Vijava Kumar, Balakrishnan and Devakiammal vs State Inspector of Police, Udumalpet

Sengottuvelan, J.—This is an application frled by accused 1 to 3 in S.C. No. 71 of 1985 on the file of the First Additional Sessions Judge, Coimbatore, to the file of either the Sessions judge, Coimbatore or the Second Additional Sessions Judge, Coimbatore.

One Manonmani, wife of the first petitioner died of burns. The first petitioner and petitioners 2 and 3, respectively her father�in-law and mother-in-law, are accused of murdering her by setting fire. According to the petitioners, there is practically no evidence against them. The matter was given sensational publicity to their prejudice. The learned Sessions Judge before Whom the case against the petitioners is now pending, has tried a similar case of burning (S.C. No. 92 of 1984) and the case ended in a conviction of the accused therein. The relatives of the petitioners are giving out that the Sessions Judge is sure to convict the petitioners also as done by him in S.C.92 of 1984. It is also being given out that in cases of unnatural death of a wife there is always a prejudice against the husband and/or the in-laws. The present case having been given a wide and sensational publicity, according to the petitioners, a shroud of suspicion has enveloped them. Hence the application for transfer.

The application is opposed by the prosecution,

The point for determination is whether the facts and circumstances of ''the present case warrant a transfer as prayed for. The Judicial opinion with reference to the nature of the relief prayed for, appears to be that even if no bias is alleged on the part of the judge trying the case, yet, if there is reason able apprehension in the mind of the accused person that he may not get justice then, it will be a good ground for transfer. What is reasonable apprehension has been laid down in several cases.

Mr. S. Srinivasan, Learned Counsel for the petitioners, relied upon the case reported in L.S. Raju v. The State of Mysore 1952 S.C.A. 499, where the Supreme Court observed as follows:

.........The case arises considerable local excitement and sensation and having regard to the position of the complainant as the bead of the judiciary, the trial had to be held before a judge specially brought down from Bombay. This however made no difference to the forum of appeal which was still the High Court at Mysore and the petitioner accordingly fifed his appeal in that Court. He now prays for a transfer of the appeal to some other High Court as he appealeds that he will not have fair and impartial hearing of the appeal in the Mysore High Court which is case did over by the complainant. This is obviously a weighty ground for the transfer of the case and the Advocate General of the respondent-State (sic) was the matter entirely in our hands. For any sound and reputable system of administration of justice, it is important that justice should appear to be does (sic) that is, in fact, done and it is no reflection on the independence and impartiality of the learned judges of the Mysore High Court to say that the ends of justice plainly requite in the circumstances of the case that the appeal should be transferred to a court outside the State of Mysore...

In the above case the petitioner was accuse of attempt of poisoning of the Chief Justus of the Mysore High Court himself and to that ground the Supreme Court came to the conclusion that the apprehension entertainer by the petitioner was reasonable.

In another case reported in Mohamed Abdul Raoof v. State of Hyderabad AIR 1951 Hyd. 50 a Full Bench of the Hyderabad High Court has observed as follows:

Where the accused has a reasonable apprehension that a fair and impartial trial or enquiry cannot be had, or when the ends of justice make it expedient, a transfer should be ordered. It is of paramount importance that parties arraigned before the court should have confidence in the impartiality of the courts. It is the duty of the High Court at all events to clear away everything which might reasonably engender suspicion and distrust in the courts and so to promote and maintain in the public a feeling of confidence in the administration of justice, which is so essential for social order and security. It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seem to be done. It is not any and every apprehension in the mind of the accused that can be a ground for transfer but it should be a reasonable apprehension, i.e., an apprehension which the High Court considers it reasonable for the accused as a reasonable person to entertain in the circumstances of the case

In the above case, the apprehension was based upon certain observations made by the judge in respect of the case.

In another case relied on by Mr. Srinivasan and reported in Raj Kishore Bhag Rai Vs. State, the Delhi High Court has observed as follows:

What is reasonable apprehension, has to be decided in each case with reference to its own peculiar incidents and the surrounding circumstances. In determining whether an applicant has a reasonable apprehension, it is the duty of the court, by placing itself in the position of the accused, to Consider the attending facts and circumstances. Abstract reasonableness cannot, normally speaking, be the standard in such cases.

In the above case, certain observations made by the Presiding Officer raised an apprehension in the mind of the accused.

In the present case, the Presiding Officer is not in any way concerned as in the case before the Supreme Court or he has also not made any observation as in the cases before the Hyderabad and Delhi High Courts referred to above. Hence the principle laid down in the above decisions relied on by the petitioner''s counsel cannot be readily applied to the case on hand, since the facts are totally different.

On behalf of the prosecution reliance is placed upon G.X. Francis and Others Vs. Banke Bihari Singh and Another, , where the Supreme Court observed as follows:

...... Among the grounds of transfer are certain allegations made against the learned trying Magistrate. It seems that a complaint was made against the complainant by certain Christians at Jashpurnagar early in 1955 in Criminal Case No. 5 of 1955 for desecrating a Christian Church there. The first court convicted him but released him under S. 562 of the Criminal Procedure Code. The complainant appealed and the appeal was heard by the Magistrate who is trying the present matter, Shri K.T. Damle. He disbelieved the prosecution evidence and, relying on the defence evidence, acquitted the complainant on November 6, 1956, in Criminal Appeal No. 1 of 1956. It is said that this indicates bias, or, at any rate, creates a reasonable apprehension of bias in the minds of the accused. We are unable to draw any such inference nor do we think that an apprehension based on such a ground is reasonable. We discourage such accusations and would be extremely slow to allow a transfer on such a ground. We do not think it necessary to call upon the learned Magistrate for an explanation because we reject this ground outright.

The Supreme Court in the above case has clearly laid down that the conviction passed in a similar case cannot be the basis of reasonable apprehension on the part of the accused that the case against him also will result in conviction.

In another case reported in Maneka Sanjay Gandhi v. Rani Jethmalani 1979 CLJ 458 (S.C.) : 1979 L.W.(Crl.) 70, the Supreme Court observed as follows:

Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner''s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

Applying the principle laid down by the Supreme Court in the above case to the facts of the present case, the apprehension on the part of the petitioners (accused) which is based upon an alleged previous conviction in a similar case, the facts of which are not even stated, cannot be said to be reasonable. It can only be attributed, in the language of the Supreme Court, to the ''hypersensitivity'' of the petitioners which cannot be taken into consideration. It is needless to state that the learned Sessions Judge will not be influenced by the undue publication about this case in the local press or even the fact that the petitioner has come forward with this transfer petition I find no ground for transfer and dismiss this application, however, with the above observations.