- (1.)This is a petition under section 407 Cr.P.C. wherein the prayer is that trial of sessions Case No. 197/2009 pending in the Court of Sessions Judge, Ujjain be transferred from Ujjain to Jabalpur or any other Court which the Court deems fit in the interest of justice
(2.)Short facts of the case are that petitioner was prosecuted for the offence alleged to have been committed u/ss. 302 and 394 IPC. According to the prosecution, one Rajeev Prakash Bhargava was murdered on 21.12.2008, upon which the petitioner was prosecuted.
The petitioner is in jail since 2008. Charge has been framed and case is at the stage of evidence. Some of the witnesses have already been examined.

Learned counsel for petitioner submits that petitioner is having apprehension that petitioner will not get justice if the case is tried at Ujjain. It is submitted that family of deceased Rajeevprakash Bhargava is family of the Advocates. It is submitted that Sandeep Bhargava, Rakesh Bhargava, Shreeram Bhargava and Kuldeep Bhargava are the Advocate who are the close relatives of Rajeevprakash Bhargava. It is submitted that relatives to the deceased who are in the legal profession are influencing the prosecution authorities. It is submitted that one witness Radheshyam has been examined by the prosecution who was not a listed witness. It is submitted that CD of the alleged offence has not been protected. It is also submitted that inspite of repeated request by the petitioner, the sketch which was issued by the prosecution has not been produced. It is submitted that petitioner is having an apprehension that he will not get justice if the case is tried at Ujjain. Learned counsel prays that in the facts and circumstances the petition be allowed and case be transferred to any other Court out of Ujjain.

(3.)Learned Dy. G.A. for the respondent/State submits that there is no allegation against the Presiding Officer where the case is pending. It is further submitted that as per instructions, there is only one eye witness Sandeep who has already been examined. It is submitted that no case is made out for transfer of the case from Ujjain to any other Court.
From perusal of record it is evident that there is no allegation by the petitioner against the Presiding Officer of the Court where the case is pending. Only allegation is that petitioner is having apprehension because of the fact that near relatives of the deceased, who was murdered, are in practice therefore the prosecution agency shall be influenced. In the matter of Caption Amarsingh Singh v. Prakash Singh Badal, 2009 2 SCC(Cri) 971 the Hon. Apex Court had an occasion to deal with section 407 CrPC wherein the Hon. Apex Court observed as under :-

6-A. "It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of malafides or political mandate of the informant or the complainant. However, if justifiable and reasonable apprehension of miscarriage of justice and likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by exercise of power under section 406 CrPC.

6-b For a transfer of criminal case, there must be a reasonable apprehension on the part of the party to a case that justice with not be done. It is one of the principles of administration of justice that justice should not only be done but it should be seem to be done. On the other hand, mere allegation that there is appehension that justice will not be done in a given case does not suffice. In other words, the Court has further to see whether the apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.

6-c Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under section 407 and anywhere in the country under section 406 CrPC.

6-d However, the apprehension of not getting a fair and impartial inquiry of trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, Judicial Fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one."