Sapru, J. - (1.) This application, on behalf of the Uttar Pradesh Government is of a rather unusual nature. "The prayer embodied in this application is that this Court may be pleased to transfer Sections 395/397/412, Penal Code case pending in the Court of the learned Scissions Judge of Banda to some other Court of equal status. We have described the application as unusual because it is very rarely, if indeed ever, that applications for transfer of cases from the Court of one Sessions Judge to another are made on behalf of the State to this Court. Sessions Judges occupy a position of distinct importance in our judicial hierarchy. It is after years of service that a judicial officer reaches the position of a Sessions Judge. The Criminal Procedure Code vests Sessions Judges with vast powers. They can pass a sentence of death, subject to confirmation by this Court, Very rightly both this Court and the State repose complete confidence is their ability, integrity and character, A transfer application on behalf of the State stands on a somewhat different footing from that of a private complainant or an accused person. Before a transfer application is presented on behalf of the State, it is not unreasonable to assume that care is taken on the part of the department responsible for law and order, that there is substance in the allegations on which the transfer application is bared. What may disturb the equanimity of mind of an ordinary villager is not likely to disturb the trained mind of men who have to deal with State matters. The State is represented in all trials by experienced counsel in all the districts in this province and it strikes us that they bring to bear upon their work an intelligent mind. The question, therefore, which we have to ask in this case is whether a trained mind could reasonably entertain an apprehension that the party it is representing is not likely to have a fair trial before the learned Sessions Judge. With these observations of a general character, we propose to deal with the specific allegations seriatim which have been made against the learned Sessions Judge in this cast.
(2.) It appears that a dacoity case in which 15 accused persons were involved was fixed for hearing in the Court of the learned Sessions Judge on 29th November 1949. On that date only two formal witnesses, i.e., one Badri and another Shri N.K. Roy, Judicial Magistrate, first class, were examined. Badri wag a recovery wifcnes.1 and so far as Shri N.K. Roy was concerned, he was the Magistrate who had conducted the identification proceedings. The first grievance against the learned Sessions Judge is that, during the course of the recording of the statements of these witnesses, the remark was made by him more than once that there was nothing in the case. In his explanation the learned Sessions Judge has categorically denied that he ever made that remark. The affidavit has been filed in this case by the station officer police station Naraini who had investigated the case. We do not know how the station officer came to be present in Court. According to the affidavit, the contents of paras, 1 to 6 and 13 are true to his personal knowledge. There is no counter-affidavit on behalf of the State to challenge the version of the learned Sessions Judge and, in these circumstances, we are bound to accept the version that the learned Sessions Judge has given as correct.
(3.) The second grievance against the learned Sessions Judge is that during the statement of Shri N.K. Roy, Judicial Magistrate, first class, the learned Sessions Judge made the observation that the second identification has got no legal value and was useless. It is urged that by this remark be expressed a definite opinion about the identification evidence upon which the prosecution was relying. The learned Sessions Judge denies having made any such observation. His explanation is that during the course of the examination of the Magistrate who had conducted the identification proceedings it appeared to him in the case before him that the identification proceedings of some of the accused by the same witnesses were held twice. He further states in his explanation that in the first parade no accused could be identified and in the second parade which was held after some time by another Magistrate the same witnesses identified the accused persons. Naturally it was pointed out by one of the counsel for the accused that any identification in the circumstances would be of little or no value. The learned Sessions Judge asked the counsel who was appearing in the case to hunt out authorities on the point and observed that the point would be discussed at length at the time of argument. We see nothing wrong in the line that the learned Sessions Judge adopted. It would certainly have been improper for the learned Sessions Judge to have expressed any definite or final opinion on the identification proceedings, but we do not find on the facts before us that he, in fact, did so.;