Patna High Court
Binode Behari Banerji vs Emperor on 13 December, 1923
Equivalent citations: 81IND. CAS.78
JUDGMENT Jwala Prasad, J.
1. These two applications are for the transfer of the cases from the District of Palamau to some other district.
2. The petitioner is accused m both these cases and has been charged by the complainants with having taken bribe m connection with his duties as a Civil Court Amin of the District of Palamau. The petitioner has referred in his application in Criminal Miscellaneous Case No 48 as to how his work done as a Commissioner in Partition Suit No. 51 of 1919 was appreciated by the Civil Court. He has also referred to Babu Ashutosh Ghose, a Pleader of Daltongunj, being on inimical terms with him, and to certain proceedings between the Judicial Commissioner and the Deputy Commissioner about the procedure to be adopted in partition cases. With these we are not concerned in the present case.
3. The allegations upon which the petitioner seeks to support his application for transfer are contained in paragraphs 8 to 10. In paragraph 8 it is said that the learned Deputy Commissioner went to Patan Police Station on tour on or about the 16th August 1923 and sent for Dwarka Singh and others from Palha about five miles from Patan; in paragraph 9 it is stated that the learned Deputy Commissioner after hearing them advised them to lodge complaints against the petitioner on charges of bribery; and in paragraph 10 it is mentioned that the learned Deputy Commissioner has also deputed Akhauri Dwarka Prasad Singh, a Sub-Deputy Collector, to make inquiries in all partition suits from 1916 onwards in which the petitioner acted as Commissioner with a view to find out whether there are allegation and evidence of briberyagainst the petitioner. Paragraphs 11 and 12 relate to the part taken by the Deputy Commissioner in the conduct of the prosecution, namely, the deputation of a Special Officer to conduct the prosecution against the petitioner and payment of cost to the prosecution witnesses. These are matters withinthe ordinary duties of the Deputy Commissioner as representing the Crown toconduct and look after the Crown prosecutions, and do not give rise to any ground for transfer.
4. Paragraph 13 of the petition states that "Daltongunj is a small place and rumour has been circulated that the Deputy Commissioner is taking a keen interest in the prosecution and will help every one who comes forward to prosecute the petitioner on a charge of bribery". This is not capable of any reply by the Deputy Commissioner, and in fact has not been replied to. It may be that a rumour of this kind lias been circulated, but the Deputy Commisioner cannot be responsible for a rumour of this kind, if any.
5. As to paragraphs 8 and 9 the reply of the Deputy Commissioner contained in Criminal Miscellaneous Case No. 48 of 1923 is as follows:
It is a fact that the Deputy Commissioner sent for Dwarka Singh and others when on tour at Patan Police Station in order to inquire why they had not presented the complaint which they had said that they would present a long time previously.
6. As to paragraph 10, the Deputy Commissioner's reply is "The Deputy Commissioner has caused investigation to be made only in cases with regard to which ho received specific complaints from aggrieved parties". These again docome within the ordinary duties of the Deputy Commissioner when complaints of such a nature were received by him.
7. Reading the allegations contained in the petition and the replies of the Deputy Commissioner, it seems that complaints were previously made to the Deputy Commissioner against the petitioner and when he went on tour he called for the complainants and inquired why they had not presented regular complaints against the accused, although a long time had expired since they had told the Deputy Commissioner that they would present such complaints. The Deputy Commissioner also seems to have received information against the petitioner having taken bribe in connection with his official duties and he has, therefore, caused an investigation to be made with regard to those complaints.
8. The petitioner has been Amin, as stated by him, for about 25 years and as such he must have worked in a number of cases in that dictrict. An enquiry of the nature ordered by the Deputy Commissioner would naturally lead to a number of complaints against the petitioner and would create a sort of atmosphere unfavourable to him in that locality. On the one hand the Deputy Commissioner and the authorities are bound to take such steps as they consider proper in order to have those complaints properly investigated; on the other hand, the accused would labour under inconvenience that might arise in a matter of this kind and there would be a reasonable suspicion in the mind of the accused that the action taken by the authorities, though legitimate, would create prejudicial atmosphere against him so as to prejudice him in the defence of the case against him. In the interest of the prosecution also it is desirable that prosecution may not suffer from prejudices in favour of the accused, if any, that may be in that district on account of his long service of 25 years. Though the allegations made do not cast any imputations against the action taken by the Officer concerned, but the circumstances disclose a state of affairs that should be removed in order to give a fair and impartial and unprejudiced trial of the case against the petitioner.
9. It is difficult to lay down any hard and fast rule under which transfer should be made, for the circumstances of one case might differ from those of the other; but the principle underlying the decisions of the various cases go to establish that if there are circumstances in a case which raise a reasonable apprehension in the mind of an accused person that he would not receive fair dealings at his trial, the case should be transferred to a calmer atmosphere. The cases cited before me of Ram Kishen Das v. Emperor 17 Ind. Cas. 567 : 35 A. 5 : 10 A.L.J. 357 : 13 Cr. L.J. 823, Din Dayal Singh v. King-Emperor 58 Ind. Cas. 523 : 1 P.L.T. 522 : 21 Cr. L.J, 795 and Bans Gopal Pande v. Emperor, 24 Ind, Cas, 951 : 1 O.L.J. 271 : 15 Cr, L.J. 543 do not afford similarity of circumstances with those of the present case in all respects. In some of them the circumstmnces were very grave. In others they were mild, and in the case of Bans Gopal Pande v. Emperor 24 Ind, Cas, 951 : 1 O.L.J. 271 : 15 Cr, L.J. 543, the transfer was allowed upon the following finding:
10. "A great number of allegations have been made in the petition for transfer which has been put before me. Most of these allegations were contained in a petition which was previously presented to this Court and rejected by the First Additional Judicial Commissioner on the 11th of March last. However, Mr. Oehme has adduced some new argument in support of his case today andI think, having regard to the fact that these proceedings were initiated under the orders of the District Magistrate and having also regard to the fact that one of the important witnesses for the prosecution is a Deputy Magistrate attached to the Rae Bareli Dictrict, it will be advisable to have the case removed to a calmer atmosphere". I have already said that all the circumstances of those cases are not applicable to the present one. I have, therefore, taken into consideration the circumstances of the present case which I have set forth above and I think that they justify the transfer of the present case to be tried in a calmer atmosphere. The learned Counsel on behalf of the petitioner has very rightly said that he does not impute anything against the authorities concerned in the enquiry and investigation of the effences against the petitioner and that they did what they are legitimately required to do in the performance of their official duties. I agree with the learned Counsel in this view. I also agree with him that nonetheless the circumstances disclosed in the present case have raised a reasonable ap prehension in the mind of the accused that his trial at Palamau will be prejudiced.
11. Palamau is not far off from Gaya, and I would, therefore, transfer these cases to the District Magistrate of Gaya who will try them himself or depute some other Magistrate competent to try them.