JUDGMENT

Niamatullah, J. - These are two applications for transfer of two cases, one pending in the court of the joint Magistrate Bareilly, and the other in that of the City Magistrate of that District. The case pending in the former court is one u/s 60-A of the Excise Act against the applicant Bashir-ud-din, the other is one under Sections 352 and 352. Indian Penal Code, against both the applicants, Bashir-ud-din and Nizam-ud-din, who are brothers.

2. On the 12th July, 1931, the person of Bashir-ud-din was searched for cocaine by the Police about 10 p.m. at a public place. This is alleged to have led to a scuffs between the applicants on the one side and some Police Constables on the other. It is not necessary for the purposes of these applications to describe in detail the events which happened on that occasion, Subsequently Bashir-ud-din was sent up for trial for an offence under the Excise Act, before the Joint Magistrate and both the applicants were sent up to the court of the City Magistrate for an offence under Sections 332 and 225, Indian Penal Code, as already stated. Though the two offences are alleged to have been committed in almost the same transaction, the arrangement of work in the district necessitated the two cases being laid before two different courts.

3. The offence u/s 332, viz., voluntarily causing hurt to deter a public servant from his duty, is reliable, to is an offence u/s 225, unless the person to be apprehended or attempted to be rescued, is charged with, or liable to be apprehended for an offence punishable with transportation of life or imprisonment for a term which may extend to ten years. To clear the ground, it may be stated at once, that the applicants were charged with a minor offence u/s 225 referred to above as they were alleged to have offered resistance to the apprehension of a person (Bashir-ud din) charged with an offence u/s 60-A of the Excise Act, which is punishable with not more than two years rigorous imprisonment. It follows that neither of them was accused of a non-bailable offence. Accordingly they were released on tad by the Police who submitted a charge sheet on the 17th July, 1931, in the case under Sections 33a and 225. The City Magistrate allowed them to remain on bail by an order dated the 18th July, 1931.

4. To describe the subsequent events in chronological order, it appears that the statements of two prosecution witnesses had been recorded u/s 161 and the accused applied in the 3rd August, 1831, for copies of such statements, and in, the alternative, for inspection thereof, for the purpose of cross examination of those witnesses. This application was refused. The evidence for the prosecution was finished on the 6th August, 1931, and the case was fixed for 14th August and subsequent days for defence. An application was made on behalf of the accused on the 18th August 1931, for summonses to the witnesses whom the defence proposed to examine. The Magistrate refused to summon four witnesses On the same date the District Magistrate passed an order on the Police report cancelling the bail. The applicants were arrested on the 14th August, 1931. The applicants moved the Sessions Judge for bail re-presenting that the circumstances in which they had been re-arrested had not been made known to them The Government Pleader intimated that the applicants had been arrested in proceedings u/s 107 Criminal Procedure Code. This was on the 21st August, 1831, which is a material date as will hereafter appear. The learned Sessions Judge refused to interfere by an order of the same date. Proceedings u/s 107 Criminal Procedure Code, were started on a Police report dated the 21st August 1931, which alleged that the applicants had threatened certain witnesses for prosecution and were likely to commit a breach of the peace. Two applications were then made to this Court for transfer of the cases to the court of some other Magistrate out-side the District of Bareilly. The affidavit filed in support of