C. Honniah, J.
1. This is an application for transfer of a case pending against the petitioner in the Court of the Sessions Judge, Shimoga. The stage at which the case has reached is that arguments were heard and the only thing that remained to be done was to pronounce judgment. The principal question which has been raised is whether on the facts and circumstances of this case, the case should be transferred to another Court under the provisions of Section 407 (I)(a) of the Code of Criminal Procedure, 1973.
2. It is necessary to state the facts out of which this question has arisen. The petitioner was convicted under Rule 6 of the Karnataka Excise (Denatured Spirits and Denatured Spirituous Preparations) Rules 1967 read with Section 14(2) and Section 32 of the Karnataka Excise Act, 1965 and was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rupees 100/- and in default, to undergo rigorous imprisonment for one week by the Special First Class Magistrate, Shimoga. Aggrieved by this decision, the petitioner preferred an appeal to the Court of Sessions at the same place.
3. The appeal was heard by the learned Sessions Judge and the judgment was reserved. On the day the judgment was to be pronounced, the petitioner filed an application under Section 391 of the Code requesting the Court to record additional evidence as it was necessary to arrive at a just decision. Time was given to the Public Prosecutor to file objections to that application. The public prosecutor filed objections on 24-5-1974. In that the Public Prosecutor stated among other things that the petitioner was a beggar in the eye of law. This was objected to by the Counsel for the petitioner. The public prosecutor appears to have made certain remarks against the petitioner and seems to have said that he was justified in making such remarks. At this stage, the Sessions Judge intervened and said that the Public Prosecutor was a man of integrity and in ability second to none. I may point out here that the Public Prosecutor was not justified in making such remarks. He should not and ought not to have made such remarks. No one is a beggar before law. But all are equal.
4. When this application was being heard, the Sessions Judge expressed his opinion with regard to the merits of the case by stating that the petitioner not only should be convicted but also deserved deterrent sentence obviously pre-judging the issue.
5. At this stage, the petitioner filecf. an application stating that he would move this Court for transfer of the case on the ground that he was apprehensive of getting fair and impartial decision. That application was rejected on the ground that the appeal was an old one. The case is now stayed pending the order of this Court on the application for transfer.
6. It is seen from the allegations-made in the affidavit of the petitioner and the remarks of the Sessions Judge that there were exchanges of words between the Judge and the Counsel for the accused; both appear to have gone out of the case. This has given room to distrust the Judge.
7. The principle on which this Court acts in matters of this kind has been laid down more than once. The principle was laid down in a very early English case, the case of Serjeant v. Dale (1877) 2 QBD 588 : 46 LJQB 781 where Lush, J, expressed the-principle as follows:
The law has regard, not so much per--haps to the motives which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which' might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.'
8. The same principle was again emphasised by Stone, Section 4, in Usman Haroon v. Emperor AIR 1947 Bom 409 : 48 Cri LJ 721 where the learned Chief Justice observed that Section 526 of the Code i-f Criminal Procedure (old) which is similar to-Section 407 of the Code of Criminal Procedure, 1973, was not exhaustive ;in apart from the susceptibilities of the accused, if circumstances existed or events had happened, which were calculated to create in the . mind of the accused the reasonable apprehension that he would not be fairly treated at his trial, a transfer of the case should be made.
9. In the case before me, the expression of opinion by the learned Judge that the accused should not only be convicted but deserved deterrent sentence, though was made after the arguments were heard but during the hearing of the application for recording additional evidence, on the facts of this case, he had pre-judged the issue and further proceedings could serve no useful purpose. When the arguments were heard and the case was posted to judgment, the accused had no grievance at all. The difficulty arose when the application for recording additional evidence was being heard. He thus gave an indication of his mind on a vital aspect of the matter. Where opinion is expressed in such unequivocal terms as in this case, it provides a basis for a reasonable apprehension in the mind of the party against whom it is expressed. When considering the question whether circumstances could create reasonable apprehension that a fair and impartial decision will not be had, the Court has to put itself in the position of the accused seeking transfer and to look at the matter as it would appear to him. The observations of the learned Judge may admit of some explanation. But if they tend to create in the mind of the accused an apprehension which may not be regarded as unfounded that he may not have a fair decision, it would be undoubtedly expedient in the interest of justice to order transfer without entertaining the slightest doubt about the impartiality of the learned Judge. The learned Judge in his explanation has fairly and squarely stated what all happened in the Court and one remarkable thing about it is that he has not tried to justify his remarks. But it is of the utmost importance that litigants should have faith and confidence in the impartiality of the Courts. This confidence has to be maintained at all events. It is not enough to do justice. It must be seen to be done.
10. As a result of all the considerations mentioned above, I have come to the conclusion that this is a fit case in which the application for transfer should be allowed.
11. I, therefore, allow this application and transfer the case (Cr. A. 38/1972) pending ;against the accused to the Sessions Judge, 'Chickmagalur who will deal with the case and dispose of the same according to law.