[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL TRANSFER APPLICATION NO. 5/2008 VAMAN NARAIN GHIYA Vs. STATE OF RAJASTHAN Date: 01/07/2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. V.R. Bajwa for the accused-petitioner. Mr. A.K. Bajpai, Special Public Prosecutor for the State. *** REPORTABLE The present criminal transfer application under Section 407 Cr.P.C. is filed by the accused- petitioner seeking transfer of Sessions Case No. 76/2006- State Vs. Vaman Narain Ghiya and others, from the Court of Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur to any other competent Court in Jaipur City. 2. This transfer application has been filed on the ground that the present Presiding Officer, by his conduct, has given rise to a reasonable apprehension in the mind set of the petitioner that justice would not be delivered to him. The situation obtaining, in the course of trial, qua the manner in which the oars of the trial are being held, has led to give birth to a legitimate and reasonable belief in the perception of the accused- petitioner that justice would be an obvious [2] casualty if the trial is allowed to reach its logical conclusion in the said Court. 3. It is also contended on behalf of the accused-petitioner that the accused-petitioner is an old infirm man above 60 years of age and is suffering incarceration in the present case since 2003 and he was not keeping good health and suffering from various ailments like inguinal hernia, hiatus hernia, stone in gall bladder and enlarged prostrate etc. due to which the petitioner was having extreme difficulty in keeping himself in a standing position throughout the length of proceedings in the trial Court. Under such circumstances, the petitioner filed an application before the trial Court and asked for a stool or chair so that the petitioner could sit during the Court session. The trial Court dismissed the said application in an extremely mechanical manner stating that no VIP treatment can be given to the accused-petitioner. It was also stated that there are other number of accused persons and chairs/stools cannot be provided to each of them due to paucity of space in the Court room but the trial Court allowed the petitioner to squat on the floor of the Court room. 4. It is further contended that during the course of recording of prosecution evidence on [3] 08.05.2007, when the cross-examination of PW42 Anoop Singh was going on, the trial Judge directed all the other accused persons to be taken away by the jail authorities from the Court with the accused-petitioner standing alone in the dock. Incidentally, on that very day, one of the prospective prosecution witness namely Salauddin, whose testimony was to be recorded later, was also present in the Court and surprisingly the trial Judge did not bother to order witness Salauddin to stay out of the Court room when the statement of another witness was being recorded. 5. It is also contended that the trial Court while deciding the various applications filed at different stages by the accused-petitioner praying for appropriate reliefs within the four corners of law, made gratuitous and caustic remarks on the accused-petitioner which has further led the accused-petitioner to believe that there is grave bias in the mind of the trial Judge against the petitioner. 6. In support of his submissions, learned counsel for the accused-petitioner placed reliance on the judgment rendered by the Calcutta High Court in the case of Subal Chandra Mallick Vs. State (Cal.), reported in VI-1987(2) Crimes 398, wherein the Division Bench of Calcutta High Court has [4] observed that 'Allegation of bias- The test is not whether bias has actually crept into the consideration of the Judge, the test is whether a litigant could reasonably apprehend that a bias attributable to the Court might have operated against him.” 7. He further placed reliance on the judgment of the Calcutta High Court rendered in the case of Rajinder Singh alias Manu and another etc. etc. Vs. State of West Bengal, reported in 2004 Cri.L.J. 4023, wherein the Calcutta High Court while dealing with Section 407 Cr.P.C., held that ”Transfer in certain cases is made not because the party approaching the Court will not have a fair and impartial trial but because the party has reasonable apprehension that it will not have such a trail. Examination of the accused u/S. 313 Cr.P.C. amounting to lengthy cross-examination, refusal to give opportunity to cross-examine the witnesses etc. are some of the instances where transfer of a case is justified. When the whole procedure is extremely arbitrary and in direct contravention of law and the Judge displayed plenty of zeal and want of judicial spirit, the apprehension entertained by a party that it will not have a fair trial is justified warranting transfer.” [5] 8. Learned counsel for the accused-petitioner also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chhattisgarh & Ors., reported in JT 2007(3) SC 508, wherein the Hon'ble Supreme Court while dealing with Sections 406 and 407 Cr.P.C. has observed that “Transfer to different court- Permissibility- Murder case involving politicians- Father of one of the accused person was the former Chief Minister of the State- Brother of the same accused a siting MLA of the State- Appellant seeking transfer of the case to different court on the ground that the brother and father of the accused were likely to influence the judge seized of the matter- High Court refusing the transfer plea in the absence of sufficient grounds. Held though the present Judge showed no disinclination to hear the matter and would have acted in the true sense of a judicial officer, still in order to ensure that just is not only done but also seen to be done, and in view of the peculiar facts of the case, it would be appropriate for the High Court to transfer the case to some other Sessions Court. Such transfer not to be construed as casting any aspersions on the Judge seized of the matter. 9. Reliance has further been placed on the judgment of the Hon'ble Supreme Court delivered in [6] the case K. Anbazhagan Vs. The Superintendent of Police & Ors. Etc., reported in JT 2003(9) SC 31, wherein it has been observed by the Hon'ble Supreme Court that 'Transfer of criminal proceedings- Free and fair trial- When transfer is permissible. Held that on reasonable apprehension of bias would be sufficient for transfer to have free and fair trial. 10. After referring the aforementioned judgments, learned counsel for the accused- petitioner submits that in the given set of circumstances as enumerated above, a fair, forthright and impartial trial has become impossible in the Court of Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur and therefore, he prayed to allow the present transfer application and transfer the case to any other competent Court of law in Jaipur City. 11. Per contra, learned Special Public Prosecutor Mr. A.K. Bajpai, appearing for the State has stated at bar that this transfer application is directed against the impugned order dated 01.08.2007 passed by the Sessions Judge, Jaipur City, Jaipur and the same has been filed on 08.02.2008, that is after a delay of more than six months, which shows that the transfer application has not been filed with bonafide apprehension as [7] the petitioner could have file the transfer application immediately after passing of the order rejecting various applications filed by the petitioner. 12. He further submits that the trial of the case is at fag end and about to complete and, therefore, the trial Court while rejecting the application of the petitioner, has rightly observed that the accused-petitioner wants to delay the trial. 13. It is also contended on behalf of the prosecution that day to day trial is going on as per the directions issued by this Court but the accused-petitioner is not co-operating with the trial and merely because the applications filed by the accused-petitioner have been rejected by the trial Court, it is wrong to alleged that the trial Judge is biased with the accused-petitioner. 14. I have heard learned counsel for the accused-petitioner, learned Special Public Prosecutor appearing on behalf of the State and carefully gone through the order dated 01.08.2007 passed by the Court below as well as the judgments referred and the material supplied by the learned counsel for the petitioner. [8] 15. The plea of the petitioner is that there is reasonable apprehension that he will not get justice from the Court of Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur as the trial Court refused to provide chair or stool to the petitioner to sit in the Court room whereas he is suffering from various ailments. The trial Court also rejected various applications which were filed on behalf of the petitioner from time to time and in the order passed by the trial Court rejecting the application of the petitioner, the trial Court has made gratuitous and caustic remarks on the accused-petitioner, which led the accused- petitioner to believe that there is grave bias in the mind of the trial Judge against the petitioner. 16. Upon careful perusal of the order dated 01.08.2007 passed by the Sessions Judge, Jaipur City, Jaipur, it appears that after obtaining comments from the trial Judge concerned , the order has been passed on the application filed by the accused-petitioner under Section 408 Cr.P.C., by which the transfer application has been rejected holding that there is no substance in the transfer application as the same does not contain valid reasons to establish the fact that the Presiding Officer concerned is prejudice with the accused- petitioner. [9] 17. I have also carefully gone through the judgment of the Division Bench of the Calcutta High Court rendered in the case of Subal Chandra Mallick Vs. State (supra), wherein the Division Bench has held as under:- “On a consideration of the facts and circumstances of the case as detailed above we agree with the learned Sessions Judge that the proceedings of the case and the order dated 15.6.85, 20.8.85 and 7.10.85 do not reveal any bais against the petitioner. At worst they show the learned Magistrate's annoyance at the failure on the part of the learned Advocate of the petitioner to be present in his curt when the case was taken up for hearing on 20.8.85 annoyance which led him to pass an order on 7.10.85 which was found by the learned Sessions Judge as illegal and unjustified. But then as it has been observed again and again it is of fundamental importance that justice should manifestly and undoubtedly be seen to be don. As it has also been observed, in such a case as the present the test is not whether bias has actually crept into the consideration of the Judge, the test is whether a litigant could reasonably apprehend that a bias attributable to the tribunal might have operated against him, Manak Lal. Failure on the part of the learned Magistrate to pass an order on the application of the petitioner dated 15.06.85 calling upon him to direct the opposite party No.1 to produce the original letter allegedly sent to her by Mahadeb Sanbui, closing the case of the petitioner at 1.25 p.m. on 20.8.85 for no fault on his part (a layman does not understand that his lawyer's fault may be considered as his own in the eye of law) refusal to recall the order closing the case, ultimately agreeing to do that but on [10] condition of payment of Rs. 250 and that too to the opposite party No.1 all this might indeed cause despair to the petitioner and breed an apprehension in his mind that the learned Magistrate had become prejudiced towards him. We do not believe that the petitioner will not get justice from the hands of the learned Magistrate. We feel all the same, however, that things have taken such a turn in this case as to make the petitioner apprehensive that he will not get a fair deal from the learned Magistrate.” 18. Applying the ratio decided by the Calcutta High Court, the facts and circumstances of the case which was before the Calcutta High Court were altogether different and, therefore, the ratio decided by the Calcutta High Court is not applicable to the facts and circumstances of the present case. 19. Hon'ble the Supreme Court in the case of Satish Jaggi Vs. State of Chhattisgarh & Ors. (supra), has observed as under:- “ In this case, one thing which has to be kept in view is that the Sessions Judge himself has not indicated his disinclination to hear the matter. That is probably because he believes that the mere fact that his brother is known to some political heavy weight cannot stand in his way of discharging judicial function impartially without fear and favour. These are the hallmarks of judicial system. A judicial officer in whatever capacity he may be functioning has to act with the belief that he is not to be guided by any factor other than [11] to ensure that he shall render a free and fair decision which according to his conscience is the right one on the basis of materials placed before him. There can be no exceptions to this imperative, but at the same time there should not be any scope given to any person to go away with the feeling that the Judge was biased, however unfounded the impression may be. We are sure that the present Session Judge would have acted in the true sense of a judicial officer. But nevertheless to ensure that justice is not only done, but also seen to be done and the peculiar facts of the case, we feel that it will be appropriate if the High Court transfers the case to some other Sessions Court in Raipur itself. We make it clear that the transfer shall not be construed as casting any aspersion on the Learned Sessions Judge. The Trial Court before whom the trial is to continue should ensure that the trial is completed by the end of May, 2007. Needless to say, the parties shall co-operate in the completion of the trial with the said time.” 20. In the aforementioned case, Hon'ble the Supreme Court directed the High Court to transfer the case to some other Sessions Court on the ground that the father of one of the accused who involved in the murder case was the former Chief Minister and brother of the same accused is sitting MLA of the State. It has been further held that in order to ensure that justice is not only done but also seen to be done and in view of the peculiar facts of the case, Hon'ble the Supreme Court directed to [12] transfer the case to some other Sessions Court. 21. Here in the instant case, no such allegation is levelled by the accused-petitioner that the trial Judge is influenced by some influential persons but the transfer application is mainly filed on the ground that some of the applications filed on behalf of the accused- petitioner have been rejected by the trial Court and, therefore, he is having apprehension that he will not get justice from the present Presiding Officer. 22. Further the Hon'ble Supreme Court in the case of K. Anbazhagan Vs. The Superintendent of Police & Ors. Etc. (supra), while dealing with the transfer application, has held that on reasonable apprehension of bias would be sufficient for transfer to have free and fair trial, but in the present case, the accused-petitioner apprehended that the trial Judge is biased with him on the ground that several applications filed on behalf of the petitioner have been rejected by the trial Judge and also made remarks that the accused- petitioner wants to delay the trial. 23. It is submitted by the learned counsel for the petitioner that the accused-petitioner had filed a criminal revision petition before this [13] Court against the order dated 04.09.2004 passed by the Additional District & Sessions Judge No.1 (Fast Track), Jaipur City, Jaipur, by which the trial Court framed charge against the petitioner and other co-accused persons for the offence under Sections 3/25(1), 5/25(2) and 14/25(2) of the Antiquities and Art Treasurers Act, 1972 and under Section 379/120B, in the alternative under Sections 411, 413/120B, 414/120B and 401 of the IPC. The aforesaid criminal revision petition came to be dismissed by this Court vide order dated 14.03.2008. 24. The petitioner also filed a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 6894/2003- Vaman Narayan Ghiya Vs. The State of Rajasthan, for seeking directions by this Court to direct the respondent to conduct medical checkup of the accused- petitioner and this Court vide order dated 19.11.2003 while disposing of the said writ petition, directed the respondent to take the assistance of a specialist from a Government Hospital in the Department of Gastroentrology or if necessary a team of specialists who can visit the petitioner in jail and assess about his ailment and his health condition. 25. Recently a writ petition i.e. S.B. Civil [14] Writ Petition No. 1119/2008- V.N. Ghiya Vs. State of Rajasthan was filed by the accused-petitioner before this Court whereby he sought a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to obtain specialist treatment of his various diseases as may be medically advised at the hospital and by the doctors of his choice at his own cost. 26. The aforesaid writ petition was partly allowed by this Court vide order dated 18.03.2008 and the petitioner was permitted to be treated in judicial custody at SMS Hospital, Jaipur for the diseases which have been diagonized by the specialist doctors. 27. The accused-petitioner had also filed a contempt petition i.e. D.B. Civil Contempt Petition No. 279/2007 for disobedience of the order dated 19.11.2003 passed by this Court in S.B. Civil Writ Petition No. 6894/2003 and the same, after arguing at length, was dismissed as withdrawn by the Division Bench of this Court vide order dated 31.01.2008. 28. Thus, looking to the overall facts and circumstances of the case, it appears that right from the beginning immediately after the case was registered against the accused-petitioner, he used [15] to file writ petitions, revision petition and contempt petition and several other applications and in his writ petitions some directions in favour of the accused-petitioner were also issued, but merely because the application filed on behalf of the accused-petitioner asking to provide him chair or stool to sit in the Court room and several other applications have been rejected by the trial Court, does not mean that the trial Judge is biased with the accused-petitioner and considering the fact that the trial of the case is at the verge of completion, the Sessions Judge, Jaipur City, Jaipur has rightly rejected the transfer application filed on behalf of the accused-petitioner under Section 408 Cr.P.C. to transfer the case from the Court of Additional Session Judge (Fast Track) No.1, Jaipur City, Jaipur to any other competent Court vide order dated 01.08.2007 and the same requires no interference whatsoever by this Court as the judgments referred by the learned counsel for the accused-petitioner and the ratio decided by the Hon'ble Supreme Court as well as the Calcutta High Court is not applicable to the facts and circumstances of the present case. 29 Consequently, the criminal transfer application fails being devoid of merit and the same is hereby dismissed. (K.S. RATHORE), J. /KKC/ [16]