1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1784 of 2010 Firoz Khan Alliyarkha and 4 others ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Ramdaspeth, Akola Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A. M. Ghare, Advocate for the applicant. Mr. M. J. Khan, A.P.P. for the respondent/State. CORAM : Prasanna B. Varale, J. DATED : 19 th April , 2011 . Heard Mr. A. M. Ghare, learned Advocate for the applicants and Mr. M.J.Khan, learned APP for the respondent/State. By the present application under Section 407 of Criminal Procedure Code, the applicants are seeking transfer of Sessions Trial No. 23/2007 pending before the learned 1st Ad-hoc Assistant Sessions Judge, Akola to any adjoining district of Akola. The applicants are the accused in Sessions Trial No. 23/2007, arising out of Crime No. 1/2000 for the offence under Section 326, 307 read with Section 34 of Indian Penal Code. Mr. Ghare, learned Advocate for the applicants submitted that the victim in the said incident was one Anil Narayandas Bagadia, who was Advocate by profession. The only ground raised by the applicants for seeking transfer of the trial is that as the victim, who was practicing Advocate at Akola was subjected to assault and during the pendency of the trial died natural death, the Advocates from the Akola Bar Association are bringing pressure on the police authorities for altering the charge to the offence under Section 302 of I.P.C. It was also 2 submitted that as the Akola Bar Association resolved that no lawyer should appear in the trial to represent the accused, there is an apprehension in the mind of the accused that they may not get fair and impartial trial. The resolution passed by the Akola Bar Association in this respect, dated 06/1/2000 is placed on record as Annexure-B. In support of his submission, the learned Advocate for the applicants has placed reliance on the judgment of this Court in the case of Nilesh Jap Daru .vs. State of Maharashtra, reported in 2005(1) Mh.L.J. 561. The reply is filed by the State. It is submitted by the learned APP that the applicants/accused are represented through lawyer. Perused the material. There cannot be any dispute on the preposition of law that an apprehension in the mind of the applicant/accused or litigant for not getting fair and impartial trial, is a ground for seeking transfer of the trial. The court has to consider whether the apprehension is justified or not. The only ground raised in the present application is that there is an apprehension in the mind of the applicants/accused that the victim being the practicing Advocate, they may not get an opportunity of fair trial. Perusal of the material placed on record in the form of resolution passed by the Akola Bar Association show that by the said resolution, it was resolved that "the police Department be requested to take immediate stern action against the real culprits. One delegation be sent to D.S.P. on this subject. It is further resolved that in protest of the assault, all the members shall abstain from work for a day, i.e. 06/1/2000". As it emerges from the resolution, a request to the police authority for seeking action against the culprits and forwarding a delegation to D.S.P., cannot be termed to be an apprehension justified. 3 Further, the resolution is about abstaining from work for one day i.e. 6/1/2000. This also cannot be termed to be a justifiable apprehension. The protest was for one day that too in the year 2000 and much prior to the trial. It is also submitted by the learned APP that the applicants/accused are being represented through the lawyer and as such it cannot be said that no legal assistance is available to the applicants/accused. It is stated in the reply filed by the State that there are as many as 74 witnesses and they all are resident of Akola. It is further stated that the case was fixed for evidence on 08/4/2011. On all these facts, I am of the opinion that an apprehension as suggested by the applicants is merely an imaginary apprehension, which is not at all supported by any justifiable reason or material. Though, Mr. Ghare, the learned Advocate for the applicants has placed reliance on the judgment of this Court in Nilesh Daru's case, in my opinion, being the facts which are different in the case at hand and in the case of Nilesh Daru, the judgment will not be applicable. Even in Nilesh Daru's case, this Court has observed that it would always be a question of facts to be decided in each case. In view of these facts, I find that the application is devoid of merits. In the result, the application is rejected and disposed of as such. JUDGE Diwale