HASMUKHKUMAR ISHWARBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner herein was Civil Judge (J.D.) and Judicial Magistrate First class at Rajkot. He is being tried for an offence punishable under Section 161 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act by the Special Judge t Rajkot. The petitioner has claimed in this petition that his trial at Rajkot would not be fair and impartial as the complainant and his supporters are taking undue interest in this case and are likely to tamper with witnesses. Mr. S. V. Raju the learned Counsel for the petitioner has urged that there is a genuine and reasonable apprehension in the mind of the petitioner that witnesses will be approached or influenced if the case is heard at Rajkot. Mr. Raju has also urged that as the accused was working as J.M.F.C. at Rajkot and the learned Special Judge who will try him is the Judge who had been writing his confidential reports. Hence the possibility that the learned Judge would be influenced by his opinions formed by him while writing confidential report cannot be ruled out. Lastly Mr. Raju has urged that in order to see that not only the justice is done but also it is seen to be done. Hence according to him the accused should be tried at some place other than Rajkot.

(2.) Mr. Kakkad the learned Counsel for respondent No. 2 has urged that if the accused is tried at Rajkot he is not likely to be prejudiced in any manner because according to him most of the prosecution witnesses are Government Officers and therefore there is no likelihood of their being approached by any one or influenced one way or the other. Mr. Kakkad has also urged that attending of the complainant and his supporters is unlikely to affect the merits of the case and therefore according to him there is no valid ground for transferring the case from Rajkot to any other place. He however agrees that if the case is transferred elsewhere the respondent No. 2 will not be in any way adversely affected thereby. Mr. Kakkad has suggested that in case if the Court comes to the conclusion that the case may be transferred from Rajkot it may be heard either at Gondal or Surendranagar. Mr. S. R. Divetia the learned Additional Public Prosecutor has urged that although there are no valid grounds for transferring the case from Rajkot to any other place he would have no objection if the hearing is fixed either at Gondal or at Surendranagar.

(3.) While it is true that the doubts and apprehensions in the mind of the accused have no basis in fact even so if the accused subjectively feels that his trial at Rajkot would be prejudicial to him and that it would be fair and proper if his trial is conducted else where. That feeling of the accused may not be completely ignored especially considering that he feels apprehension not only with regard to the merits of the case but also with regard to his personal safety. Justice should not only be done but should also be seen to be done.