JUDGMENT

Bennet, J. - This is an application on behalf of one Nek Ram asking that either a charge framed against him should be cancelled or that the case should be transferred to another Magistrate. The facts of the case, so far as relevant to this application, are shown by the record and an affidavit. On 27th July 1930 it is admitted that Birendra, a young man of twenty years, who is also an accused, took two rupees and went to a shop of Ram Babu at a short distance from the shop of the applicant Nek Ram. Birendra is a servant of Nek Ram and works in his shop which is for drugs. Ram Babu found that the two rupees were false and he handed the boy Birendra over to the police. The defence is that two customers had come to the shop of Nek Ram before it was open at twelve o'clock and that these customers had given the two rupees asking that the boy Birendra should bring change, and that these two customers subsequently disappeared when Birendra was arrested and a crowd collected. It was also the defence of Nek Ram that he was not present at the shop at the time when Birendra left the shop to get the Rs. 2 change. It is of considerable importance in the case to see at what stage the story about the two customers was put forward. In the police diary it was stated by Tulla, a witness for the prosecution, as follows:

Yehi rupie the jo Birindar Kumar ne rezgari ke lene ki lie mudai Ram Babu he die the aur un logon he kahne par ke yeh kharab malum hote hain wuh kahan se laya hai to kaha ke do gahak ae hain unko bhang kharidna hai, rozgari ki unko zarurat hai.

2. This shows that, according to Tulla, Birendra put forward the story of the two customers at the time of his arrest. When Tulla gave evidence before the Magistrate he stated:

I did not question Birendra. Birendra did not tell ma that the change of two rupees was wanted for two customers who wanted some bhang. I did not say this to the Sub-Inspector.

3. When this statement was made in cross-examination the defence counsel asked for a copy of the statement in the diary in order to use it to contradict the witness. The Magistrate makes the following statement in regard to this incident:

It is true that alter reading Tulla's statement I allowed a copy of the same to be given to the accused, but immediately after I was asked by the Prosecuting Inspector to reconsider my order on the ground that there was nothing in the statement to call for a contradiction, I carefully went through the statement again and found nothing contradictory therein. This was the reason why I refused to issue a copy thereof.

4. I am quite unable to understand the mental process by which the Magistrate arrives at the conclusion that there is no contradiction between the statement of Tulla in the diary and the statement of Tulla in Court. To my mind it is obvious that there is a very material contradiction. That being so, I consider that the Magistrate was entirely wrong in refusing to grant the copy of the diary. The question arises whether this action of the Magistrate was due to some mental incapacity on his part to understand whether there was a contradiction or not or whether it was due to some other cause. I do not consider that a Magistrate of some experience who knows Urdu as his mother tongue would be unable to appreciate the fact that there was a contradiction. Accordingly I consider that the Magistrate was influenced by some other cause and I consider that he must have made this order because he was in some way prejudiced against the [accused. That being so, I consider that the application for transfer is well founded, and accordingly on this ground [alone 1 consider that there is sufficient reason to transfer this case. Section 162, 'Criminal P.C., is imperative and states as follows:

Provided that, when any witness is called for the prosecution in such enquiry or trial, whose statement has been reduced in writing as the aforesaid, the Court shall, at the request of the accused, refer to such writing and dir