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Criminal Miscellaneous No. 378; T of 1972, decided on 27th September 1972.

, S. 526-Transfer of criminal cases-Magistrate admitting his tone to have been harsh, but that It was "artificial" (probably meaning "feigned") and for maintaining decorum of Court since accused was shouting in a loud contemptuous voice-Held, losing temper by Magistrate under circumstance not justified-Such circumstance could create appre hension in mind of accused of not getting justice-Case transferred to another Court.

Muhammad Sadiq for Petitioner.

Nemat Khan assisted by Walayat Umar for the State.

M. Sair Ali for the Complainant.

Meraj Din alias Maja, who is being proceeded against under section 307, P. P. C. in the Court of Ch. Abdul Latif, Section 30 Magistrate, Lahore, has moved for the transfer of this case under -section 526 of the Code of Criminal Procedure. His petition was forwarded by Deputy Superintendent of Camp Jail, Lahore to this Court.

2. It is alleged that the case against the petitioner was fixed for recording evidence on 15-8-1972. However, the Magistrate could not take it up and it was adjourned to 17-8-1972. On the last mentioned date, when the case was called, the petitioner informed the Magistrate that he was suffering from kidney trouble. He also informed the Magistrate that he had not been able to contact his lawyer. He requested for a short adjournment. However, the Magistrate abused him and began to record evidence. It was then that the petitioner requested him to stop proceedings as he intended to ask for transfer of the case.

3. The transfer has been sought on the following grounds:-

(1) Through long adjournments were granted in cases fixed for 15-8-1972, in which evidence could not be recorded, the Petitioner's case was adjourned for two days ;

(2) The petitioner was abused by the Magistrate ;

(3) The Presiding Officer was taking personal interest in the case ;

(4) The Magistrate asked the complainant to put the challan in Court and finish the plea of bail of the petitioner in the High Court.

4. A copy of the petition was sent to the Magistrate. He was asked to send his comments. When the petition was taken up on 7-9-1972, one Muhammad Sadiq, who claimed to be an attorney of the petitioner, appeared. However, after the perusal of the comments received from the Magistrate, the petition was admitted and notice was issued to the State.

5. In response to the notice, Mr. Nemat Khan has appeared, on behalf of the State. I have heard the attorney of the petitioner and learned counsel for the State. Although no notice has been issued to the complainant, his counsel appeared voluntarily and he too has been heard.

6. I am not inclined to agree with the petitioner's contention that the Magistrate acted wrongly in adjourning his case from 15-8-1972 to 17-8-1972. When nine witnesses were present on 15-8-1972, it was but natural that the case should have been taken up on the following day, if it could not be taken up on 15-8-1972. In fact the Magistrate has made it clear in his comments that he adjourned the case to 16-8-1972, but at the request of the accused, he adjourned it to 17-8-1972. So there is no force in the first contention raised by the petitioner.

7. I am not inclined to agree with the petitioner that he was abused. I am not inclined to agree with him, that the Magistrate is taking personal interest in the case. However, after careful perusal of the parawise comments of the Magistrate, I am: inclined to hold that the petitioner would have an apprehension in his mind, that he would not get fair trial at the hands of the learned Magistrate. The Magistrate has admitted that when examination-in-chief of the first prosecution witness was completed, he asked the accused as to whether he had to ask any question in cross-examination. If the learned Magistrate, as stated by him earlier in the comments, had agreed to adjourn the case in the absence of the Advocate of the petitioner for further cross examination, in my opinion, he had no occasion to ask the petitioner to cross-examine the witness. However, this is besides the point, but what has actually affected my mind. is the following part of the explanation sent by the Magistrate:--

"After completing the examination-in-chief of P. W. 1, the accused was formally asked to whether he himself wanted to cross-examine the witness or the cross-examination should be reserved for his counsel. But the accused shouted at the top of his voice that he had no confidence in this Court and he did not want to be tried by this Court as this Court had not waited for his counsel. Although he had been told earlier that the cross-examination would be reserved and once again he was reminded about that but he continued shouting. With a view to silencing him and maintaining the decorum of the Court, I warned him and ordered him to keep quiet. And I remember that artificially I was in rage. Even then I was not prejudiced against the accused."

I may also point out that in para. 6 (ii) the learned Magistrate has stated that he did not call bad names to the petitioner, but he did warn him and added :-

"I must admit that my tone was harsh but that too was artificial. That was done for maintaining the decorum of the Court as the accused was shouting in a loud voice which was contemptuous also."

Although I have no doubt, that if the petitioner was misbehaving, the Magistrate could have taken action against him, he had no business to lose his temper artificially'. I have yet to understand how a person loses his temper artificially'. This would create an apprehension in the mind of the accused, that he would not get justice at his hands. Thus this petition is allowed and it is directed that the learned Magistrate shall send the file of the case to the District Magistrate, who shall make it over to any other Magistrate, serving under him, competent to dispose of the same.

Petition accepted.

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