VELAPPAN Vs. STATE OF KERALA
LAWS(KER)-1963-3-22
HIGH COURT OF KERALA
Decided on March 04,1963

VELAPPAN Appellant
VERSUS
STATE OF KERALA Respondents


Cited Judgements :-

GANGADHAR MARAR VS. STATE [LAWS(KER)-1971-9-8] [REFERRED TO]


JUDGEMENT

- (1.)THIS is an application by the first accused in Sessions Case 5 of 1963 on the file of the Sessions Judge of Palghat, for the transfer of the case to any other court. Various grounds had been raised in support of the application. Allegations made have been denied by the learned Sessions Judge and need no further consideration.
(2.)LEARNED counsel for the petitioner pressed one important allegation, namely, that when the petitioner applied for adjournment of the case under S. 526 (8) Crl. P.C., the learned Judge did not stay further proceedings, but dismissed the petition and proceeded with the examination of the prosecution witnesses. This fact is not disputed by the learned Public Prosecutor who opposes the application for transfer.
The question whether the learned Judge is bound to adjourn the hearing when intimation is received by him that the accused intends to move the High Court for transfer of the case has been considered in a Division Bench ruling of this court in Marshal Miranda and another v. State of Kerala (Criminal Appeal 238 of 1960) where a similar application under S. 526(8), Cr. P.C. was dismissed. I had occasion to deal with the matter rather exhaustively and after referring to the case-law I stated:

"It is not necessary to multiply cases for it is now fairly well settled that the court is bound to grant an adjournment on intimation, at the proper time of an intention to apply to the High Court for transfer. The intimation operates as if it were a statutory stay. The court cannot thereafter proceed with the case or record any evidence and if he does so all the subsequent proceedings are vitiated and the trial becomes illegal and will have to be set aside."
I have also considered clause (9) of S. 526 Cr. P.C., in reference to sessions trials. In sessions trial, the provisions of Sub-section (8) of S. 526 are subject to the provisions of Sub- section (9), but unless the case falls strictly within sub-section (9) the Judge is bound to grant time in accordance with Sub-section (8). Dealing with the arguments raised by the Public Prosecutor that failure to stay further proceedings would only be an irregularity curable under S. 537, I had stated that the decisions are not uniform, but that we are not prepared to agree with the contention that disobedience of the mandatory rule contained in S. 526 (8) is only an irregularity curable under S. 537, Cr. P.C.
Learned counsel for the appellant took me through the order of the Sessions Judge dismissing the application and submitted that a reading of the order of the learned Judge would show that the dismissal was on the merits and that no reference had been made to Sub-section (9) at all. Whether there is or is not a good ground upon which the High Court might order a transfer is not a question for the trial court to decide. It is also not for the trial Judge to decide whether the applicant has any apprehension that he will not receive a fair trial at the hands of the Judge. That is the function of the High Court and when once intimation is given to the court that the accused intends to apply for transfer he should stay all further proceedings immediately and it is not open to the Judge to consider the application on its merits.

(3.)LEARNED Public Prosecutor attempted to argue that even assuming that there was an infringement of the mandatory provisions of the Criminal Procedure Code that by itself is no reason to infer bias entitling the accused to have the case transferred. The question is not whether there is any real bias or whether the action of the learned Judge is susceptible of explanation. The real test is whether there were acts as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. It is well known that justice must not only be done, but it must appear to have been done. I, therefore, think that in the interests of justice it is necessary to transfer the case to some other court.
The further question that arises is whether the whole proceedings should be set aside or that the trial could commence from the stage when application under S. 526(8), Crl. P.C. was presented. There is no controversy that the general principle of law is that a Judge or Magistrate can decide a case only on the evidence taken by him. S. 350 of the Code is a statutory departure from this principle, but the section applies to the Magistrates and do not apply to the trial of sessions cases. It is, therefore, necessary that there must be a fresh trial. It is therefore, ordered that Sessions Case 5 of 1963 on the file of the Sessions Court of Palghat be transferred to the Principal Sessions Judge, Calicut for fresh hearing and disposal. The petition is allowed. Allowed.

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