(1) This is a petition for transfer under Section 26 Cr. P.C. The petitioner is the complainant who filed a report before the police of Chitapur against accused No. 1 and 26 others for offences under Sections 395, 452 read with 149 I.P.C. complaining that A-1 with the help of others had committed decoity in respect of 150 bags of Jawar kept in his godown. The police filed the charge-sheet against the accused-respondents before the Munsiff-Magistrate, Chitapur on 19-5-65. Since the presiding officer of that court happened to be a tenant of A-1, he made a reference to the Sessions Judge Gulbarga, for transfer of that case some other court for enquiry. The learned Sessions Judge passed an order transferring the case to the file of the Munsiff-magistrate, Sedam. The Munsiff-Magistrate, Sedam, committed the accused to Sessions for trial. The accused-respondents stand their trial before the Sessions Judge, Gulbarga for offences under Sections 295, commenced on 27-7-1967 and a witness was examined for the prosecution, the petitioner who was being examined as P. W. 2 resented an application to the Sessions Judge stating that he would move the High Court for transfer of the case under S. 526 Cr. P. C. to some other court of Session. The Sessions Judge of Gulbarga passed an order as under:
'Complainant wants to get the case transferred though the Asst. Public Prosecutor does not want it. Since the complainant is an 'interested person' within the meaning of S. 526 Cr. P. C. he can move for transfer. Hence, the case is adjourned for a month on the complainant executing a bond for Rs. 200 as required by S. 526 (8) Cr. P. C.'
Thereafter, the petitioner filed this petition for transfer of Sessions Case No. 21/8/1966 pending trial before the Sessions Judge at Gulbarga to some other Sessions Court. The petitioner has filed an affidavit in support of the petition. The 2nd respondent on his behalf and on behalf of other respondents in the case except respondents 12 and 25, has filed a counter-affidavit. Respondent No.1 the State of Mysore, has not filed any counter-affidavit.
(2) Before going into the merits of the case, it is necessary to deal with two objections raised by Mr. Malimath, learned counsel appearing for respondents 2 to 11, 13 to 24 and 26 to 28, which are in the nature of preliminary objections in this case. The first objection raised by Mr. Malimath is that the petitioner has no locus stand to move for transfer of this case. The second objection is that the affidavit filed by the petitioner is not in accordance with the provisions of Section 539A Cr. P. C. and therefore it cannot be looked into as evidence coming under the said provisions.
(3) As regards the first objection, Mr. Malimath relied upon the provisions f Section 526(3) and (8) Cr. P. C and argued that the expression 'party interested' found in both the sub-sections does not include the petitioner who is not a complainant but who is only an informant and who laid a report before the police in a cognizable case. He urged that the petitioner may be considered to be a person interested but under no circumstances he can be treated as a party interested as required under sub-ss. (3) and (8) of section 526 Cr. P. C. referred to above. Further he urged that the petitioner intimated the court of his intention to move for transfer after one P. W. was examined. This, according to Mr. Malimath, is done with the mala fide intention to harass the accused. On the other hand, Mr. Dahpande, learned Advocate for the petitioner urged that the petitioner who laid a complaint before the police is a party interested and he has every right under these two sub-sections to move for a transfer of the case pending before the Sessions Judge, Gulbarga, and that he can do so at any stage before the defence closes its case. I find no force in the contention advanced by Mr. Malimath while I see great deal of force in the argument advanced by Mr. Deshpande. Mr. Deshpande invited my attention to a decision in N. C. Bose v. Probodh Dutta Gupta AIR 1955 Assam 116 and strongly relied upon the said decision herein it is laid down as follows:
'An aggrieved person who sets the machinery of law in motion by a report to the police is a party interested within the meaning of Clause (3) and has locus stand to apply for transfer of the case.'
Further Mr.Malimath brought to my notice another decision in Jag Bhushan Jain v. State, : AIR1962All288 although he did not agree with the ratio of the decision in that case. In the said decision, it is laid down as follows:
'For effecting a transfer under S. 526 of a case prosecuted by the State from one criminal court to another criminal court, the expression 'party interested' is wide enough to include an aggrieved person who lodges a police report and thereby sets the machinery of law in motion.'
The argument of Mr. Malimath in not agreeing with the ratio of this decision is that their Lordships of the Allahabad High Court have not met the points raised in : AIR1953All698 which is a decision given by a Single Judge of that High Court. In that decision it is laid down as follows:
'The word 'party' is not defined in the Code of Criminal Procedure. When it is used with reference to a proceeding in a Court, its primary meaning is a litigant. It means a person who has a part to play in the proceeding. In the absence of anything to the contrary in the context, the primary meaning of a word should be adopted.
Section 526 (1) (d), Criminal P.C. distinguishes between 'parties' and 'witnesses'; a witness is not considered to be a party. The status of a person who has been injured during the commission of a crime or who makes a report about it to the police is that of a witness only, unless he is the actual complainant before the Court. If a person merely on account of his interest becomes a party, the word 'interested' in the phrase 'party interested' would become redundant. A person who makes a report is injured on account of the commission of the crime or is related to the person injured or killed, therefore, does not thereby become 'a party interested' within the meaning of S. 526 (3) and has no right to apply for transfer. The High Court cannot go into the merits of the application.'
The Division Bench decision in : AIR1962All288 has considered in detail the ratio of the decision laid down in : AIR1953All698 and also the ratio of the decision in FIR 1920 Pat 836 and have overruled the earlier Single Judge's decision reported in : AIR1953All698 , I am in respectful agreement with the ratio of the decisions of the Assam High Court and Allahabad High Court quoted above and I find no good ground to differ from the ratio of the decisions referred to above and I am unable to persuade myself to follow the decision of the Single Judge reported in : AIR1953All698 . The scope of sub-section (8) of Section 526 Cr. P. C. was enlarged by the Act XXI of 1936 substituting the words 'any party interested'. Further the said amending Act also provided that in any trial any party interested may intimate the court any stage before the defence closes its case that he intends to make an application for transfer under Section 526 Cr. P. C. Therefore, in my humble opinion an informant in a cognizable case is a party interested and that he can intimate the court of his intention to apply for transfer any stage before the defence closes its case. Therefore, I find no merit in the contention that the petitioner is not a party interested as required under sub-sections (3) and (8) of Section 526 Cr. P. C. Therefore, the first objection of Mr. Malimath fails.
(4) The other preliminary objection raised by Mr. Malimath is about the affidavit filed by the petitioner in the this case. Mr. Malimath argued that the facts are stated in the affidavit in a dubious way. It is not made specifically clear as to what is based on the personal knowledge of the petitioner and what is based on the information and what is based on his belief. Therefore, Mr. Malimath contends that the affidavit is not in accordance with the requirements of Section 539A (2) Cr. P. C. In support of the above contention, Mr. Malimath first relied upon the decision in Nem Chand v. The State, : AIR1953All99 . In the said decision, it is held as follows:
'An affidavit is completely useless when all the facts averred in it have been verified by the deponent as being true to his belief. The High Court cannot take into consideration what the deponent may believe. The affidavit should have been verified either on personal knowledge or on information derived from inspection of records. In case the deponent could not do it, it should have been sworn by a person who could do so.'
Mr. Deshpande pointed out that the affidavit which was the subject matter in the above decision refers only to the belief of the deponent and therefore it was not in accordance with the provisions of Section 539A (2) Cr. P. C. He urged that in this case, the petitioner has stated at the end of his affidavit that the contents of the affidavit are true and correct to the best of his personal knowledge, information and belief and therefore he contended that the affidavit is in accordance with the provisions of Section 539A (2) Cr. P. C. Sri Malimath nextly relied upon a decision in Sant Ram v. State AIR 1952 J. & K. 28. In the said decision, the point considered by the Court, as pointed out by Mr. Deshpande, was that the fact of intimidation by the accused was sought to be proved in evidence by affidavit. The Court held that such a course was not open as such evidence is required to be tested on the touch-stone of cross-examination. Therefore, it was not the form of the affidavit that was considered by the court, but it was the intimidation offered by the accused that was required to be proved in evidence. On a reading of the affidavit in the instant case, it cannot be said that it has been made in violation of the provisions of section 539A (2) Cr. P. C. In the several paragraphs the averments made indicate that they are within the personal knowledge of the petitioner. No doubt, in the last para, the petitioner has not stated what were the facts which were in his personal knowledge and what were the facts which he got on information and what were the facts which he has stated on his belief. But this can be gathered on a reading of the entire affidavit. Therefore, this objection has no force and should fail.
(5) Nextly, Mr. Malimath urged that even if the petitioner has a right to file an application for transfer, since the Public Prosecutor has opposed it, the voice of the Public prosecutor should prevail over that of the petitioner. Mr. Malimath invited my attention to several decisions. While admitting that the Public prosecutor cannot be given such an absolute power which Mr. Malimath calls 'veto power' to come in the way of transfer of cases, he has urged that whenever the Public prosecutor opposes the transfer petition, more weight has to be given to the Public prosecutor's say and the case should not be transferred. My attention was invited to the following decisions: In Sheodhari Rai v. Jhingur Rai AIR 1926 Pat 818 it is held as follows:
'A private person, who lodges an information before the police of a certain offence and a criminal prosecution is started upon that information, is a person who is interested in the prosecution within the meaning of Clause (3) of S. 526, and therefore he is entitled to apply for transfer under Section 526, but his rights are subordinate to those of the Crown: in the person who is conducting the prosecution on behalf of the Crown, is unwilling to have the case transferred, the person at whose instance the case was started has no right to get the case transferred.'
In Rajagopal Rao v. Narayana Reddy AIR 1929 Mad 844 it is held as follows:
'A party interested in S. 526(3) does not necessarily mean a complainant, i.e. a person presenting a 'Complaint' as defined in S. 4(h). But may include a police informant. Moreover, where the conduct of a case is in the hands of a Public prosecutor and where there is a conflict between the Public Prosecutor and 'the party interested' the right of the former must prevail; because it is the Public prosecutor, and not the informant, who is primarily responsible for the conduct of the case.'
In Re. Abdul Naseer : AIR1937All664 it is held as follows:
'If the public prosecutor or the person who is conducting the prosecution on behalf of the Crown is unwilling to have the case transferred, the person at whose instance the case was transferred has no power to get the case transferred, for his rights are subordinate to those of the Crown.'
It is significant to note that in all these three decisions, the informant to the police is held to be a party interested who can file an application for transfer. If the party interested satisfies the court that there are reasonable apprehensions in his mind that fair and impartial trial cannot be had in a criminal court subordinate to the High Court and if the Public Prosecutor fails to show that such apprehensions are baseless, it will work great hardship to the party interested if we accept the principle that the Public prosecutor's voice should prevail in such cases. Therefore, I respectfully disagree with the ratio of the decisions cited by Mr. Malimath and quoted above. The question whether the Public Prosecutor's opposition to the transfer of a case should prevail or not depends upon the facts and circumstances in each case. If the petitioner makes out a good case for transfer, then the say of the Public Prosecutor cannot prevail. But, if the petitioner does not make out a case as required under Section 526 Cr. P. C. naturally his request for transfer fails. Therefore, I do not see much substance in the contention raised by Mr. Malimath.
(6) Now, coming to the merits of the case. Sri Despande urged that the Sessions Judge who is now presiding over the Sessions Court at Gulbarga was a tenant of A-1 when he was the Munsiff-magistrate at Chitapur and was paying rents to A-1. He further urged that the Sessions Judge has decided the family disputes regarding lands between A-1, the complainant and their father and that he had also given a decree in terms of the award. Mr. Deshpande also pointed out that the Sessions Judge has extra judicial knowledge about the family affairs of the petitioner the accused and his father and that therefore the petitioner has entertained reasonable apprehension that the present Sessions Judge would be influenced by his knowledge about the family affairs and that there would not be fair and impartial trial in the case pending before him. On the other hand Mr. Malimath contended that there is no bona fide intention on the part of the petitioner in filing this petition. he urged that the real intention of the petitioner is to harass the first accused in the case. He also urged that nothing has been shown to have transpired while the petitioner was examined-in-chief and cross-examined before the learned Sessions Judge to entertain the apprehension that there would not be a fair and impartial trial at the hands of the present Sessions Judge. He has further denied the fact that the Sessions Judge was over the tenant of A-1. It is also submitted that A-1 had no occasion to meet the Sessions Judge in person or has any acquaintance with him and he saw the learned Sessions Judge for the first time in the court when the trial started. It is, therefore, necessary to find out whether the apprehensions of the petitioner have any reasonable basis. The petitioner has averred in paragraph 5 of the affidavit as follows:
'The present Sessions Judge before whom the trial of my case is pending is Shri D. M. Hungarki. he was about 6 years ago Munsiff-Magistrate at Chitapur. Accused No. 1 Chandra Sekhar and two of his younger brothers have got some houses at Chitapur. Shri Hungarki was then residing in one of his houses. He was a tenant of accused No. 1 in respect of that house for about 21/2 years. He knows accused No. 1 well and the family of his. Besides when he was serving as a Munsiff at Chitapur there was a dispute about partition between me and accused No. 1 and others. There were Arbitration proceedings and the awards were filed before him as Munsiff. He had also decided family disputes of lands of accused No. 1.' While dealing with these averments in the affidavit, the learned Sessions Judge has stated in para 5 as follows in his remarks: 'Then regarding his allegation in Para 5 of his affidavit, that I was a Munsiff-magistrate at Chitapur about 6 years ago that that I was residing in one of the houses of A-1 as his tenant for 21/2 years and that I know A-1 and his family well and that there was a dispute between him and A-1 and others and there were arbitration proceedings and awards were filed before me as Munsiff and I had also decided family disputes of lands of A-1 etc. It is true that I was Munsiff-Magistrate at Chitapur about 6 years ago, but it is not true that I was residing in one of the house of A-1 as his tenant and that I knew him and his family members well. I had taken a house on rent from his father Timma Reddy. That Timma Reddy was reluctant to give that house to me on rent on the ground that one of my predecessors Sri G. H. Hiremath had not paid his rent for nearly 2 years or so and as such he would not give his house on rent to any Judicial officer. I told him that I would pay rent in advance and if Sri. G. H. Hiremath had not paid his rent for 2 years, he can file a suit in my Court even and recover the same. Then he agreed to give that house to me on rent. After some time he also filed a suit against Sri G. H. Hiremath, the former Munsiff-Magistrate, Chitapur for recovery of arrears of rent in respect of the same houses occupied by me then and recovered the same. To avoid all such unpleasant things, I started paying my rent in advance every month and the minim of that Timma Reddy was collecting the rent and giving receipts under the signature of that Timma Reddy himself. So it is false for the petitioner to allege that I was the tenant of A-1 and A-1 was collecting rent and I knew A-1 and his family well. In fact I had no occasion to see A-1 or any other member of his family during my stay at Chitapur I saw him for the first time in this case in Court. 'From the records produced by the prosecution in this Sessions Case, I find that this petitioner has filed a suit No. 106/1/1960 against his father Timma Reddy for declaration of his right of ownership regarding some suit property and for issue of a permanent injunction against him and that suit was compromised on 12-8-1960 and I had recorded that compromise and passed the decree in terms of that compromise.' '
(Underlining (herein ' ') is mine)
As can be seen above, the learned Sessions judge has stated that he was not the tenant of A-1, but he admits that he was the tenant of Timma Reddy, father of A-1 as well as the petitioner. From the last portion of the remarks underlined above it is clear that the petitioner had filed a suit No. 106/1/1960 against his father Timma Reddy for declaration of his right of ownership regarding some suit property and for issue of a permanent injunction against his father and the suit was compromised on 12-8-1960. The Sessions Judge has recorded the compromise. The papers relating to those suits are produced in this Sessions Case as documentary evidence. It is further significant to note that the learned sessions Judge has not specifically denied the averment in Para 5 of the petitioner's affidavit which reads as under:
'He had also decided family disputes of lands of accused No. 1.'
It is no doubt true that A-1 in his counter affidavit has totally denied this. But from a reading of the averments made in the affidavit of the petitioner and also the remarks sent by the learned Sessions Judge, it is not unreasonable to infer that the learned Sessions Judge possesses some knowledge of the family affairs of A-1, his father, and the petitioner It is on account of this knowledge that the petitioner entertains apprehension that there would not be fair and impartial trial at the hands of the present Sessions Judge. In cases of this type, the test is laid down by the Supreme Court in Manak Lal v. Dr. Prem Chand : 1SCR575 which reads as follows:
'It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi judicial proceedings must be able to act judicially; and 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.'
The averments made in the affidavit of the petitioner and the remarks sent by the learned Sessions Judge which are quoted above in extensor make it clear that the apprehensions of the petitioner are reasonable and based on certain facts and circumstances which came into being not after the application was filed before this Court, but which existed from the year 1960 when the present Sessions Judge was the presiding officer of the Munsiff-Magistrate's Court at Chitapur. Therefore, the facts and circumstances in this case fall within the test laid down by the Supreme Court.
(7) The learned Public Prosecutor invited my attention to a decision of this Court in Criminal Petition No. 300 of 1967 (Mys) wherein his Lordship the Chief Justice has observed as follows:
'The mere fact that the petitioner holds out that he has an apprehension in his mind that he will not get a fair trial at the hands of the learned Judge, would not by itself be sufficient to transfer the case from one Court to another. The Court must entertain a feeling that there is a reasonable ground for the petitioner to have that apprehension in his mind.'
There is no dispute with regard to the principle of law as laid down by His Lordship the Chief Justice. The facts of this case mentioned above make it abundantly clear that there is justification for the petitioner to entertain the apprehension that he would not get a fair and impartial trial at the hands of the learned Sessions Judge and such apprehension is quite reasonable. It may be relevant to note that the Munsiff-Magistrate of Chitapur voluntarily asked for the transfer of the case as he happened to be tenant under A-1. The same Sessions Judge had ordered transfer of the case to the file of the Munsiff-Magistrate, Sedam. When precisely the same fact with other attendant circumstances was brought to the notice of the learned Sessions Judge, he himself should have moved this Court for transfer of the case to some other Sessions Court. The Sessions Judge has failed to do so. Therefore, this case calls for transfer from the file of the Sessions judge, Gulbarga, to some other Sessions Court.
(8) Mr. Malimath pointed out that the petitioner in the course of his affidavit has deliberately made a false statement to the effect that he presented an application for transfer before the trial commenced. It is no doubt true that it is not a correct statement. But, it is on record that an adjournment was sought for at the outset on the ground that a witness was unwell and was not in a position to attend the Court. All that can be said about it is that the petitioner has made an over-statement of the fact or has failed to be accurate.
(9) Before parting with this matter, I am constrained to observe that the learned Sessions Judge in the course of his remarks has referred to certain matters which were quite unnecessary. It would have been better if he had only confined his remarks to the averments made by the petitioner.
(10) Mr. Malimath submitted that this case should not be transferred from the Sessions Court, Gulbarga, to some other Court, as it would cause great inconvenience to the accused as well as to the witnesses who are large in number. Mr. Deshpande invited my attention to a decision in The State v. Fida Mohammed, AIR 197 J & K 48(1), Kill J. in the course of the judgment observed as follows:
'The accused have engaged counsel at Srinagar and they may be very much handicapped in conducting their defence at Baramulla. It is true that convenience and expenditure are factors to be considered in the trial of a case but it should be borne in mind that considerations of justice are even more important than these considerations and must prevail over the latter in matters of transfer.'
(11) In view of the principle of law laid down in the above decisions, the contention of Mr. Malimath that it is inconvenient to the parties' witnesses and the Advocates..... not be accepted.
(12) For the reasons stated above, Sessions Case No. 21/8/1966 pending on the file of the Sessions Judge, Gulbarga, is transferred to the file of the Sessions Judge, Raichur, for disposal in accordance with law.
(13) Petition allowed