IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1696 OF 2007 CRIMINAL WRIT PETITION NO. 1696 OF 2007 CRIMINAL WRIT PETITION NO. 1696 OF 2007 Sitaram Atmaram Ghag .... Petitioner versus The State of Maharashtra & ors...... Respondent. Mrs. R.A. Wagh for the petitioner Mr. A.H.H. Ponda for Respondent no.2. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 28TH FEBRUARY, 2008 DATED; 28TH FEBRUARY, 2008 DATED; 28TH FEBRUARY, 2008 P.C.; P.C.; P.C.; 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. This Writ Petition is filed by original complainants whose complaints are pending adjudication on the file of Special Metropolitan Magistrate, filed under section 138 of the Negotiable Instrument Act. 96 complaints came to be filed by the present petitioners wherein accused are common. There are eight accused impleaded in the said complaints and original accused no.4 expired during the pendency of the cases. Accused nos.3 and 5 to 8 moved an application that the recording of the defence evidence be deferred until the evidence of the complainant is completed and until statements of the accused are recorded under section 313 of Cr.P.C. The application moved by accused nos.3, and 5 to 8 came to be allowed by the trial court and had ordered accordingly. Accused nos.1 and 2 also moved similar application making the same prayer for following the same procedure in relation to the accused nos. 1 and 2 as well. Strangely enough the trial court rejected the said application and directed the accused nos.1 and 2 to lead defence evidence. The matter was carried to this court and learned Single Judge of this Court (Coram: J.H.Bhatia J.) by an order dated 22-1-2007 passed in Criminal Application no. 4507/06 directed that the procedure to be followed in so far as accused nos.3 and 5 to 8 are concerned be also followed in all the matters. Despite the said order, the trial court insisted that accused nos.1 and 2 to lead defence evidence, without completion of the cross examination of the complainant in all the other cases. The matter was yet again carried to this court vide Criminal Application No.402/07 and by an order dated 23-2-2007, this court categorically directed the Magistrate to follow the same procedure in regard to accused nos. 1 and 2 as has been done in case of accused nos. 3 and 5 to 8, meaning thereby the deferring of the leading of defence evidence till the evidence of the complainant is completed in all the cases and the statement under section 313 of Cr.P.C. are recorded in those cases. In these set of facts, the accused moved transfer applications before the in-charge Chief Metropolitan Magistrate seeking transfer of the cases from the file of concurred Magistrate to some other court. The said application came to be rejected and aggrieved thereby a revision was filed by the accused before the Principal Judge making a prayer for transfer of the cases. Pointing out various discrepancies in the orders passed by the trial court, it was strenuously urged that the accused have a reasonable apprehension of bias against the Presiding Officer and thus it would not be in the interest of justice to permit the Presiding Officer to adjudicate the cases. It was also contended that one of the cardinal principles which needs to be respected viz. "justice should not only be done but it must also appear to have been done" was also pressed in service. After perusing the entire material on record, the Sessions Judge found that there exists a reasonable apprehension in the mind of the accused, that they would not get a fair trial at the hands of the Presiding Officer trying the said cases, and thus allowed the revision and transferred the cases to some other Judge. It is this order passed by the Principal Judge which is challenged by filing this writ petition. 3. Perusal of the judgment clearly reveals that the Presiding Officer of the trial court was insisting to follow different procedure to the extent it relates to the accused nos.1 and 2 despite two orders passed by the High Court directing contrary. The trial court had also closed the evidence of the complainant without a reasonable opportunity to cross examine the complainant at the hands of the accused. Taking over all view of the matter, the Principal Judge came to the conclusion that it would be desirable to transfer the cases to some other Judge. The view taken by the Principal Judge cannot be faulted. The test of reasonable apprehension of bias is properly applied and the cardinal principle that a litigant need to be assured of a fair trial is also borne in mind while directing transfer of cases. There is no illegality committed nor the impugned order result in miscarriage of justice, rather it would be in furtherance of cause of justice. In the result, there being no merit in the petition, the same is dismissed. it is re-iterated that as directed by Justice J.H.Bhatia in the first order dated 22-1-2007 the cases shall be, as far as possible, taken up on day to day basis so that an early decision in the cases can be obtained. The directions in that regard issued earlier would continued to operate. Writ Petition is thus dismissed. Rule discharged. ......