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Application for transfer decided on 24th September, 1951.

Criminal Procedure Code (V of 1898), S. 526‑Case remanded ‑Magistrate increased amount of bail‑bond without good reasons-Magistrate also suggested to A D. M. to transfer case from his Court as he had once given final finding‑Transfer not mandatory but ordered in special circumstances of case.

The rule is,‑not mandatory to transfer a case, from the Magistrate who had expressed his final opinion about it and be was subsequently 'required by an Appellate Authority to hold re trial of it. But, this principle is governed by the stringent condi tion that the Magistrate should not only feel that he had purified his mind of ‑his previous conclusions about the guilt of the accused but also that his conduct did in no way impair the confidence of the accused in him. The fundamental principle of justice is that Magistrates should not only preserve the outward appearance of impartiality but also to avoid the internal ‑contami nation from bias. If these conditions existed, there was no bar for a Magistrate to hold the re‑trial of a case. In the present case, the Magistrate increased the amount of bail‑bond without good reasons. Further, in reply to the A. D. M., the Magistrate suggested that the case should be transferred from his Court, because he had once given his final finding about it. These circumstances indicated that the Magistrate had found it hard to efface the impressions of his previous judgment and he had cast the shadow of his mind when he doubled the amount of bail‑bond without assigning any reason for it. Naturally, the accused. petitioner felt the impact of his biased attitude and he apprehended that he shall not have fair trial from his Court.

166 I. C. 466, 179 I. C. 819 and 103 I. C. 103 referred to.

---‑The allegations of the petitioner are that the accused were convicted under section 7 of the Essential Commodities Act and were sentenced to one year's rigorous imprisonment by Magistrate 1st Class, Allahabad. Upon appeal to the Sessions judge the case was remanded for re‑trial to the same Court. It is further alleged that when the accused appeared before the Court after the remand order, the Magistrate enhanced the amount of bail‑bond from Rs. 1,000 to Rs. 2,000 and 'told the accused that he would double the term of imprisonment on their convic tion. The petitioner stated that he was afraid that he would not get fair trial under these circumstances and that the file may be transferred to some other Court.

In 166 I. C. 466, it was decided that a Magistrate who had expressed his final opinion should not try the same case over again. In that case the following observation cited from the judgment of Bucknill J. in Mahadeb Marwari v. Kishun Lal was quoted and it elucidated the general principle of law.

" That an endeavor may be made to keep the mind entirely free from bias, and to eject from it any preconceived ideas which may have been formed in general by what has taken place at the earlier trial. But those are after all counsels of perfection, and, I am bound to say, that if I was in the ‑position of having been convicted and sentenced of an offence by an individual, I should feel the greatest apprehension if my case was remanded to the same person for a re‑trial." ,

Similar view was expressed by Skemp J. in Kanwar Sain v. Emperor reported in 179 1. C. 819. In another case jai Lal J. reported in 103 I. C. 103 (28 Cr. L. J. 647) took different view, by holding that there was no hard and fast rule. I am .of opinion that the rule is not mandatory to transfer a case, from the Magistrate who had expressed his final opinion about it and he was subsequently required by an Appellate Authority to hold retrial of it. But, this principle is governed by the stringent condition that the Magistrate should not only feel that he had purified his mind of his previous conclusions about the guilt of the accused but also that his conduct did in no way impair the confidence of the accused in him. The fundamental principle of justice is that Magistrates should not only preserve the outward appearance of impartiality but also to avoid the internal conta mination from bias. If these conditions existed there was no bar for a Magistrate to hold the re‑trial of a case. In the present case, the Magistrate increased the amount of bail‑bond without good reasons. Further, in reply to the A. D. M., the Magistrate suggested that the case should be transferred from his Court, because he had once given his final finding about it. These circumstances indicated that the Magistrate had found it hard to efface the impressions of his previous judgment and he had cast the shadow of his mind when he doubled the amount of bail -bond without assigning any reason for it. Naturally, the accused petitioner felt the impact of his biased attitude and he appre hended that he shall not have fair trial from his Court. Under these circumstances I am constrained to transfer this case to the Court of Mr. Alvi, Magistrate 1st class, Ahmadpur East.

Announced

K. M. A. Petition accepted.

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