Slandasamg v. Subramaniarh
1901Present: L. B. de Silva, J.
S. KANDASAMY, Petitioner, and C. SUBRAM ANIAM, Respondent
S. G. 469/61—Application for the transfer of M. C. Maliakam 10615to be heard by a Judge other than the Addl. District Judge and
Addl. Magistrate, Jaffna
Criminal procedure—Bias of Magistrate—Right of complainant to have case heard by adifferent Magistrate.
Where, in a criminal case, the complainant has reason to fear that he will notobtain an impartial and fair hearing from the Magistrate, it is open to him tomake an application for the hearing of the case to be taken up before a differentMagistrate.
I*. B. BE SILVA, J.—Kandaaamy v. Subratnaniam
^APPLICATION to set aside an order of the Magistrate’s Court,Mallakam.
S.G. E. Rodrigo, for the complainant-petitioner.
T.K. Curtis, for the accused-respondent.
October 16, 1961. L. B. ds Silva, J.—
The Complainant Petitioner has made this application for the hearingof this case to be taken up before another Magistrate on the ground thatthe learned Additional District Judge and Magistrate of Jaffna, who isalso Magistrate for Mallakam had been invited by the accused respondentto be the chief guest at a College dinner about a month prior to the datewhen he made the application before the Magistrate that the case beheard by another Judge.
The accused is the Principal of the College in question and the com-plainant is a teacher in that College. The learned Magistrate took theview that he was confident that he could impartially hear and decide thiscase in spite of the fact that he had been one of the two distinguishedguests at the dinner in question. He also asked complainant’s lawyerwho was a senior proctor of this Court whether he had confidence in theMagistrate’s impartiality, and the complainant’s proctor assured himthat he had absolute confidence in the Judge but was making theapplication as a matter of prudence on the instructions of his client.
The learned Judge also took the view that an accused person may havea right to raise an objection of this nature but it was not open to thecomplainant to do so.
I am of the view that the learned Magistrate has misdirected himselfwhen he said that it was not open to a complainant to raise an objectionof this nature. Probably what he meant was that if such an applicationbad been made by an accused such application would have been morereadily granted than where the complainant made an application of thatkind. It would appear from the authorities cited to this Court that thereal test in deciding an application of this nature is not whether theJudge in fact would be prejudiced and that the parties would not get animpartial hearing but whether the party to a case or even the generalpublic may have some reason to feel that the course of justice was notabsolutely fair and impartial.
In the circumstances of this case the Complainant Petitioner may havesome reason to fear that he may not get an impartial and fair hearing ofthis case because the accused Respondent had invited the learned Magis-trate to be one of the two chief guests at the College dinner at which theaccused would have presided as the Principal. In these circumstances Ithink it is in the best interests of justice that the application of the
L B. DE SILVA, J.—JSiandasamy v. Subramaniam
complainant to have this case heard before another Magistrate he allowed.In allowing this application I wish it to be clearly understood that thisCourt is not in any way suggesting that the parties would not have had afair and impartial trial before the learned Magistrate who is a judge ofconsiderable experience and seniority in the Judicial Service. Counselfor the accused-respondent only asks that this case be heard on the 28thOctober, 1961 for which date the case has been fixed for trial because healleges that the complainant is only attempting to delay the decision ofthis case.
I direct that this case be heard by the learned District Judge of Jaffnawho I am informed is also an Additional Magistrate for the division ofMallakam. I would request the learned District Judge to take up thisease for hearing at as early a date as possible.
PRINTED AT THE GOVERNMENT PRESS, CEYLON.
S. KANDASAMY, Petitioner, and C. SUBRAMANIAM, Respondent