Jafar Husain v. Emperor — 1914 DIGILAW 110 (ALL)

JUDGMENT : 1. This is an application under Section 526 of the Cr PC, praying that the proceedings pending against the applicant in the Court of the Joint Magistrate of Meerut be transferred to a Court in another district. In the affidavit filed on behalf of the applicant, the grounds on which the transfer is sought are given. It appears from the said affidavit that the applicant, Jafar Husain, is in the service of Agha Saiyad Haidar Shah as mukhtar and that there is a long standing feud between his master and one Raghunath Prasad, both of whom are zamindars of Barout. Ever since 1894 disputes have been going on, between the servants of the two zamindars, which have led to legal proceedings in Court against them. On 24th January of this year the applicant was arrested by the Circle Inspector without any warrant and though two respectable sureties were offered the police refused bail. Late at night about 9 p.m. on 24th January 1914 the applicant was put up before the learned Joint Magistrate, who was out in camp at the time, A sum of Rs. 500 was demanded for bail in cash and a personal bond of Rs. 200, and his case was fixed for 3rd February, 1914. The money was at once tendered but was not accepted as there were no means in the camp of the Joint Magistrate to keep the money. The applicant was directed to take steps to have the money deposited in the treasury. It was deposited the next day. But the applicant was not released till 27th January 1914. After his release on his way home that day a Police constable orally informed him that his case would be taken up the next day. The applicant attended Court the next day, i.e., on 28th January 1914 and remained there the whole day, but his case was not taken up. He was informed that his case would be taken up on 3rd February 1914. 2. Mr. Abdullah Shah appeared on behalf of the applicant and informed the Court that his client was too ill to attend Court, and in support of his statement tendered in evidence a medical certificate signed by the Assistant Civil Surgeon of the district. He was informed that his case would be taken up on 3rd February 1914. 2. Mr. Abdullah Shah appeared on behalf of the applicant and informed the Court that his client was too ill to attend Court, and in support of his statement tendered in evidence a medical certificate signed by the Assistant Civil Surgeon of the district. The learned Joint Magistrate would not accept the Assistant Surgeon's certificate and directed that a certificate of the Civil Surgeon should be tendered the next day in support of the statement that Jafar Husain was too ill to attend Court. On 4th February 1914, a medical certificate signed by a European officer of the Indian Medical Service, who was at the time serving in the 28th Pioneers at Meerut, was tendered in evidence. The certificate was to the effect that the applicant had been examined by the doctor and was found to be incapable of attending Court that day and for a week to come. 3. It is said that no certificate could be obtained from the Civil Surgeon; that he was either not present in the station that day or could not be found. The learned Joint Magistrate did not accept the certificate produced on behalf of the applicant and issued a warrant of arrest against him at once and made it over for service to the police. The applicant was accordingly brought to Court by the police, and the Joint Magistrate and some of the Police Inspectors went to the carriage in which the applicant was brought and found him really ill. He was allowed to return home and was ordered to present himself in Court on 9th February 1914 and the bearing of the case was fixed for 10th February 1914. During this time nothing was said to the applicant about the charge on which he was arrested or about which he was going to be put on his trial. On 10th February 1914 the case was taken up by the learned Joint Magistrate and a notice, presumably under Section 112 of the Cr PC, was read out for the first time to the applicant. That notice was to the effect that information had been received through the police that the applicant was a habitual extortioner and was therefore called upon to show cause why he should not furnish security. That notice was to the effect that information had been received through the police that the applicant was a habitual extortioner and was therefore called upon to show cause why he should not furnish security. In reply to the notice the applicant said that he was not ready to proceed with the case and wanted an adjournment to engage counsel and to prepare his defence. The request of the applicant was not acceded to and the evidence for the prosecution was begun at once. Fourteen witnesses for the prosecution were examined that day. The applicant was asked to cross-examine them. But he said that he could not do so and would like to reserve his cross-examination until he could engage a counsel and again asked for an adjournment. The learned Joint Magistrate refused the request and ordered the applicant to put in a list of his witnesses, Jafar Husain produced a list of documents and witnesses the next day. 4. The learned Joint Magistrate declined to send for the documents and struck out the names of some of the witnesses and asked the applicant to deposit a sum of Rs. 100 before any summons could be issued for the defence witnesses. When the proceedings against the applicant were at this stage, he came up to this Court and filed the present application. The learned Joint Magistrate has submitted an explanation of the facts alleged in the affidavit of the applicant. Some of the main allegations made in the applicant's affidavit are not denied. It is not denied that the applicant was arrested without a warrant, that his medical certificates were not accepted and a warrant was issued for his arrest and production in Court on 4th February 1914, that the applicant was not informed of the charge until 10th February 1914, that his request to reserve cross-examination was disallowed, and that his prayer as to the production of documents was rejected and the names of some of his witnesses were struck out and as to the rest a sum of Rs. 100 was demanded before sommonses could be issued to them. These facts do not in any way show bias or prejudice in the mind of the learned Joint Magistrate against the applicant. 100 was demanded before sommonses could be issued to them. These facts do not in any way show bias or prejudice in the mind of the learned Joint Magistrate against the applicant. But they, taken with the fact of the institution of several criminal proceedings against the applicant prior to the present proceedings, would be likely to give rise to an apprehension in his mind that he is not likely to have a fair and impartial trial in the Court below. I think that under the circumstances of this case it is advisable be make an order of transfer. I accordingly allow the application and order that the proceedings now pending against the applicant in the Court of the learned Joint Magistrate of Meerut be transferred be the Court of the District Magistrate of Muzaffaragar, who will either try the case himself or make at over for trial to some other Magistrate subordinate be him.