1. The applicant accused is being tried in Criminal Case No. 76 of 1972 pending on the file of Judicial Magistrate First Class, Wani. When the case reached the stage of arguments, the applicant accused filed an application before the Sessions Judge, Yeotmal which-is the transfer application being numbered as Miscellaneous Criminal Case No. 36 of 1973 under Section 526 of the Criminal Procedure Code. The transfer application wag ultimately heard bv Shri P. V. Padhye. Additional Sessions Judge. Yeotmal who rejected it. Thereafter the applicant has moved this- Court with a prayer that his Criminal case be transferred. The facts of the Case are that applicant appeared as a witness in Criminal Case No. 61! of 1971 presumably aa a defence witness and Sub-Government Pleader Shri Kedar who is practising at Wani cross-examined him. It appears that the applicant ig an ex-serviceman. He is a Muslim by religion. He was allotted certain lands at village Pisgaon bv the Government and it is the allegation that he is the critic of Islam and he was delivering speeches against the practice prevailing in Muslim religion and as a result of this, the Muslims of Wani had gone against him. It is the allegation that Advocate Kedar, Advocate Nevalekar, Advocate Mardikar and one Babu Ambulkar Advocate persuaded him to convert himself into Hinduism but he did not. agree. This is the background which we do not find in the application but is advanced at the Bar to show the general atmosphere in Wani town. It is seen that during the cross-examination bv Shri Kedar, he put a question to the applicant whether he had converted to Hinduism. The applicant was in the witness-box and the trial was proceeding. He was annoyed and slapped Shri Kedar in the Court in the presence of the Court and the other persons. Shri Kedar filed a com-plaint with the Police. Ultimately a charge-sheet was filed under Section 332 against the accused and a Criminal case mentioned above was filed. It is seen and Shri Jaiswal was not able to enlighten as to how many witnesses were examined but it appears that the whole of the prosecution evidence was over. The witnesses were cross-examined bv the applicant and at no stage in the trial Court at any time he had alleged that he was not getting any assistance from the Bar Members or that he had sought anv assistance of the Bar Members to conduct this trial but nobody was willing to defend him. It appears that this ground was made for the first time before the Additional Sessions Judge before whom the transfer application was filed. This position is not disputed bv Shri Jaiswal. It is further seen that the applicant, when his case was pending before the learned Magistrate on 14-8-1973 for the argument sent a telegram that he was ill. The learned Magistrate did not entertain anv such telegram. He did not entertain the request communicated to him by telegram because generally the Courts do not entertain request of adjournment on the basis of the correspondence. However, the learned Judge in order to secure the accused's presence issued a bailable warrant and fixed 29-8-1973 to be the date of argument. On this date also the applicant was not present. Therefore, a non-bailable warrant was issued against him. It appears that bv post a medical certificate has been filed by the applicant expressing his inability due to illness to attend the Court. We further find from the allegations made in the application of transfer before the Additional Sessions Judge that the applicant was present in the Court on 8-9-1973 and on that date he was directed bv the learned Magistrate to argue his case on 12-9-1973. From the recitals of his own application for transfer it is therefore, clear that till this date he did not brine it to the notice of the learned Judge that he wanted a legal assistance even for arguing his case. There is nothing on record to come to that conclusion. Thereafter it appears that he filed the present application raisin? two grounds; one is that he did not get legal assistance; the other was that the Magistrate was prejudiced against the applicant because he had issued bailable as well as non-bailable warrants against him. The third ground adduced before me bv Shri Jaiswal in additional to these two grounds wag that the atmosphere of whole town of Wani which is a small town is surcharged with the feelings against the accused. Under such circumstances, the Magistrate would not be free from that prejudice prevailing in the town and. therefore, the applicant would not get a fair and impartial trial at the hands ol the Magistrate.
2. The learned Additional Sessions Judge rejected the two grounds stated above on the ground that no complaint was ever made that legal assistance was required by the applicant and was not made available to him. He rejected the contention that the Magistrate was biased against the applicant.
3. Feeling aggrieved, this transfer application has been preferred. I have already stated the contentions raised before me by Shri Jaiswal. It appears that this matter was admitted bv my learned brother Masodkar, J. He had issued a notice to the Bar Council of Maharashtra because there was an allegation before him that the Advocates of Wani were not ready to accept the brief of the a Delicate to defend him before the Magistrate and today the President of the Bar Council of Maharashtra Shri Manohar through the Additional Government Pleader submitted a letter that on enquiry from the Advocates at Wani he found that the applicant never approached any of the Advocates for legal assistance.
4. Shri Jaiswal, the learned Advocate for the applicant submitted that the transfer application made bv him falls under Clause (1) of Section 526 of the Criminal Procedure Code i.e., that a fair and impartial inquiry or trial cannot be had in anv Criminal Court subordinate to this High Court; that is, a fair and impartial trial of the applicant cannot be held in the Court of Judicial Magistrate Wani. and. therefore, it would be expedient for the ends of Justice to transfer the Criminal Case. In support he has relied upon four authorities which lav down certain propositions but in mv opinion those principles are not applicable to the facts of the present case. The observations reported in Hazara Singh v. State of Punjab : 4SCR1 was pressed with advantage in this case by Shri Jaiswal. The relevant observation runs on page 721. It is as under:-
One of the highest principles in the administration of law is that justice should not only be done but should be seen to be done. In the: present case, there is enough allegation to show that certain strong parties are,opposed to the ^petitioner in various ways. Whether they would exercise anv influence upon the magistracy and whether magistracy would be able to withstand such a pressure, if 'made, is not germane to the present petition. We are of opinion that the petitioner has, by his affidavit, made out sufficient circumstances from which it can be inferred that he does entertain, and entertain reasonably, an apprehension that he would not get justice in these cases.
I am respectfully in agreement with the ^observations stated above but the question is whether these observations are .applicable to the facts of the present case or not. In the reported case it would be seen that the petitioner was elected as Member of Legislative Assembly of Punjab, He was elected in the General Elections after defeating S. Hardin Singh, the brother-in-law of the Chief Minister of, the State, The further facts in his affidavit would go to show, that he did entertain a reasonable apprehension. What is the reasonable apprehension felt bv the applicant in the instant case is not disclosed. It is vaguely stated that the whole town of Wani is surcharged with an animus environment against the applicant. One fails to understand what is concretely the applicant wants to say about it. The applicant is prosecuted under Section 332 of the Indian Penal Code. He has to meet a charge of slapping one Shri Kedar in the Court. He did defend himself and the prosecution evidence was over and the Criminal case is fixed at the stage of the argument. It appears to me that it is not a reasonable apprehension but a fanciful or imaginary apprehension and such a'fanciful1 or imaginary apprehension has to be curbed and not to be entertained lishtlv. Shri Jaiswal then relied on the observations of a case reported in Lalta v. Zahoor Ahmad . The relevant head-note runs as under:-
Whether no practitioner in a district ordinarily employed in Criminal cases is willing to act for the accused, it is a good ground for transfer of the case to another District.
There cannot be any quarrel with this .proposition. Every accused person has a right to get legal assistance of his choice, IE he has sufficient pecuniary position at 'his command to engage services of a legal practitioner but there are no facts established in this case that at any time, upto the stage of the argument or even thereafter the applicant approached anv advocate of Wani and that the Advocate was not ready to accept his brief. Therefore, the principles though good are not applicable to the facts of the present case.
5. Reliance was placed on the Supreme Court case reported in G X Francis v. Banke Bihari Singh. : 1958CriLJ569 . It would! be seen from the facts of the case that the complainant was a member of the i royal family of Jashpur. He resides at Jashpurnagar. The accused are scattered over India. In his affidavit the complainant had stated that in or about 1922 there was a rebellion in Jashpur State against the Ruling Dynasty secretly aimed at installing a Christian convert oa the Gaddi of Jashpur. The Missionaries of Jashpur were responsible for it. Since this time the Catholic Missionaries entertain a deep-rooted ill-will, enmity and hatred towards the complainant. 'It appears that a defamation case was filed bv the complainant against the Missionaries and in that light, the observations were made that if the town was surcharged! with the 'atmosphere of a religious tension then it would not be proper to hold the trial in that town. The observations are made in the light of the facts established! in that case and they are not applicable to the facts of the present case because one fails to find what is the general atmosphere in the town of Wani. Is he riot getting a witness for his defence It is not shown bv him that he wanted to examine any defence witness. Because that' staee is over the case was fixed for arguments and at that time he filed the transfer application. The fourth case relied on bv Shri Jaiswal is reported in Bholanath Rakshit v. Bisweswar Rakshit. : AIR1957Cal683 The principle laid down is :-.
Where the Magistrate was of the view that the accused had conspired together to delay the hearing of the case and that for that purpose they had obtained false certificates from different physicians, but the record did not disclose the basis for such an opinion:
Held that the case should be trans- ferred from the Magistrate's file to the file of another Magistrate to be selected by the District Magistrate.
It is seen from the observations in paragraph No. 5 of the judgment that the learned Magistrate made some remarks while passing the order which are already-reproduced above. The facts established; in this case are that the case was fixed for argument on 14th August 1973. The applicant did not remain present but sent a telegram. Thereafter bailable warrant was issued. It appears that the bailable warrant was served. Still he did not appear but sent a medical certificate that he was ill. Hence non-bailable warrant was issued. It appears that the non-bailable warrant was not served but the applicant remained present and on 8-9-1973 the Court gave him to understand that the case would be heard on 12th. This would show that the Court had granted him all kind 'of latitude and it does not chow that the Court is biased or prejudiced against him. It appears, as I have already stated, to be a fanciful and imaginary apprehension on the part of the .applicant. In that view of the matter. the present transfer application is rejected.