JUDGMENT
Mitter, J.
1. This is an application under Section 526, Criminal P.C., on behalf of Satindra Nath Sen and 13 others for transfer of certain proceedings that are pending against them under Section 110, Clauses (e) and (f), Criminal P.C. from the file of the District Magistrate of Barisal before whom those proceedings are now pending.
2. The proceedings, when they were first started, were being heard by a Magistrate of that District, Mr. B.R. Sen, and an application was made to this Court for transfer of these proceedings from the file of Mr. Sen to the file of some other Magistrate in the district, to this Court. That application was heard by my learned brothers C.C. Ghose, J and Jack, J., on 17th July 1929, and the learned Judges said in that case that having regard to the peculiar circumstances of the cases in which the present accused had been involved and in order to allay whatever suspicions or apprehensions might exist in the minds of the petitioners it was desirable that the case should be transferred from the file of Mr. Sen to the file of Mr. Hutchings, the District Magistrate. It was pointed out in that judgment that as against Mr. Hutchings nothing had been suggested and nothing could be suggested and the learned Judges were satisfied that if the case went to him, and was tried by him from the point which had been reached before Mr. Sen, adequate justice would be done to the accused. In that view, the learned Judges directed a transfer of the proceedings to the file of Mr. Hutchings. Mr. A.K. Basu, Government Counsel who is now appearing on behalf of the Crown was also then representing the Crown and he assented to that order of the learned Judges, dated 17th July. The matter was, accordingly being heard by Mr. Hutchings, the District Magistrate and up to now about 91 witnesses have been examined for the prosecution and cross-examined. During the course of these proceedings it appears that Mr. Hutchings, the learned District Magistrate, gave out in the course of a conversation with Mr. N.R. Das Gupta, counsel for the petitioners, outside the Court that he had personal knowledge of certain matters in respect of which these proceedings had been initiated. I shall advert to these matters in detail later.
3. After this information was communicated by Mr. Hutchings outside the Court, to the learned Counsel, it appears that a petition was put in before the learned District Magistrate in which it was stated that the District Magistrate should not try the case and that the petitioners intended making an application for transfer to the High Court because of three reasons. It was said first that the learned District Magistrate had personal knowledge of certain incidents in the Barisal Exhibition, and some of the overt acts in connexion with that Exhibition which form some of the charges on which these proceedings under Section 110 are based. It was pointed out, in the second place, that the learned District Magistrate had outside knowledge in respect of incidents in connexion with the Laukati Union and he knew all the state of affairs in respect of that Union the incidents in connexion with which form the subject matter of some of the overt acts in respect of the Section 110 proceedings. It was further pointed out that the learned District Magistrate, in the third place, had acquired certain knowledge in connexion with the incidents the subject matter of controversy in the Section 110 proceedings from certain confidential report of Mr. Blandy, who was the previous Magistrate of the district.
4. The application which mentioned these facts was presented to the District Magistrate who directed the application to the filed. Subsequently on the basis of these facts which the petitioners say have been revealed by the District Magistrate himself, the petitioners feel that the case had better not be tried by the learned District Magistrate.
5. Mr. Chatterjee appearing for the petitioners has made it plain to us that he has nothing to say personally against the District Magistrate but he contends that having regard to the facts disclosed by the District Magistrate himself in the course of these proceedings his client’s susceptibilities are moved in respect of this, namely, that even at this stage it is better that the learned District Magistrate should not try this case with the outside knowledge in respect of some of the incidents in his mind.
6. The matter was heard on a previous day when the Deputy Legal Remembrance, Mr. Bhattacharya appeared for the Crown and Mr. Chatterji offered that if the Crown gave up the charges with regard to the Exhibition and with regard to the Union Board he would not press for a transfer of the case from the district. Mr. Bhattacharya put himself in communication with the District Magistrate and today we have heard Mr. A.K. Basu, Government Counsel, who now appears on behalf of the Crown. Mr. Basu is unable to agree on behalf of the Crown to give up the charges in respect of the Exhibition and, with regard to the incidents connected with the Laukati Union, Mr. Basu says that he is prepared to stand by the offer made by Mr. Bhattacharya that the Government was willing to give up this charge. To this, however, Mr. Chatterji does not agree. We have, therefore, now to consider this application for transfer on its merits.
7. It is stated by Mr. Basu that this transfer application should not be allowed in view of the fact that it was at the suggestion of Mr. Chatterji that the case was transferred to Mr. Hutchings and that Mr. Basu told the Court at that time that there was no officer in that district who was more intimately connected with the matter than Mr. Hutchings and who had a full knowledge of the circumstances. It is said, that Mr. Chatterji agreed to a transfer to Mr. Hutchings and it is argued on behalf of the Crown that it does not lie in the mouth of the petitioners to have the case re-transferred from the file of Mr. Hutchings, more particularly when the prosecution case has almost come to a termination, so far as the evidence of witnesses is concerned. On the other hand, it is submitted on behalf of the petitioners that they are making this application as they are compelled to make it in view of the revelations, very candidly made by the learned District Magistrate himself both in respect of what was said to counsel as well as in the explanation which has been read to us by Mr. Basu. It is necessary to refer to particular parts of the explanation in order to consider whether in view of what has been said here, is it or is it not desirable that Mr. Hutchings should further deal with these proceedings. The learned District Magistrate says with regard to the Barisal Exhibition thus:
I had no connexion officially or unofficially with the Barisal Exhibition in January 1929, although at the time I was holding the post of Additional District Magistrate, Barisal, I had no connexion with the organization of the Exhibition nor with its policy or with the policy of the District Magistrate towards it. I did, however, visit it as a spectator on many occasions and I observed the following incidents related by witnesses in Court: I saw young persons picketing on the road outside the exhibition and I saw the persons lying down to prevent the entry of the public through the main exhibition gate. I also walked up and down the outside exhibition gate to see that the methods adopted by the picketters did not result in an affray. In short, I observed the general methods adopted by the picketters but I had no knowledge from my own observation of the identity of any of the persons who took part in the picketting or by whom they were directed or what their motives were. I can say that from a conversation with persons who had knowledge of these things, I came to know that the picketters were organised and controlled by Satin Sen’s party and eventually by Satin Sen himself. I also heard but did not observe that they had used offensive language to members of the public including ladies and there were at times considerable apprehensions that their actions might lead to affrays or even serious rioting.
8. With regard to the exhibition, the learned District Magistrate further said:
I likewise recall and know from personal observation that after the exhibition special patrols were placed along the roads for the protection of officials and others. I did not issue the orders for these patrols, nor can I say who did so. But I saw the patrols myself and was informed of their purpose. I likewise recall that on a certain day in January on which Satindra Nath Sen was arrested under Section 107, Criminal P.C. and that I was attending the Races when the District Magistrate requested me to hold myself in readiness to assist him in dealing with a procession which it was feared to force its way up to the exhibition, and I likewise recall that the District Magistrate informed me that he had ordered the arrest of Satindra Nath Sen under Section 107, Criminal P.C. as he had received information that respectable citizens of Barisal apprehended a serious breach of the peace unless such action were immediately taken. Of the sources of this information or what orders were actually issued, I have no knowledge.
9. So much is said by way of explanation by the District Magistrate in regard to the incidents of the Barisal Exhibition.
10. With regard to the Unions the following explanation is given by the learned District Magistrate:
The only extra judicial knowledge that I had of the Laukati incident arose from my study of a file regarding the spread of the Village Self Government Act in the District of Barisal. From this I gained the impression that there was opposition to Union Boards at a place called Laukati, that Satindra Nath Sen took part in the dispute, that on a certain occasion he came in conflict with the police and was reported both to have pushed or struck the police officers and to have received a slight injury himself. Of the details of the incident I have no personal knowledge. As regards the other Union Boards, my extra judicial knowledge of them may be said to consist in this that in the file above referred to, it was recorded that opposition to Union Boards existed in them and was strengthened by the action of volunteers and politically minded persons who fostered discontent with a view to embarrassing the District authorities, and that in several Unions, the Boards had to be either superseded or the operations of the Act suspended, This I trace from my recollection of a note based on reports of local officers at the time.
11. It has been contended on behalf of the accused that the explanation reveals at least with regard to the incidents connected with the exhibition that the District Magistrate had knowledge of the incidents which were the subject matter of the proceedings before him in connexion with the exhibition from outside sources; and as such it is not desirable on general principles which are accepted in all the Courts that the District Magistrate, having such outside knowledge, should try the case which is before him. It is true that the District Magistrate has not been cited as a witness with reference to these matters and as a matter of fact the learned Counsel has abandoned any such case. But at the same time it is difficult to shut one’s eyes to the fact that a Judge or a Magistrate, having outside knowledge in respect of matters which form the subject matter’ of proceedings before him, and having such (knowledge from conversations outside (the Court before the actual hearing of these proceedings commences, is in a position of some embarrassment in dealing with the case. The question is not in these cases as to whether the Magistrate, having such outside knowledge, will utilise that knowledge for the purpose of decision in this case, but the question is whether there can be any reasonable apprehension in the minds of the accused persons that the District Magistrate, having this outside knowledge before him may not be betrayed by such outside knowledge into taking a view which the evidence might not support. As I have said at the very outset, possibly Mr. Hutchings could have kept this knowledge out of the proceedings when he was dealing with these proceedings, but the point of view from which the transfer application has to be looked into is whether the susceptibilities of the accused persons are not reasonably moved by reason of the fact that the District Magistrate has, at least in connexion with some incidents, which form the subject matter of the proceedings, outside knowledge or knowledge which is not based on the evidence on the record.
12. In cases of this description, the rule which has been followed was laid down in a very early English case, the case of Sergeant v. Dale [1878] 2 Q.B.D. 558 which has been followed in this Court. It is pointed out in that case by Lush, J. that in matters like this:
The law 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.
13. This view of the learned Judge has been followed in several other cases in this Court to some of which reference might be made. For instance, the case of Girish Chandra Ghose v. Queen Empress [1893] 20 Cal. 857 and the case of Dupeyron v. Driver [1896] 23 Cal. 495.
14. We have been at pains to consider this question to which we have given our most careful consideration. Although it seemed at the outset extremely inconvenient to transfer the case which has almost come to a termination and in which as many as 91 witnesses have already been examined, yet we think, having regard to the incidents that have happened, and to what the District Magistrate himself has said that if would not be right to allow this case to remain in the file of Mr. Hutchings.
15. The question next arises whether this case should be transferred outside the district. In respect of this matter I asked Mr. Basu and he says that if any transfer is to be made at all, it should be made to the Court of Mr. Roxburgh, the Chief Presidency Magistrate, Calcutta. To this also the accused have no objection.
16. In these circumstances we direct that these proceedings now pending before the District Magistrate be transferred to the file of the Chief Presidency Magistrate, Calcutta, to be taken up from the point which it has reached in the Court of the District Magistrate.
17. The learned District Magistrate of Barisal will send the record of this case to the Chief Presidency Magistrate, Calcutta, with the greatest possible expedition.
S.K. Ghose, J.
18. I agree.
