1. Undue delay in trial, coupled with the Magistrate's failure to control the proceedings and enforce the attendance of witnesses, amounts to a denial of fair trial. 2. Examination of the accused under Section 342 of the CrPC should be conducted by the Court on its own initiative, not based on questions supplied by the prosecution.

Imam, J.

1. This is an application to quasi i certain proceedings pending against the petitioners, or, in the alternative to transfer the case from the file of the present Magistrate.

2. So far as the matter of quashing is concerned, the learned Counsel for the petitioners did not press that matter so earnestly as the question of transfer, because if he succeeded on the question of transfer he would place the submissions on behalf of the accused before the Court below in support of the contention that the accused should have been discharged, as there was no evidence upon which the charges could have been framed against them.

3. On the question of transfer Sir Sultan Ahmad has based his submissions for transfer largely on the ground that the present Magistrate has been very slow in his work and that he did not enforce his judicial authority to secure the attendance of witnesses in time and allowing the case to take an unreasonably long time for disposal. He further pointed out that when the accused were examined by the Magistrate under Sec.342, Criminal P. C., the Magistrate put certain questions to the accused which were given to him in writing by the prosecution and that the Magistrate put several questions simultaneously to the accused and demanded answers for all of them at one time, with the result that the accused were confused and could not reply to the questions put to them. He further made reference to an interpolation in the order-sheet of the Magistrate, order No. 249, dated 24-7-1953. If these various matters were taken into consideration the cumulative effect of them would be for the accused to entertain a reasonable apprehension that they would not receive a fair trial at the hands of the Magistrate.

4. On 14-11-1949, a first information report was lodged against the accused involving serious offences. On the 12th of May, 1951, an application for the withdrawal of the case was filed before the Magistrate and permission was granted. The accused, however, were immediately arrested on the same day because it was discovered that there was some technical defect in the application for the withdrawal of the case. On 30-8-1951, the Inspector of Police of Patna Sadar submitted a fresh charge-sheet against the accused and the District Magistrate of Patna took cognizance of the offence on 1-9-1951. It is unnecessary to take for the purpose of this application as to what transpired between 1-9-1951 and 8-12-1951. On 8-12-1951, however, summonses to witnesses were issued and the idea was to examine certain number of witnesses per day.

One of these witnesses was Phulena Singh. The hearing of the case before the Magistrate commenced on 4-2-1952, and it has not yet ended. The magistrate adopted the procedure for enquiry before commitment but ultimately he decided not to commit the case to the Court of Sessions but to try it himself. He consequently discharged some of the accused persons and framed charges against others on 10-8-1952. It will be apparent from the few dates which I have given that even if one "takes the starting date for the present proceedings against the accused as 1-9-1951, it is a matter of great concern, if not alarm, that criminal proceedings against an accused persons should be so long delayed before a Magistrate. An examination of the ordersheet clearly discloses undue delay in the disposal of the case and instance after instance of witnesses not appearing Before the Court on the dates fixed.

Obviously, the Magistrate does not appear to have been able to control the proceedings and appear to have given undue latitude to witnesses who disobeyed the summons of the Court. In this respect at any rate, in my opinion, the Magistrate has given evidence of his incompetence in dealing with the proceedings before him. The case of the witness Phulena Singh was particularly mentioned and I am satisfied on what I have seen of the record that if the Magistrate had really taken a strong attitude in the matter the