Decided on September 13,1991



KAMLESH SHARMA,J - (1.) In this petition under section 407, Cr. P. C. the petitioner, Sh Kewal Ram Chauhan, has prayed for transfer of eleven criminal cases, which are being tried jointly, from the Court of Special Judge (District and Sessions Judge) (Forests), Shimla, to any other Special Judge. He is one of the accused in these cases. He has enumerated number of instances in his petition, which according to him raise reasonable apprehension in his mind that he will not get fair trial from the Special Judge. Before 1 deal with these instances and decide about them, I shall refer to a few judgments laying down the criterion for transfer from one Court to another within the jurisdiction of the High Court.
(2.) Special Bench of three Judges of Allahabad High Court In the matter of three Vakils of Jhansi, AIR 1928 Allahabad 396 observed ; - .........It is the duty of Courts, not only to be impartial, but also to inspire confidence in the administration of justice. It is there -fore not necessary, when supporting an application for transfer, to establish that there is any actual bias in the mind of the Magistrate concerned Incidents which are calculated to raise a reasonable apprehension in the mind of an ordinary accused person that he will not get a fair trial may justify a transfer although no actual bias in the mind of the trying Magistrate can be proved. It is the cumulative effect likely to be produced on the mind of an ordinary reasonable accused person that has to be seen. The question whether sufficient grounds are made out for a transfer is often a matter of opinion, and depends pa inferences to be drawn from facts that have happened......"
(3.) In Division Bench Judgment of Bombay High Court in Usman Haroon and others v. Emperor AIR 1947 Bombay 409, Chief Justice Stone speaking for himself and Justice Lokur, said: - ......the principle is quite clear, that apart from the susceptibilities of the accused, if circumstances do exist or events have happened, which are calculated to create in the mind of the accused the reasonable apprehension that he will not be fairly treated at his trial, the transfer should be made." The Supreme Court in Gurcharan Dass Chadha v. State of Rajas than, AIR 1966 SC 1418, held in Paragraph 13 of the judgment that: - "......The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of any party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. -;

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