J. Elavarasi vs State

A. Ramamurthi, J.—Petition filed by the petitioner/4th accused u/s 407 of the Code of Criminal Procedure, to transfer C.C. No. 7 of 1997 pending on the file of XI Additional City Civil Judge/Special Judge, Chennai to any other court.

The case in brief for the disposal of the petition is as follows:

The petitioner is the 4th accused in C.C. No. 7 of 1997 pending on the file of learned XI Additional City Civil Sessions Judge/Special Judge, Chennai relating to an offence under the Prevention of Corruption Act and also disproportionate wealth, possessed by the first accused and others.

The Special Court was constituted by the order of the State Government dated 30.4.97. The said notification was also challenged by some of the accused before this Court and after dismissal the same was taken to the Apex Court also. On 5.2.99, Union of India has issued a Government Order reallotting the cases. This was also questioned in the Apex Court by other parties. The petitioner has the genuine apprehension due to the conduct of the Presiding Officer that a fair and impartial enquiry or trial cannot be had before that court. The learned Judge has consistently acted from the very beginning which conduct gives rise to reasonable apprehension. After the documents were supplied u/s 207 of the Code, the learned Judge directed all the accused to be present in the Court on 21.10.97. Separate applications for discharge were filed. The learned Judge directed the counsel to argue the matter straightaway and did not call for a counter from the prosecution. After elaborate arguments, the counsel represented that it may not be necessary to have the accused to continue in the court. However, the learned Judge sternly told the petitioner's counsel that all the accused must wait in the court. After the arguments were over, the learned Judge proceeded to dictate the order, dismissing all the applications and surprisingly took out the sheet of papers which he had kept on his table and began to read out the charges framed against all the accused, which were both in. Tamil and English running to several pages. The entire matter has been prejudged by the learned Judge. The listening to the discharge applications is a make belief and had no intention and had never intended to consider any of the arguments. The normal and usual procedure should always be that the prosecution must say what charges should be framed and how the materials are there are of a reasonable probative value to support such a charge. It will be the task of the defence counsel to say how the particular charge as suggested by the prosecution cannot be framed for lack of evidence. The learned Judge has forsaken the entirety of a mandatory and vital procedure provided under the Code.

The learned Judge had passed an order, condemning the Government of which the 1st accused in the case was the head in a matter that is totally irrelevant for deciding the issue in the said proceeding. The order has been passed by the learned Judge in Crl. M.P. 6962/93, wherein it is observed as follows:

During the pendency of the case, the petitioner/accused was appointed as Chairman Fisheries Development. It is wonder how a person involved in a dacoity case has been appointed as a Chairman of a Government undertaking.

From this mala fides could be inferred.

The learned Judge has failed to reign and control the learned Public Prosecutor from causing serious aspertions and prejudice to the accused while making submissions before the Court. The Public Prosecutor stated that those living in palatial houses should not be permitted to be represented by their counsel during trial and the Judge should not permit filing of the application u/s 205 of the Code. The learned Public Prosecutor had addressed arguments unconnected with the case solely with a view to cause prejudice to the accused. The learned Judge instead of admonishing the Public Prosecutor for these remarks had stated that "the court would not permit filing of petitions u/s 205 Cr.P.C". He further went on to observe that only in exceptional situations the petition u/s 317 Cr.P.C. would be permitted. The right to file a petition permissible under the Code could never be controlled by any court. It is a part of the right statutorily guaranteed. Even before an application is filed where the court has declared that such an application would not be permitted to be filed and also making it clear that section 317 Cr.P.C. petition would be allowed only in exceptional circumstances, the learned Judge had prejudged the rights of the petitioner. The remarks were made in open court.

They clearly revealed the pre-disposition of the learned Judge to hold against the accused in every facet of the case and also the determination to deny her rights which is granted to her by law.

The learned Judge convened a meeting only of Public Prosecutors appointed by the State on a special basis for conduct of these cases. Several tens of Public Prosecutors participated in the close room meeting. Importantly the Public Prosecutor, who is conducting the trial participated in the meeting. The defence counsel were not called for the meeting and the petitioner understands that only at the instance of the learned Judge, the meeting was convened. There could never be such meeting between the learned Judge and the Public Prosecutors concerning the pending cases.

The petitioner and the 2nd accused filed applications before the learned Judge praying that copies of the documents be given to them in Tamil language. This application was dismissed. They preferred petitions before this Court and, ultimately, passed an order allowing the applications, stating that the copies of the documents must be furnished in Tamil. The State Government filed a SLP against the said decision before the Apex Court and made a plea for staying the operation of the order, but it was not granted. The order was communicated to the learned Judge from this

court. The case was posted to 28.12.98. Until that time, the Court had not taken any steps to comply with the order. On 28.12.98 memos were filed on behalf of the accused that without complying with the courts direction of furnishing copies, the trial cannot commence or continue. The second accused filed a memo and although no counter was filed, the learned Judge immediately dictated the order dismissing the memo. The learned Judge had further summoned witnesses for examination. This Court passed an order that the witness already summoned may be examined in chief in part and further examination will be deferred until further orders. The learned Presiding Officer brushed aside the submissions made by the counsel and proceeded to examine the witnesses. The learned Judge refused and directed the Public Prosecutor to examine the witnesses in full and also directed the counsel for the first accused to cross examine the witnesses. Faced with this choice, the first accused's counsel had cross examined the witnesses. The learned Judge by the order dated 23.2.99 had further summoned many witnesses to be examined on 9.3.99. The learned Presiding Officer is conducting the case even in the very teeth of the order of this Court.

The learned Presiding Officer has participated in an exclusive function in Chennai in January, 1999 in which a Tamil translation of P.C. Act, 1988 was released by the Presiding Judge. A press report of the function had been published in several newspapers. In the said meeting, the participants are significant. The meeting was presided over by this Presiding Judge. He has stated that the sections 3(1) and 4(2) of the Prevention of Corruption Act are being analysed. The reports appearing in the newspaper also indicate that one of the participants is Thiru Nallamma Naidu.

Addl. Superintendent of Police. DVAC who has investigated the case and who had figured as a prosecutor and who regularly appears in all the hearings before that court. Another Public Prosecutor Thiru Jawaharlal had also attended the function. Now the case of the petitioner is pending and when the learned Judge is dealing with the same under the P.C. Act, presiding over the functions and making remarks about the pending cases and commenting upon the desirability of earlier resolution of certain issues are totally uncalled for. It gives a reasonable apprehension in the mind of the petitioner that fair and impartial justice cannot be had from the said Presiding Officer.

The notification issued by the Central Government dated 5.2.99 which has in effect ousted the jurisdiction of the Presiding Judge dealing with the petitioner's case. The first accused has filed a memo on 8.2.99 enclosing a photostat copy of the notification. The learned Judge has on his own passed the order rejecting the memo stating that the Central Government has no power. The case of the petitioner was taken up for hearing on

23.2.99. He had directed that summons to be issued and 13 witnesses to be examined on 9.3.99. Notwithstanding the fact that the matter is pending before the Supreme Court and also the notification by the Central Government, the order has been passed. The learned Judge with hostile bias and serious prejudice has once again decided to steam roll the case disregarding the legitimate concern of the defence.

On 23.2.99 the case was posted and the defence counsel did not make any representation with regard to the date to which the case to be posted. The learned Judge posted the case on 4.3.99. The Public Prosecutor Thiru Somasundaram stated that the prosecution had some difficulties on that date. The learned Judge immediately obliged him by adjourning the hearing to 8.3.99. When this date was announced, counsel for the first accused stated that he had to go to the Apex Court as the case challenging the S. 3(1) notification of the State and the challenge of S. 4(2) notification by the Central Government are coming up for hearing on the said date. The learned Judge stated that he had already passed an order and he would not change it. After a while, when the Public Prosecutor stated that they have to go to Supreme Court for the same hearing and later, the case was adjourned to 9.3.99. The genuine plea made by the defence has been rejected, but the prosecution plea had been readily favoured. The series of the aforesaid instances clearly show that fair and impartial trial could not be had before the learned Judge. Hence, the petition.

The respondent filed a counter and stated that after completing the investigation, the charge sheet was filed against the petitioner and three others on 4.6.97. The copies of the documents relied on by the prosecution were furnished, to the accused on 25.6.97 and all the accused including the petitioner were required by the court to be present on that date. On that date, petitions seeking discharge from the case were filed and the court after hearing both sides, dismissed the petitions and framed charges against the accused. The charges were framed in Tamil and all the accused pleaded not guilty. It is incorrect to state that the learned Judge had pre-judged the matter. The learned Judge had complied with the requirements of law as set out in the Code before framing the charges and due opportunity was also given to the accused to make their submissions in Court. The trial court is not required to either adjourn the case or call for a counter from the prosecution when the police reports and the accompanying materials are available before the court. How ever, petitioner had filed Crl.R.C. 935/97 before this court, challenging the order of the trial court, rejecting her application for discharge and it is still pending.

It is totally incorrect that Thiru A.V. Somasundaram, Special Public Prosecutor had been casting aspersions and causing prejudice to the accused, while making his submissions before the court. The petitioner and other accused have been continuously absent from appearing in the Court for several hearings and filed petitions u/s 317 Cr.P.C. It was in this context, the Special Public Prosecutor had occasion to submit his objections before the court. There is no right vested with the accused to invoke Section 317 Cr.P.C. for all the hearings. It is definitely within the discretion of the Court to regulate the use of this Section of law depending upon the circumstances of each hearing. The petitioner and others have been invoking section 317 Cr.P.C. for almost all the hearings with the permission of the court.

He has ascertained from the Special Public Prosecutor that there was no occasion when the learned Special Judge convened a meeting exclusively of the Public Prosecutors. The averments are totally false and have been made with ulterior motive. The petitioner has not disclosed as to from whom her counsel came to know of such a meeting and on what date the meeting took place. No such meeting had taken place.

It is true that the petitioner and Tmt. Sasikala Natarajan have filed petition seeking Tamil translation copies. The petition was dismissed and the accused filed petition before this court and later, it was allowed holding that the petitioners are entitled to be furnished with copies of the records translated in Tamil for the purpose of formulating their defence. There was no direction for stay of proceedings. The Apex Court while admitting the SLP filed by the different accused, had rejected their prayer for stay of trial. It was refused in view of the mandatory provision of section 19(3) of P.C. Act.

It is true that on 28.12.98 petitions were filed on behalf of the accused that without supplying the translated copies, the trial cannot commence or be continued. The learned Judge dismissed the petition on valid grounds as there was no stay either by this court or by the Apex Court. Two witnesses were examined on 28.12.98 and the petitioner was not in any way prejudiced by their examination. The learned Judge ordered that the remaining accused will be permitted to recall the witnesses for the purpose of cross examination, after the translated copies were furnished to the petitioner and Tmt. Sasikala Natarajan. Counsel for the first accused had cross examined the witness on 28.12.98. The Tamil translated copies were furnished to the petitioner on 26.3.99 by the learned Special Judge. The accused have already pleaded not guilty and there is no prejudice caused to their case because of their aforesaid plea.

He had also participated in the function for the release of a Tamil translation of Prevention of Corruption Act, on the invitation of Thiru Thorali Shankar, who is the author of the said book. He had written many other books. As a person interested in the subject and as an invitee, he had attended the function which was also attended by many eminent lawyers including Public Prosecutors and six Judges. It is not correct to attribute any motive to the Judges who had attended the meeting. The speeches made during the occasion only relating to the subject of Prevention of Corruption Act and had no specific relevance to any of the cases now pending before the Special Court.

The matter was pending before the Apex Court on 8.2.99. The first accused filed a petition before the learned Judge without any prayer, though C.C. No. 7 of 1997 was not posted on that date. Another petition had been filed before the Special Court in C.C.I of 1998. The learned Judge dismissed the petition on merits. There is no appeal or revision by the accused, challenging the said order. It is true that the case was posted to 9.3.99 for examination of witnesses and witnesses were also present on that date. There was no stay of trial and summons were issued for the hearing on 23.2.99. The respondent denies that the learned Judge has been obliging the prosecution and refusing and slighting defence counsel. At the end of each hearing, the learned Special Judge asks for the convenience of the counsel for both sides and then post the case for subsequent hearing. On 23.2.99 also, only after asking the convenience of both the sides, the case was adjourned to 9.3.99. He was present in the court hall on 23.2.99. Various allegations set out in the petition against the learned Special Judge have been concocted and invented for the purpose of falsely maligning the Judge and to protract the trial indefinitely. There are no grounds for any genuine apprehension in the mind of the petitioner. The petition is devoid of any merit and it is liable to be dismissed.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

The petitioner who is the 4th accused in C.C. No. 7 of 1997 pending on the file of XI Additional City Civil Sessions Judge/Special Judge, Chennai has filed this petition to transfer the case to any other court. The learned counsel for the petitioner urged about eight grounds to transfer the case and contended that the petitioner had lost confidence in the court and further more, fair and impartial trial cannot be conducted in the said court and as such the case has to be transferred.

The first ground urged by the learned counsel for the petitioner is that on 21-10-1997 separate discharge applications were filed but the learned Judge without waiting for a counter to be filed by the prosecution, directed the counsel to argue the matter straightaway. After elaborate arguments, the learned Judge proceeded to dictate the order dismissing all the applications. Immediately he took out some papers kept on his table and began to read out the charges framed against all the accused running to several pages. Because of this, it was contended that the learned Judge had pre-judged the matter and the listening of arguments is only a make belief affair and furthermore the accused were made to wait till the end which is unusual.

When discharge petition is filed, it is not necessary that the learned Judge should wait for the counter to be filed by the prosecution. It is necessary to state that the learned Judge is presiding the Special Court constituted for speedy trial of the cases coming under the Prevention of Corruption Act. Simply because the arguments were heard and orders were passed on the same day would not lead to any conclusion that the learned Judge was biased. Further more, a perusal of the charge papers only indicate that three charges alone were framed and it is running only to two papers and not lot of papers as stated by the learned counsel for the petitioner. Similarly, the accused concerned in the case were present in the court and the learned Judge called upon them to wait in the court. When the accused comes to the court they have to necessarily wait in the court till the case is called. In my view this is not a valid ground to transfer and infact the judicial act done by the Officer cannot be questioned in the transfer application and if aggrieved by the order, they can always approach the higher forum.

It is necessary to note that Section 114 of the Evidence Act establishes that the court may presume existence of certain facts. Section 114(e) of the Evidence Act is very clear and by which the court may presume that judicial and official acts have been regularly performed. Similarly, Section 407 of Cr.P.C. can be made applicable only when a fair and impartial enquiry or trial cannot be had in any criminal court. Under the circumstances, the burden is only upon the petitioner to prove that a fair and impartial trial is not possible.

The second ground urged by the learned counsel for the petitioner is that the same Judge had passed an order somewhere in 1993 condemning the Government of the first accused. The said order was passed in 1993 and it is curious to note that the first accused involved in this case has not come forward with any application on this ground. Now, I am of the view that this ground even if proved, cannot be made use of by the petitioner who was not a party in the earlier proceeding.

The third ground urged by the learned counsel is that the learned Judge is not controlling the learned Public Prosecutor appearing in that court and he had addressed arguments unconnected with the case solely with a view to cause prejudice to the accused. It was also stated that the learned Judge had mentioned that the court would not permit filing of petitions u/s 205 Cr.P.C. and only in exceptional situation petition u/s 317 Cr.P.C. would be permitted. The learned counsel stated that it is a statutory guarantee given to the party to file a petition and as such as the observation made by the learned Judge had caused bias. It is only a bald and general statement made by the petitioner against the Officer. No specific date or particulars were furnished to show when their application filed either u/s 317 Cr.P.C. or u/s 205 Cr.P.C. were dismissed. Even assuming that their applications were dismissed on any particular date, it is not a ground to transfer the case from one court to another. If this contention is accepted, then it will lead to dangerous consequences. Every day number of applications are filed in court and according to the situation the Officers would pass orders and if any application is dismissed and the same was used for purpose of transfer, then it would be opening the flood gate and as such I am unable to agree with this contention.

The fourth ground urged by the learned counsel is that the Presiding Officer convened a meeting of Public Prosecutors appointed by the State and many of the Public Prosecutors participated in the close room meeting, but the counsel appearing for the accused were not invited. This is also a general statement made by the petitioner without any material. If really there was already a meeting convened by the learned Judge and Public Prosecutors were invited, then it is not difficult for them to give the date and time of the meeting. There was absolutely no necessity for the learned Judge to convene the meeting. In fact, the learned counsel for the petitioner at one point of time stated that the remarks from the Presiding Officer also can be called for relating to the allegations levelled in this petition. Now, the counter to the petition has been filed by the Investigation Officer and he may not be competent to deny such allegations levelled against the officer. Normally, when allegations are levelled against an officer giving full and complete particulars and if there was any necessity, then only the remarks can be called for. Now in the present petition a general and bald allegation has been levelled against the Officer and as such I am of the view that calling for remarks is absolutely unnecessary and further more, if these allegations are brought to his notice, it may not be conducive for a proper trial also. There is absolutely no particulars to substantiate this contention and in my view, it is a ground invented by the petitioner only to add the number, apart from that it is a ground liable to be rejected.

The fifth ground urged by the learned counsel is that some applications were filed before the learned Judge praying that copies of the documents to be given to them in Tamil language. The application was dismissed by the Trial Judge, but a revision was filed before this court and it was allowed. The case was posted on 28-12-1998 before the learned Judge. On the same day, memos were filed on behalf of the accused that without complying the court's direction of furnishing the copies, the trial cannot be conducted. The learned Judge summoned witnesses for examination and the witnesses already summoned may be examined in chief and further examination will be deferred. The learned Judge insisted for the examination of witnesses in full and the counsel for the first accused hail also cross examined the witnesses. The learned Judge further summoned many witnesses to be examined on 9-3-1999. No doubt orders were passed to supply copies of the documents in Tamil to all the accused concerned in the case. Even assuming that some witnesses were examined in chief, it would not prejudice them in any way. There was no stay of the trial of the case at any point of time and this court being a Special Court the learned Judge could have proceeded with the trial for speedy disposal of the case. This would not lead to any conclusion that there was bias on the part of the Presiding Officer, either relating to the petitioner or any other accused. It is relevant to point out at this time that if there is legitimate grievance or apprehension on the part of the accused'', all of them should have joined together and filed an application for transfer. But now, only one of the accused namely A.4 had filed this application thereby indicating that in respect of the other accused there was no apprehension relating to the fair and impartial trial.

The sixth ground urged by the learned counsel for the petitioner is that the learned Presiding Officer has participated in an exclusive function in Chennai in January, 1999 in which Tamil translation of Prevention of Corruption Act was released by the Presiding Judge. The press report copy had also been filed by the petitioner. The meeting was presided over by the Presiding Judge and it appears he had stated that Section 3(1) and 4(2) of the Prevention of Corruption Act are being analysed. It is stated that one of the Investigating Officer Thiru Nallama Naidu had also participated in the function and apart from the learned Judge other Judges had also participated in the said function. The main grievance urged by the learned counsel for the petitioner is that none of the defence counsel were invited for the Book release function and moreover the statements had been made by the Presiding Officer relating to the case in question and thereby it had created an apprehension in the mind. If the allegation is true, then as adverted to, all the accused together jointly or separately might have filed an application seeking transfer. A persual of the paper cutting filed by the petitioner also would establish that the Presiding Officer has not spoken any word about the pending case in his court. In fact one Thiru. Tholraj Shankar is the author of the said book relating to Tamil translation of Prevention of Corruption Act. It appears that Thiai Nallamma Naidu had also attended the function apart from other lawyers. Public Prosecutors and other Judges. I am of the view that no motive can be attributed either to the Presiding Judge or to the Police Officer or to the participants on this ground. The book was written by some other author and for the release function the learned Judge had attended the function apart from other Judges. There was only a general speech about the provisions under the Prevention of Corruption Act and nowhere, there is any reference relating to any of the accused concerned in the case. If the organizers of the function had not invited the defence counsel, that cannot be used as a ground to transfer the case from the learned Judge. It is not the duty of the learned Judge to recommend to the organizers of the function to invite the defence counsel also. In my view the present ground has been unnecessarily raised only to prevent the judges from participating in the functions connected with the court and judiciary Hence, this ground also cannot be accepted.

The seventh ground urged by the learned counsel is that the learned Judge dismissed the memo relating to the Central Government notification u/s 4(2) of PC. Act stating that the Central Government has no power. No doubt, the Central Government issued a Notification dated 5-2-1999 and the first accused had filed the memo on 8-2-1999 enclosing the photostat copy of the Notification. The memo has been filed and the same was dismissed stating that the Central Government has no power. The case was posted for hearing on 23-2-1999 and summons were ordered to be issued for 13 witnesses. The validity of the notification issued by the Central Government was also pending before the Apex Court at that time. It is significant to point out that there was no stay at the relevant point of time preventing the learned Judge from deciding the case. Moreover, even if any G.O is issued by the Government it is not known how the accused was able to file the copy of the G.O. before the court. The G.O. if any ought to have been sent to the court only through proper authorities. Considering the fact that the accused has filed a copy of the G.O., the learned Judge could have dismissed the same. Further more, even assuming that the learned Judge had dismissed on a particular ground, no motive can be attributed because it is a judicial order passed by him and the only remedy open to them is to file a revision. If motive is attributed to any orders passed by the learned Judge, then no case can be conducted by any Presiding Officer. Hence, I am of the view that this will not create any reasonable apprehension in the mind of the petitioner. As adverted to, this has not caused any reasonable apprehension in the mind of the other accused concerned in the case also is a matter to be taken note of.

The last ground urged by the learned counsel is that the learned Judge obliged the prosecution by adjourning the case from 23-2-1999 to 9-3- 1999 as requested by the learned Public Prosecutor instead of 4-3-1999. The case was originally posted on 23-2-1999 and the learned Judge adjourned to 4-3-1999. It appears that the learned Public Prosecutor expressed some difficulty and thereafter the learned Judge adjourned the case to 8-3-1999. At that time, the defence counsel for the first accused stated that he had to go to the Apex Court in connection with some case relating to the Notification issued by the State Government as well as the Notification issued by the Central Government. It is stated that the learned Judge did not agree for the change in the date. At the same time when the learned Public Prosecutor stated that they also have to go the Apex Court for the same hearing, the learned Judge adjourned the matter to 9.3.1999. Now this has been taken as a ground for transfer of the

case. Now-a-days in courts, cases are adjourned to one date and later adjourned to some other date at the convenience of the parties or their counsel. Even then, there are instances to show that the cases could not be taken even on the adjourned date. Simply because a date has been given to the convenience of the parties, it cannot be used as a ground for transfer. In fact, the change of date was given only at the request of the parties. It appears that whatever stated and done in the pubic court by the learned Judge has been used as a ground for transfer of the case irrespective of the nature whether it would cause reasonable apprehension in the mind of any prudent person. I am of the view that these grounds have been pointed out only for the purpose of getting the transfer from the said court for reasons best known to them. The aforesaid grounds are not sufficient to infer that the petitioner could not have a fair and impartial trial in the same court.

The learned counsel for the petitioner relied on number of decisions, but the relevant decision cited alone are considered. Reliance was placed upon a ruling reported in AIR 1928 757 (Lahore) wherein it is observed that the trial of a case should be in an atmosphere which does not create even a suspicion that there has been or is likely to be an improper interference with the course of justice. It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly be seen to be done. There is no dispute about this proposition.

Reliance was also placed upon another decision reported in AIR 1930 166 (Lahore) wherein it is observed "Magistrate acting as mouth-place of Public Prosecutor in conducting examination of the accused is a valid ground for transfer of case from his court". There is no dispute about this proposition but it has no application to the case on hand.

The petitioner also relied upon a case reported in AIR 1939 59 (Lahore) wherein it is observed that the mere fact that certain orders passed by the trying Magistrate are erroneous or illegal is by itself insufficient to justify transfer of the case from his court. But where the procedure adopted by him is such as to justify a reasonable apprehension in the minds of the accused persons that they would not have a fair and impartial trial in his court and the conduct of the Magistrate is clearly calculated to indicate that both parties to the trial were not being treated with equal fairness, the application for transfer ought to be granted.

The learned counsel also relied upon a decision reported in AIR 1933 269 (Nagpur) for the proposition that when the Magistrate's conduct though not biased on behalf of the prosecution, has nevertheless been at this unfair to the accused for the ends of justice, a transfer of the case is expedient. There is also no dispute about this proposition but it has no application to the case on hand.

The learned counsel also relied on a decision reported in Shivasharan Reddy v. State (AIR 1968 Mys 119) wherein it is observed that it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases, the test is not whether in fact a bias has affected the judgment, the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. There is also no dispute about this position of law

The learned counsel strongly relied upon a decision of this court reported in Ramesh v. State (1989 L.W (Crl.) 46) wherein it is stated that in a criminal case it is not enough that justice is done, but what is more important is that parties must feel that justice has been done. Even if the apprehension of the petitioner may at the first blush seem to be rather foolish, if the Court holds that it could be real and genuine, especially when the prosecution relates to a capital case, it will be in the interests of justice, to order transfer. Tins decision is also not applicable since the case cited relates to one u/s 302 I.P.C. a murder case punishable with life imprisonment or death. Whereas, the present case of the petitioner is one under the Prevention of Corruption Act and the maximum punishment is only 7 years. Hence, this decision also will not be of any help to the petitioner

The learned Public Prosecutor relied upon a decision reported in AIR 1926 470 (Lahore) for the proposition that it is not desirable that a litigant should be able to get a transfer at his will and pleasure by making an application containing unfounded allegations against a judicial officer, and then representing that after making those allegations he could not expect to get justice from him. If this principle is accepted every application for transfer is bound to succeed. This decision is applicable to the case on hand.

They also placed reliance upon a decision reported in AIR 1928 276 (Lahore) wherein it is observed that application for transfer cannot be granted lightly on fanciful and sentimental grounds.

I have carefully gone through the submissions made by the learned counsel on either side and there is no difficulty in coming to the conclusion that the grounds now raised by the learned counsel for the petitioner are not sufficient to effect the transfer of a case. It cannot be said that a fair and impartial trial cannot be held in that court. The grounds now raised will not create any reasonable apprehension in the mind of an ordinary accused. If the contentions now raised by the petitioner are accepted, as stated in AIR 1926 470 (Lahore) all the transfer applications are bound to be allowed. Whenever party comes to the court, they are bound to give certain grounds and the grounds by which itself may not be sufficient to order transfer. Simply because certain grounds or allegations are levelled against the Presiding Officer, the case cannot be transferred. Now-a-days it is quite probable that allegations are levelled against the Officers for reasons best known to them. Hence, I am of the view that the grounds now raised by the petitioner are not sufficient to order transfer of the case and as such the petitioner lacks in bonafide.

For the reasons stated above, the petition is devoid of any merit and accordingly it is dismissed. The Trial Court is directed to dispose the case as early as possible taking into consideration of the fact that the Special Court has been constituted only for speedy trial of the case.