems to suggest in his note that thereafter Counsel set himself to extract from the witness in an indirect way answers to the questions for which privilege had been allowed by the learned Judge. The learned Judge styled the conduct of Sir Ali Imam in so doing as “improper”. I think that the learned Judge used the word improper” in a wrong sense; and I do not think that the learned Judge could have intended to convey any personal insult to the learned Counsel or that his conduct was in any sense morally improper. I think, however, that Judges should have great regard for the high position they occupy and to the fact that they are the administrators of law and justice; and they should be very careful not to make wrong use of words or to offer discourtesy or insult to the professional gentlemen who appear before them. But in my opinion while the obligation on the part of the Judge towards the legal profession is great, the obligations imposed on Counsel in their conduct towards the Bench is of equal importance. Counsel are members of an honourable profession and should recognize their responsibility and their duties towards the Court and to the public, and should endeavour by their conduct to prevent on all occasions unpleasantness; and should not by word or gesture provoke the Court or the Judge to offer discourtesy. If the Judge rules that a certain question should not be asked, a reasonable man actuated by a high sense of professional dignity ought to follow that ruling and act accordingly. If Counsel thinks that the ruling of the Judge is wrong, he has a remedy for having the Judge set right and no attempt should be made which would be calculated to mislead or to provoke unpleasantness between the Judge and Counsel. Nobody regards more sincerely than I do the obligation which should guide the Court in its conduct towards the legal gentlemen who appear before it; and nobody has higher regard for the rights and traditions of the legal profession than I have; but it would be wrong to encourage the idea or create the impression that a quarrel or unpleasantness between Judge and Counsel should be allowed to form the basis for an application for transfer. If a quarrel is provoked then the responsibility is upon those who do provoke the quarrel. As I have indicated above, the learned Judge wrongly used the word improper” in regard to the conduct of Sir Ali Imam. Sir Ali Imam is a distinguished member of the legal profession of 27 years’ standing and I cannot think that the learned Judge could have intended to convey that Sir Ali Imam was guilty of improper conduct in the strict technical sense. Nobody who knows Sir Ali Imam would suggest that he would be consciously guilty of conduct likely to provoke the displeasure of the Court. There has been in this case an unfortunate misunderstanding between the Judge and Counsel and I think no more. All that we are concerned with in this application, however, is to see whether in this case there is any indication upon which we could hold as reasonable men that the accused will not get a fair trial at the hands of Mr. Foster. And we are also to consider in that aspect of the case whether a transfer should reasonably be given; and whether if the accused is further tried by Mr. Foster the accused will be prejudiced. Mr. Hassan Imam in concluding his address said that he felt sure that if the accused was further tried by Mr. Foster he would not get a fair or impartial trial. What we have to ascertain is whether there is any foundation or reasonable cause for this assertion. This Court must be satisfied itself that if a transfer is not granted the prisoner may be prejudiced, and not have a fair and impartial trial. In my opinion the law on this subject laid down by the Calcutta High Court is far too wide in its general terms, vide the eases reported as Dupeyron v. Driver 23 C. 495 : 12 Ind. Dec. (N.S.) 329 Legal Remembrancer v. Bhairab Chandra Chuckerbutty 26 C. 727 at p. 733 : 2 C.W.N. 65 : 13 Ind. Dec. (N.S.) 476 and Kali Charan Ghose v. Emperor 33 C. 1183 at p. 1189 : 3 C.L.J. 637 : 10 C.W.N. 793 : 3 Cr.L.J. 477. These oases seem to suggest that the right to a transfer is to be governed by what the accused thinks are his prospects of securing a fair trial, and not as to whether prejudice exists or not in the mind of the Trial Court. I cannot follow that line of reasoning. It is for the High Court exercising its jurisdiction to transfer to satisfy itself that on the facts disclosed there is a reasonable apprehension that the accused may be prejudiced and not have a fair trial. This was the law laid down by Mr. Justice Knox, in a case reported as Juggan v. Emperor 22 Ind. Cas. 996 : 36 A. 239 : 15 Cr.L.J. 212 : 12 A.L.J. 399 after a full and exhaustive review of all the authorities and certainly it appears to be consonant with the general principles of law and the meaning and spirit of Section 526 of the Criminal Procedure Code. Otherwise the discretion of the High Court would be fettered and controlled by the opinion of the accused.
5. Mr. Foster made certain observations, whereupon Sir Ali Imam thought it incumbent on him to withdraw from the case and as Sir Ali Imam was leaving Court, Mr. Poster said : “if you take my rulings in a personal manner your absence will afford me great relief.” It may have been rather indiscreet language to have made use of ; but I do not think that the learned Judge intended to convey a personal insult to Sir Ali Imam ; but certainly to my mind it does not afford reasonable ground for transferring the case. Sir Ali Imam withdrew; but the accused had representing him, besides Sir Ali Imam, three Barristers and two Vakils, every one of whom also withdrew. I think the attitude and conduct of these gentlemen amounted to gross injustice towards their client. There had been no insult offered to the Bar in general in any way by the learned Judge. If the Bar as a whole had been insulted they would have been entitled to withdraw as a protest against the Judge’s conduct. But the incidents narrated in this matter were between the Judge and Sir Ali Imam, and had nothing whatever to do with the profession as a whole. Therefore, I think that the other gentlemen who appeared for the accused were bound to safeguard the interests of their client; and that they committed a serious breach of duty in leaving their client in a helpless condition without legal assistance. The unfortunate incident between the Judge and Sir Ali Imam appears to have taken place in the morning at 8 o’clock and was all over within 20 minutes. There is on the record a note by the learned Judge of everything that took place from day to day a very full and ample record. The accused filed a petition on the 18th, asking that the case might be postponed for a week to enable him to engage fresh legal advisers for his defence; and it is noteworthy that nowhere in the petition filed on the 18th, nor in the two petitions filed on the 19th, is there any suggestion that the accused was being unfairly treated by the learned Judge. On the contrary, if the record of the 18th is correct the accused admitted that he had been fairly treated. After Counsel had withdrawn, the accused put in a petition for the postponement of the case on the sole ground that his legal advisers having deserted him he would be obliged to engage and instruct other gentlemen. The Judere at first allowed an hour’s timethat of course was not sufficientto engage and instruct Counsel. The learned Judge recognised this and granted further time for a day, or rather 22 hoursfrom 11 o’clock on the 18th to 9 o’clock the following morning. On the following morning the accused again appeared without any Legal Advisers and filed a petition praying for a further postponement for three days. Mr Foster said, I can’t give you three days’ timeI have witnesses here who are public servants and come from various districts and who have been kept here for their cross-examination for more than three daysI cannot delay the case further my order is final. However, after further consideration the learned Judge gave the accused another day in the hope that he would be able to engage some Vakil or Counsel, of whom there are several in Gaya, to defend him. The next day when the learned Judge proceeded to take up the case he received a telegram from Mr. Hasan ImamMr. Hasan Imam refers to the reference in the Judge’s record to the receipt of this telegram and says that the manner in which the learned Judge has recorded its receipt by him was intended to be a personal insult to him. I certainly think no such inference could be drawn from the entry in the Judge’s record. The suggestion appears wholly without foundation, Mr. Hassan Imam’s motive in sending the telegram could only have been to relieve Mr. Foster of considerable embarrassment and to warn the District Judge against taking any steps calculated to prejudice the accused. Upon receipt of Mr. Hassan Imam’s telegram the learned Judge wired to the Registrar (or to the District Magistrate) to ascertain what the exact position was; and by the post arrived Mr. Coutt’s letter informing him that this Court had been pleased to let notice issue to show cause why this case should not be transferred from the file of the District Judge of Gaya to the file of some other Court.
6. In the petition for transfer it is stated that the learned Judge should have granted the petitioner an adjournment for seven days, because under the circumstances it was justifiable to enable him to secure new legal advisers; and that the learned Judge’s tefusal to give an adjournment clearly showed that the Judge was prejudiced towards the accused and that he could not expect justice at his hands. This arguments seems to be untenable. To countenance it would be to reduce the administration of justice to a farce. In this connection it is right to observe that it was not the learned Judge who was unfair to the accused, but his own legal advisers who wholly abmdoned him without any plea or justification. The Judge was bound to proceed with the case after a reasonable opportunity was afforded to the accused to secure legal assistance; such opportunity was given to the accused but he failed to avail himself of it, though he was on bail and free to secure the services of some of the many legal practitioners in Gaya.
7. A further ground for asking for a transfer is that the learned Sessions Judge interfered unnecessarily in the cross-examination of a certain witness by the accused’s Counsel, and thus showed himself not to be impartial.
8. Now, it is for the Judge, when he sees that a Counsel is harassing or browbeating a witness unduly, or trying to suppress his answers, to intervene and protect the witness in the interest of justice. In this case the learned Judge says that he had to intervene because he thought that the witness was being unduly harassed and treated with unfairness. I have known of many worse’ quarrels than this between Judge and Counsel, but I have never known of a case where the fact of an altercation between the Bench and Counsel was put forward as a ground for a transfer. .
9. I do not think that, merely because there has been this unfortunate misunderstanding between the Judge and Counsel, we should, in the exercise of our discretion, transfer this case. If we do so we might be creating an impression that every little misunderstanding, whether provoked or unprovoked, between Judge and Counsel would be a sufficient ground for transfer, although there would be no ground for a reasonable apprehension that the accused would be prejudiced. In this case I am convinced that no prejudice against the accused exists in the mind of the learned Judge; and I am satisfied that the accused has not got a reasonable ap prehension that he will not receive at the hands of Mr. Foster a fair or impartial trial.
10. One more matter is of importance and it is referred to incidentally in the petition. Sir Ali Imam is alleged to have called Panna Lal a liar three times. Sir Ali Imam, through the petitioner, says that he merely put it to the witness that a certain statement made by the witness was false. The learned Judge, in the daily record of the proceedings, seems to have put a wrong construction upon the question put to the witness by Sir Ali Imam; and he seems to think that the Counsel called the witness a liar three times when he gave Sir Ali Imam a hostile answer to a question put. If, as the learned Judge says, it was a fact that the Counsel called the witness a liar it would be clearly the duty of the Court to intervene; but we are inclined to think that the learned Judge was wrong in putting that interpretation on Sir Ali Imam’s observation. It would, in our opinion, be very regretable to think that a gentleman of the legal profession of Sir Ali Imam’s standing would call a witness in open Court a liar; and we decline to accept the statement that Sir Ali Imam called the witness Panna Lal a liar. We think that what Sir Ali Imam did say was, “I put it to you that the statement made by you is untrue, that is, is not true, that it is false.” However, although we think that the unfortunate incident which took place between Sir Ali Imam and Mr. Foster is much to be regretted, we cannot say that the learned Judge has done anything which would lead us in any way to hold that he has rendered himself incapable to proceed with the trial of this case and to discharge his duties fairly or impartially. Therefore, we feel that we must refuse this application.
Chapman, J.
11. I agree. I desire to add one or two words upon the two points on which the application for transfer is based. In respect of the first ground, which concerns the unfortunate incident which arose from a question asked by Sir Ali Imam for the purpose of obtaining from the witness information in respect of which the District Judge had previously allowed privilege, i have this to say: that while there was reason for the District Judge to complain of the question it would have been better if he had simply disallowed it. He should not have accused Sir Ali Imam of impropriety of conduct. Again, when he saw that strong feeling had been aroused, the learned Judge was indiscreet in utilising that occasion for finding fault with the manner in which the witness had been cross-examined by Sir Ali Imam on the previous day. In my opinion the Courts in this country should be more careful to, show courtesy to Counsel who appear before them than Courts elsewhere. The Courts have not had experience at the Bar and do not know the difficulties under which Counsel labour in conducting their cases and how often faults are due merely to the earnestness of the Advocate in the interest of his client. I have noticed an occasional tendency in the Courts in this Province to be too ready to’ attribute impropriety of motive to Counsel. They sometimes fail to appreciate that an Advocate may be led in the heat of contest to indulge in conduct which he would not indulge in but for his zeal to safeguard the interests of his client. In any event judicial proceedings are better controlled by the exercise of dignity than by intemperance. So far as the refusal of the application for time is concerned, I find it impossible to say that the refusal indicates any bias in the mind of the Judge. It might have been better if the Judge had, as suggested, allowed two days time at once, inasmuch as in the end the Judge was able to adjourn the trial for that period. But it is clear that there were special reasons for refusing to adjourn the case for too long a period. In the first place there were several public servants summoned as witnesses from various districts who had been detained in Gaya for cross-examination at the request of the Counsel for the accused, and in the second place the Sessions Judge’s calendar was full. In these circumstances the learned Judge felt bound to refuse to adjourn the trial. Apart from the incident with Sir Ali Imam the record shows that the learned Judge throughout showed special consideration to the interests of the accused. I am unable to hold that there was any ground for a reasonable apprehension in the mind of the accused that he was likely to be prejudiced by reason of a bias in the mind of the Judge.
12. In these circumstances I agree that the application for transfer should be rejected.
