Baij Nath Singh vs Ram Narain Singh and Others

Gopi Nath, J.—This is a petition moved by the complainant for the transfer of S.T. No. 68 of 1981 State v. Ram Narain Singh and Ors. pending in the court of Sri R. S. Lal Srivastava, Sessions Judge, Ballia.

Trial started before Sri S.C. Jain who earlier was Sessions Judge, Ballia. He framed charges and recorded evidence of the prosecution witnesses, and thereafter fixed the case for 7th of July, 1981 for further evidence and statement of the accused. Sri S.C. Jain was thereafter transferred and was succeeded by Sri R. S. Lal Srivastava. It appears that the case was not taken up on 7-7-1981, and was adjourned to 21-7-1981. As the presiding officer of the court was on leave, the case was taken up on 20th of August, 1981. Statements of the accused were recorded 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. Giri, Advocate from the High Court to conduct the defence. This has, however, been denied in the counter-affidavit of Ramji Singh and in the comments furnished by the Sessions Judge. The case was, however, adjourned to 27th of August, 1981 for defence evidence and arguments. The Sessions Judge has in his comments said that in the application for adjournment moved on 20-8-1981 it was not said that Sri A. D. Giri, Advocate was to be brought from outside, adjournment was sought to enable the accused to produce their defence. On 27-8-1981, defence evidence was produced and arguments were heard. It appears that on 27th of August, 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 prosecution. The application was allowed and 7-9-1981 was fixed in the case. It appears that the court did not sit on 7-9-1981 and the case was adjourned to 16-9-1981. On 16-9-1981, the applicant moved an application before the Sessions Judge praying for the adjournment of the case as he intended to move a transfer application in this Court. The case was adjourned for ten days and 26-9-1981 was fixed. It appears that the complainant was directed to serve a copy of the application on the District Government Counsel. That was done, and the District Government Counsel made an endorsement 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 presiding officer observed as follows:

I will see where the bird goes. Phir yehin ayega, jise uri jahaj ka panchhi puni jahj per awe.

This allegation is contained in paragraph No. 28 of the petition. The allegation is strongly denied in the comments furnished by the Sessions Judge as also in the counter-affidavit filed on behalf of the accused. The transfer application was moved within the time allowed by the court below. A counter-affidavit was filed on 19-2-1982. Two weeks'' time was allowed to file a rejoinder-affidavit. No rejoinder-affidavit was filed. The case was put up on 8-4-1982 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 inspite of time being granted twice to the applicant. Learned Counsel for the applicant has fairly submitted that in the circumstances he would not press the allegations made in the petition which had been controverted, in the comments furnished by the presiding officer or in the counter-affidavit filed on behalf of the opposite parties. The transfer application was, however, pressed on the basis of certain circumstances. It was urged that since prosecution evidence had not been recorded by Sri R. S. Lal, and on the first date of hearing i. e. on 20th of August, 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 evidence 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 Srivastava 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 Trivedi, learned Counsel for the opposite party, during the arguments, invited my attention to Criminal Misc. (Bail) Application 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 earlier 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 Srivastava was building a house at Allahabad and the accused had information of his movements 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 procedure adopted by the court in requiring a copy of the application for time to be served on the District Government Counsel was unwarranted by law and it raised an apprehension that the trial would not be fair. Reliance was placed on Jogendra Narain Chaudhry Vs. Ganga Prasad Sah and Others, . That case is distinguishable on facts. Service of copy of an application on the District Government Counsel is a normal procedure and it does not raise a reasonable apprehension that trial would not be fair and impartial.

Learned Counsel then urged that justice must not only be done but also must appear to be done. Reliance was placed on AIR 1953 435 (SC) and Hazara Singh Gill Vs. The State of Punjab, . It was further submitted that the question of reasonable apprehension is a matter of personal equation, and the Petitioner''s apprehension should be judged from his point of view. Reliance was placed on Bhajan Lal v. Emperor AIR 1947 All 13 ; Lalta Prasad Saxena Vs. State, and Baqridee and Another Vs. Emperor, .

In a case of transfer "the question really is whether the Petitioner can be said to entertain reasonably an apprehension that he would not get justice" (See Hazara Singh Gill Vs. The State of Punjab, . A fanciful apprehension can never furnish a ground for transfer. See Daljit Singh Harnam Singh Vs. K.P. Hati, Asst. Collector of Customs, New Delhi, . In Bhajan Lal v. Emperor AIR 1947 All 13 , it was observed that in order to arrive at a conclusion whether the apprehension is reasonable or unreasonable, it is not possible to weigh the things in golden scales inasmuch as it is a question of personal equation. It was held that friendship of the Presiding Officer with a lawyer was no ground for transfer. In Manak Lal Vs. Dr. Prem Chand, it was pointed out that bias should be reasonably apprehended in order to affect a judicial proceeding. In Koko Gyl v. Emperor (1936) 37 CriLJ 436 it was held:

Before the High Court takes into consideration 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. u/s 407 Code of Criminal Procedure it has to appear to the High Court and not to a party that fair and impartial trial shall not take place. A hyper sensitiveness of a party cannot furnish a ground for transfer (see Rex through Manzoor Hasan Vs. Mohd. Ilyas, ; Girishnarain Awasthy Vs. The State, ; Chiranji Lal Vs. The State of U.P., . 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 transfer 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. If a transfer application were to succeed on this ground, all transfer applications will have to be allowed. In Sardar Khan v. Emperor 38 CriLJ 416 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 circumstances furnish a ground for transfer.

It was then submitted that their cumulative 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.