BAIJ NATH SINGH Vs. RAM NARAIN SINGH

JUDGEMENT

(1.) This is a petition mov ed by the complainant for the transfer of S. T. No. 68 of 1981, State v. Ram Narain Singh and others, pending in the court of Sri R. S. Lal Srivastava, Session Judge, Ballia. Trial started before Sri S. C. Jain who earlier was (Sessions Judge, Ballia. He fram ed charges and recorded evidence of the pro secution witnesses, and thereafter fixed the case for July 7, 1981 for further evidence and statement of the accused. Sri S. C. Jain was thereafter transferred and was succeed ed by Sri R. S. 'lal Srivastava. It appears that the case was not taken up on July 7, 1981, and was adjourned to July 2,1. 1981. As the Presiding Officer of the court was on leave, the case was taken up on August 20, 1981. Statements of the accused were re corded on that date. Learned counsel for the accused it is stated made a prayer for the adjournment of the case to bring Sri A. D. Girl, Advocate from the High Court to conduct the defence. This has, however, been denied in the counter-affidavit of Ram ji Singh, and in the comments furnished by the Sessions Judge. The case was, however, adjourned to August 27, 1981 for defence evidence and arguments. The Sessions Judge has in his comments said that in the appli cation for adjournment moved on August 20, 1981 it was not said that Sri A. D. Giri, Advocate was to be brought from outside, adjournment was sought to enable the ac cused to produce their defence. On August 27, 1981, defence evidence was produced and arguments were heard. It appears that on August 27, 1981, Sri A. D. Giri, Advocate did appear on behalf of the accused and an application was moved on behalf of the complainant for time to bring a counsel from the High Court to assist the prosecu tion. The application was allowed and September 7, 1981 was fixed in the case. It appears that the court did not sit on Sep tember 7, 1981 and the case was adjourned to September 16, 1981. On September 16. 1981, the applicant moved an application be fore the Sessions Judge praying for the ad journment of the case as he intended to move a transfer application in this court. The case was adjourned for ten days and September 26, 1981 was fixed. It appears that the complainant was directed to serve a copy of the application on the District Go vernment counsel. That was done, and the District Government counsel made an en dorsement on the application that he did not propose to move for transfer nor did he pray for adjournment. It appears that a copy of the application was served on the. counsel for the accused also, and he opposed that application. The petition states that on the application moved for time the pre siding officer observed as follows: "i will see where the bird goes. Phir yehin ayega, jise uri jahaj ka panchhi puniiahaj per awe". This allegation is contained in paragraph No. 28 of the petition. The allegation is strong ly denied in the comments furnished by the Sessions Judge as also in the counter-affi davit fell on behalf of the accused. The A-33 transfer application was moved within the time allowed by the court below. A coun ter- affidavit was filed on February 19, 1982. Two weeks' time was allowed to file a re joinder-affidavit. No rejoinder-affidavit was filed. The case was put up on April 8, 1982 and again no rejoinder-affidavit was filed and the applicant was granted one week's further time to file a rejoinder-affidavit. The rejoinder- affidavit was again not filed and the case was put up for hearing. It would thus appear that rejoinder- affidavit was not filed in spite of time being granted twice to the applicant. Learned counsel for the appli cant has fairly submitted that in the cir cumstances he would not press the allega tions made in the petition which, had been controverted, in the comments furnished by the presiding officer or in the counter-affi davit filed on behalf of the opposite parties. The transfer application was, however, pres sed on the basis of certain circumstances. It wag urged that since prosecution evidence had not been recorded by Sri R. S. Lal, and on the first date of hearing i. e. on August 20, 1981, he recorded the statement of the accused without giving any indication that he had read the evidence and applied his mind to the facts on record, it raised an apprehension in the mind of the applicant that justice would not be done. No such procedure, has been pointed out in the Code of Criminal Procedure which requires the Sessions Judge to record a statement of the nature asked for by the applicant. Section 313 of the Code deals with the statement of the accused, it does not require the court to record in writing that he had read the evi dence on record and had applied, his mind to the facts of the case and then was going to record the statement of the accused. Once the Sessions Judge starts the recording statement it is presumed that the court had read the evidence on record and had applied, his mind to the facts of the case. In the comments furnished the learned Judge has stated that, he had applied his mind to the facts of the case and had perused the entire evidence on record. It was then urged that Sri R. S. Lal Sri-vastava was earlier posted at Allahabad, and his son is practising here, and since during the proceedings before Sri S. C. Jain, no counsel from Allahabad had been taken to Ballia to conduct the case, and after Sri R. S. Lal Srivastava had taken over, Sri A. D. Giri had gone on behalf of the accused, it raised an apprehension in the mind of the complainant that because the family of Sri R. S. Lal Srivastava was staying at Allahabad, an Advocate of this Court would bring to bear an impact on the Judge. Sri Satish Triveai, learned counsel for the opposite party, during the arguments, invited my attention to Criminal Misc. (Bail) Ap plication No. 8 of 1981 moved by two of the accused in this court in which Sri A. D. Giri, Advocate had appeared on their behalf and the bail application was allowed. It was submitted that since Sri A. D. Giri had ear lier appeared on behalf of the accused in this court, they had engaged him in the court below. It may be observed that the complainant had also prayed for time to bring a counsel from Allahabad. He, had also taken Sri Keshav Sahai. Advocate, from this court to assist the prosecution in the court below. It was then said that Sri R. S. Lal Sri vastava was building a house at Allahabad and the accused, had information of his mo vements which showed that they had some link with him. This is too far fetched. Knowledge of fact is not the conveying of it by a party concerned. It was then submitted that the proce dure adopted by the court in requiring a copy of the application for time to be served on the District Government counsel was un warranted by law and it raised an appre hension that the trial would not be fair. Re liance was placed on Jogendra Narain Chaudhari v. Ganga Prasad Sah and others 1954 Cr. L. J. 247. That case is distinguishable on facts. Ser vice of copy of an application on the District Government counsel is a normal procedure and it does not raise a reasonable apprehen sion that trial would not be fair and impar tial. Learned counsel then urged that justice must not only be done but also must appear to be done. Reliance was placed on L. S. Raju v. State of Mysore A. I. R. 1953 S. C. 434, and Hazara Singh Gill v. The State of Punjab A. I. R. 1965 S. C: 720. It was further submitted that the question of reasonable apprehension is a matter of per sonal equation, and the petitioner's appre hension should be judged from his point of view;. Reliance was placed on Bhajan Lal v. Emperor A. I. R. (34) 1947 Alld. 13, Lalta Prasad Saxeiia v. State A. I. R. (39) 1952 Alld. 70, and Baqridee and another v. Emperor A. I. R. 1930 Alld. 495. In a case of transfer 'the question really is whether the petitioner can be said to en tertain reasonably an apprehension that he would not get justice' (See Hazara Singh Gill v. State of Punjab (supra ). A fanci ful apprehension can never furnish a ground for transfer. See Daljit Singh Harnam Singh v. K. P. Hati, Asstt. Collector of Cus toms, New Delhi A. I. R. 1969 Delhi 263. In Bhajan Lal v. Em peror (supra), it was observed that in order to arrive at a conclusion whether the ap prehension is reasonable or unreasonable, it is not possible to weigh the things in golden scales in as much as it is a question of per sonal equation. It was held that friendship of the Presiding Officer with a lawyer was no ground for transfer. In Manak Lal, Ad vocate v. Dr. Prem Chand Sindhvi and others A. I. R. 1957 S. C. 425, it was pointed out that bias should be reasonably apprehended in order to af fect a judicial proceeding. In Koko Gyl v. Emperor 1936 C37) Cr. L. J. 436, it was held: "before the High Court takes into con sideration an apprehension in the mind of the accused that he will not get a fair trial, the court must be satisfied that the apprehension is not. a fanciful one. Under Section 407 Cr. P. C. it has to appear to the High Court and not to party that fair and impartial trial shall not take place. A hyper sensitiveness of a party cannot fur nish a ground for transfer (See Rex through Manzoor Hasan v. Mohd. Ilyas A. I. R. (37) 1950 Alld. 312. Girsh Narain Awasthy v. The State through V. N.- Misra, Munsif. Etawah A. I. R. (38) 1951 Alld. 355, and Chiranji Lal v. The State A. I. R. 1955 Alld. 701. The circumstances enumerated do not to my mind constitute a sufficient ground to raise an apprehension against the integrity of the Judge or a bias in his mind. " it was then urged that because a trans fer application had been moved against the Judge, he would necessarily be prejudiced against the prosecution. This contention, has to be stated only to be rejected. II a trans fer application were to succeed on this ground, all transfer applications will have to be allowed. In Sardar Khan v. Emperor 38 Cr. L. J. 416 at 420, it was held that mere conviction of a party for contempt of court by a Presiding Officer does not itself furnish a ground for transfer of the case. It was observed that 'to hold otherwise would be to concede the privilege to a party to a case to secure the transfer of a case from a particular court by being unnecessarily offensive and insolent and thus courting proceedings for contempt of court. ' None of the aforementioned circum stances furnish a ground for transfer. It was then submitted that their cumu lative effect may be seen. The cumulative effect of unsubstantial circumstances as enumerated above is no better than their own effect. The petition accordingly fails and is dismissed. The stay order is discharged. .