JUDGMENT

Dalal, J C - This is an application for transfer of an inquiry prior to commitment from the Court of a Deputy Magistrate of the Bara Banki district. The fear expressed by the applicants who are being prosecuted is that they would not get justice in the Court of this Deputy Magistrate because the District Magistrate has formed an opinion as to the guilt of the accused.

2. The question in issue is whether a certain will is a forgery or not. The Sub-Registrar to whom it was submitted for registration suspected it to be a forgery, refused to register it and took proceedings which resulted in the District Registrar of Lucknow sanctioning the prosecution of all the persons connected with the will under Section 82 of the Registration Act. In his letter the District Registrar further suggested to the District Magistrate that he might consider the advisability of prosecuting some or all of these people under the Indian Penal Code. The intention of the District Registrar is not very definite, but I should construe it as a sanction for the prosecution of the accused persons under some sections of the Indian Penal Code, if there was evidence available for the purpose. If need were, the prosecution can obtain definite sanction of the District Registrar. On this question I give no opinion.

3. It is clear to me not only that the District Magistrate is acting extra-judicially but that the accused themselves desired him to do so. After the sanction by the District Registrar, one Pandit Dhara Nand, brother of the principal accused, Uma Nath, and a pleader of Bara Banki visited the District Magistrate and tried to prevail upon him to drop the prosecution. If the prosecution had been dropped there would have been no complaint, made of a judicial officer interfering with matters extra-judicially. To use the Vernacular it is not possible for a party to have it both ways, head he wins and tail he does not lose.

4. The District Registrar practically requested the District Magistrate to see to the collection of evidence and to the proper conduct of the prosecution of the accused persons. He was bound to do so and all that he has done was in the discharge of his extra-judicial duty. The inquiry is not being held in his Court and at the present day I am not prepared to believe that a Deputy Magistrate would be influenced by an opinion formed by a District Magistrate.

5. Finally the Deputy Magistrate has stated that he will not try the case himself but commit it for trial to the Court of Session. This is another reason why no interference is called for.

6. I dismiss this application.