Jagdish and Others vs State of Rajasthan

Mohini Kapoor, J.—This is an application u/s Cr. PC for transferring the Sessions Case No. 124/85 from the Court of Shri Gyan Prakash Pandey, Additional Sessions Judge, Gangapur to some other court. A transfer application was moved before the Sessions Judge, Sawai Madhopur but the same was dismissed. Hence, the petitioner have approached this Court.

The four petitioners are facing trial for the offence u/s 302 IPC. The evidence in the case against them has been recorded and the case is now fixed for final arguments. At this stage, the petitioners moved the transfer petition saying that on the last date of hearing the complainant Babu, brother of the deceased said that the Presiding Officer was a distant relation of him and he would be able to get the decision in this favour. This created apprehension in the minds of the petitioners that they would not be able to get fair and impartial trial. Other grounds are also raised namely that this officer bad committed the case, be was present when the offence was committed, he bad knowledge, about the incident and that he bad formed an opinion about it, when he was Railway Magistrate and bad come to hold camp court at Gangapur City

Comments were called for from the Presiding Officer by the Sessions Judge, who decided the transfer application. The learned Counsel for the petitioners had laid stress on the fact that in his comments, the Presiding Officer Shri Pandey has not carried categorically about his relationship with the complainant party, and on this basis it is contended that the case should be withdrawn from his court.

The complainant in this case is represented by Shri S.K. Gupta and the transfer application has been bitterly opposed by him It has been denied that the Presiding Officer is a relation of the complainant party. It is also contended that merely because they are of the same caste it would not mean that they are relatives.

While disposing the transfer application, the main thing is to be considered is the apprehension in the mind of the applicant. It is not necessary that the basis of the Presiding Officer should be actually proved or that they should actually be bias in his mind. What is to be shown is that the applicant has a reasonable apprehension in his mind that be would not get a fair and impartial trial. To make out this ground the petitioners have stated that Babu, brother of the deceased expressed on the last date of hearing that be would get the judgment in his favour. It was only after this alleged statement that the petitioners started having apprehension. They did not move a transfer application all through the time the witnesses were examined by the Sessions Judge. It may even be said that the learned Sessions Judge may be holding a fair and impartial trail but on account of what is alleged to have been stated by the complainant, reasonable apprehension has arisen in the minds of the petitioners that they would not get a fair and impartial trail. It is on account of this apprehension, that the Sessions case deserves to be transferred from the court of the Additional Sessions Judge, Gangapur City to the court of Additional Sessions Judge, Karauli. A copy of this order be sent to the Sessions Judge Sawai Madhopur as well as to the Addl. Sessions Judge, Gangapur and Karauli. The petitioners are directed to appear before the court of Addl. Sessions Judge, Karauli on 20th December, 1989.