VELAPPAN Vs. STATE OF KERALA

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.

(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.