Patna High Court
Ramyad Singh And Ors. vs Emperor on 7 February, 1930
Equivalent citations: 124IND. CAS.846, AIR 1930 PATNA 337
JUDGMENT Macpherson, J.
1. These four applications in revision are analogous and have been heard together.
2. The petitioners have been convicted under Section 193 of the Indian Penal Code in the following circumstances. There was a case of rioting in 192/ in which Audh Singh said to be the gomashta of Bandhugani was an absconder. On his arrest he was tried at a supplementary trial in April 1929. The witnesses to the occurence stated that Audh Singh gomashta of Bandhuganj, had given orders to assault, but that he was not the Audh Singh in dock, wh©, therefore, had to be discharged as no one identified him. The witnesses were placed on trial for perjury and were tried before three different Magistrates. One Magistrate acquitted the accused on the cases before him, another convicted the several accused whom he tried and on appeal the convictions were upheld by the Sessions Judge of Gay a, while the present petitioners came before a third Magistrate, and they having been convicted, have preferred appeals which are at present pending before the same Sessions Judge. The petitioners now apply under Section 526(1) of the Code of Criminal Procedure for transfer of their appeals from the file of the Sessions Judge of Gaya to some other Sessions Court for trial.
3. It is explicitly not contended that a fair and impartial trial cannot be bad before the Sessions Judge. What is expressly relied on is not Clause (a) of Section 526 (1) but Clause (e) on the plea that an order of transfer "is expedient for the ends of justices. It is, however, pointed out that the witnesses agains". petitioners are much if not quite the same as in the cases in which he has already upheld convictions in appeal, and it is urged that in view of the conclusions already arrived at by him in appeal on the evidence of the witnesses, the present petitioners are under a reasonable apprehension that they may not have a fair trial. This plea really falls under Clause (a) and this is manifestly inconsistent with the suggestion that the application is made under Clause (e) only. Now the judgments in appeal were delivered on the 12th December, 1929, and the petitioners were convicted on the 13th January, 1930. It, therefore, became important to consider whether the Magistrate, who convicted the petitioner, had in his mind the appellate judgment delivered nearly a month before. A perusal of both judgments, however, fails to elicit any indications that the Magistrate in any measure went outside his own record or had in contemplation either the appellate judgment in the second batch or the judgment of acquittal in the first batch. Then it is difficult Clause (e) can apply. It may be granted that the learned Sessions Judge does not feel himself in any difficulty; otherwise he would have moved this Court to transfer the appeals from his file. That is one ground for considering that Clause (e) does not apply. The precedents are also against the contentions of Mr. Akbari, It was held in Joharuddin Sarkar v. Emperor 31 C. 715 : 8 C.W.N. 910 : 1 Cr. L. (Sic) that the fact that the Presiding Officer had tried and convicted one set of accused did not disqualify him from conducting the supplementary trial when another batch of accused was put on trial on identically the same set of circumstances. It is urged by Mr. Akbari that in a supplementary trial other matters have to be considered besides those which are before decision in the original trial. But the chief new point would be whether the individual accused were participants in the riot assuming that the riot was proved in the supplementary trial. In the appeals of each of the petitioners the new question will similarly be assuming that it is proved that the Audh Singh in the dock was the Audh Singh who had given orders to assault whether the petitioner had the knowledge and intention requisite to bring him within Section 193. There does not appear to be any difference in principle between the two cases.
4. It was held in Rajani Kanta Dutta v. Emperor 3 Ind. Cas. 88 : 36 C. 904 : 10 Cr. L.J. (Sic) that while it is sound doctrine that a reasonable apprehension in the mind of an accused that he will not have a fair trial is a sufficient ground for transfer, yet is applying the doctrine regard must be had to the circumstances in each case, and the mere fact that in another case, on other evidence, the Judge has come to a particular conclusion is not in itself a sufficient ground for transfer. There the Sessions Judge had actually dealt in his judgment in the original trial specifically with the offence in respect of which the petitioner before the Court was charged at the supplementary trial and had expressed [an opinion unfavourable to the petitioner. On the other hand, so far as the petitioners are concerned, no opinion whatever has been expressed by the Sessions Judge in regard to any of them. In the earlier appeals he confined himself strictly to the record in respect of the particular appellant before him. The case of the petitioners does not come within the provisions of Section 526(1). I cannot better set out the position than in the words of the learned Judges in the case last cited:
We feel confident that the learned Sessions Judge, in dealing with the case now under consideration, will not allow his mind to be any way influenced by any evidence that was adduced before him in the previous case or any opinion which he then formed on that evidence, and that he will deal with the case without any kind of bias by reason of his decision in the former case.
5. There being no reason for the transfer of the appeals of the petitioners, these Rules are discharged.