RATHORE, J. - (1.) THE present criminal transfer application under Section 407 Cr. P. C. is filed by the accused -petitioner seeking transfer of Sessions Case No. 76/2006 - State vs. Vaman Narain Ghiya and others, from the Court of Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur to any other competent Court in Jaipur City.
(2.) THIS transfer application has been filed on the ground that the present Presiding Officer, by his conduct, has given rise to a reasonable apprehension in the mind set of the petitioner that justice would not be delivered to him. The situation obtaining, in the course of trial, qua the manner in which the oars of the trial are being held, has led to give birth to a legitimate and reasonable belief in the perception of the accused -petitioner that justice would be an obvious casualty if the trial is allowed to reach its logical conclusion in the said Court. It is also contended on behalf of the accused -petitioner that the accused -petitioner is an old infirm man above 60 years of age and is suffering incarceration in the present case since 2003 and he was not keeping good health and suffering from various ailments like inguinal hernia, hiatus hernia, stone in gall bladder and enlarged prostrate etc. de to which the petitioner was having extreme difficulty in keeping himself in a standing position throughout the length of proceedings in the trial Court. Under such circumstances, the petitioner filed an application before the trial Court and asked for a stool or chair so that the petitioner could sit during the Court session. The trial Court dismissed the said application in an extremely mechanical manner stating that no VIP treatment can be given to the accused -petitioner. It was also stated that there are other number of accused persons and chairs/stools cannot be provided to each of them due to paucity of space in the Court room but the trial Court allowed the petitioner to squat on the floor of the Court room. It is further contended that during the course of recording of prosecution evidence on 8. 5. 2007, when the cross -examination of PW. 42 Anoop Singh was going on, the trial Judge directed all the other accused persons to be taken away by the jail authorities from the Court with the accused -petitioner standing along in the dock. Incidentally, on that very day, one of the prospective prosecution witness namely Salauddin, whose testimony was to be recorded later, was also present in the Court and surprisingly the trial Judge did not bother to order witness Salauddin to stay out of the Court room when the statement of another witness was being recorded. It is also contended that the trial Court while deciding the various applications filed at different stages by the accused - petitioner praying for appropriate reliefs within the four corners of law, made gratuitous and caustic remarks on the accused -petitioner which has further led the accused -petitioner to believe that there is grave bias in the mind of the trial Judge against the petitioner. In support of his submissions, learned counsel for the accused -petitioner placed reliance on the judgment rendered by the Calcutta High Court in the case of Subal Chandra Mallick vs. State (Cal.), reported in VI -1987 (2) Crimes 398, wherein the Division Bench of Calcutta High Court has observed that 'allegation of bias - The test is not whether bias has actually crept into the consideration of the Judge, the test is whether a litigant could reasonably apprehend that a bias attributable to the Court might have operated against him. "
(3.) HE further placed reliance on the judgment of the Calcutta High Court rendered in the case of Rajinder Singh alias Manu and another etc. etc. vs. State of West Bengal, reported in 2004 Cri. L. J. 4023, wherein the Calcutta High Court while dealing with Section 407 Cr. P. C. , held that "transfer in certain cases is made not because the party approaching the Curt will not have a fair and impartial trial but because the party has reasonable apprehension that it will not have such a trail. Examination of the accused u/s. 313 Cr. P. C. amounting to lengthy cross - examination, refusal to give opportunity to cross -examine the witnesses etc. are some of the instances where transfer of a case is justified. When the whole procedure is extremely arbitrary and in direct contravention of law and the Judge displayed plenty of zeal and want of judicial spirit, the apprehension entertained by a party that it will not have a fair trial is justified warranting transfer. " Learned counsel for the accused -petitioner also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Satish Jaggi vs. State of Chhattisgarh & Ors. , reported in JT 2007 (3) SC 508, wherein the Hon'ble Supreme Court while dealing with Sections 406 and 407 Cr. P. C. has observed that "transfer to different court - Permissibility - Murder case involving politicians - Father of one of the accused person was the former Chief Minister of the State -Brother of the same accused a siting MLA of the State -Appellant seeking transfer of the case to different court on the ground that the brother and father of the accused were likely to influence the judge seized of the matter - High Court refusing the transfer plea in the absence of sufficient grounds. Held though the present Judge showed no disinclination to hear the matter and would have acted in the true sense of a judicial officer, still in order to ensure that just is not only done but also seen to be done, and in view of the peculiar facts of the case, it would be appropriate for the High Court to transfer the case to some other Sessions Court. Such transfer not to be construed as casting any aspersions on the Judge seized of the matter. Reliance has further been placed on the judgment of the Hon'ble Supreme Court delivered in the case K. Anbazhagan vs. The Superintendent of Police & Ors. Etc. , reported in JT 2003 (9) SC 31, wherein it has been observed by the Hon'ble Supreme Court that 'transfer of criminal proceedings - Free and fair trial - When transfer is permissible. Held that on reasonable apprehension of bias would be sufficient for transfer to have free and fair trial. ;