JUDGMENT

Srivastava, J - This is an application for transfer of a criminal case under Section 526, Criminal P.O. On 6th March 1932, a riot took. place in village Ilmasganj in the Sultanpur District. Both the rival parties were prosecuted under Sections 143/342 and 147, I.P.C., and some other sections of the Penal Code. The hearing of one of the cases in the Court of the Assistant Sessions Judge, Sultanpur, was concluded on 17th August 1932. The applicants who formed the other party as well as the Government Pleader requested the Court that the judgment in the case which had been concluded might be deferred till the case against the applicants also had been heard. The request was refused although it is alleged that the learned Assistant Sessions Judge made the remark that if he came to a certain finding as to the truth or otherwise of the case for the prosecution in the case before him, it would not be possible for him to give a different finding in the other case. The learned Assistant Sessions Judge after a consideration of the evidence in the case, the trial of which was concluded, held that the applicants were the aggressors. He therefore acquitted the accused of the offence under Section 147, I.P.C., but convicted some of them under Sections 143/342, I.P.C.

2. The main ground urged in support of this application is that, by reason of the findings arrived at by the learned Assistant Sessions Judge in the case which has already been decided by him and more particularly in view of the expression of opinion made by him when he was requested to defer his judgment in that case, it will not be possible for him to approach the present case, in which the applicants are the accused, with an open mind. The learned Assistant Sessions Judge in the explanation which he has sent, states that the allegations made in the application with reference to himself are "generally speaking correct." He also says that he has no objection to the case being transferred from his file. His explanation shows that he had some special reasons for not postponing delivery of judgment in the cross-case, though he has not thought fit to mention them in his explanation.

3. The learned Assistant Government Advocate who appears to oppose the application has relied strongly on the decision of Asimaddi v. Govinda Baidya, (1897) 1 CWN 426. In this case it was held that a Judge was not incompetent to try a case of rioting, simply because he has tried and decided a counter rioting case and expressed an opinion; but in trying the one before him, he ought not to be influen-ced by the impression be may have formed in the other case, but ought to deal with it on its own merits and on the evidence adduced therein, quite independently ot the evidence which may have been produced before him in the counter case. I am not prepared to say that by reason of his having decided the counter case he is incompetent to try the present case. But I have little doubt in view of the findings arrived by him in the case already decided that he will find very embarrassing for him to arrive at different findings in the present case. We have also the statement of the learned Judge himself which has not been denied by him but has been accepted as correct, that it would not be possible for him to give a finding in this case different from that which he has given in the counter case. It follows from this that the learned Assistant Sessions Judge is not in a position to approach the present case with an open mind. The apprehension of the accused that they cannot have a fair and impartial trial in his Court seems therefore in the circumstances to be justified.

4. I accordingly grant this application and direct that the case of King-Emperor v. Maula Khan, be transferred from the file of the Assistant Sessions Judge of Sultanpur to the Court of the Sessions Judge of Fyzabad. The learned Sessions Judge might keep the case on his own file or transfer it to any competent Court subordinate to him.