Raghubar Dayal, J.
1. This is an application under Section 526, Criminal P. C., by the State of Uttar Pradesh for the transfer of a Sessions Trial against Ram Bahadur Singh under Sections 302, 363 and 366, read with Section 120-B of the Indian Penal Code from the Court of Sri V. N. Prasad, District and Sessions Judge, Kanpur, to some other Court outside the district of Kanpur on the allegations that the attitude adopted by the learned Sessions Judge as disclosed in the accompanying affidavit led to the apprehension that the evidence adduced by the prosecution subsequent to the commencement of the trial on the 9th of July, 1956, would not be adjudged fairlyand that the atmosphere of Kanpur was surcharged for the trial of the case at Kanpur.
2. The affidavit accompanying this application was sworn by Sri Ram Narain Kankan, Public Prosecutor, C. I. D... I. B., U. P., Kanpur. Ii may also be mentioned here that the investigation of this case was done by the Criminal Investigation Department of the State.
3. In view of the statement of the learned Deputy Government Advocate withdrawing the application after a discussion of certain considerations affecting such an application and without any discussion of the matter on merits to the effect that he was authorised to withdraw this application, it is not necessary to detail the allegations made in the affidavit accompanying the application, the reply given to them by the learned Sessions Judge of Kanpur and the further narration of facts, during the course of the proceeding of the case, in the explanation of the learned Sessions Judge.
4. The application appeared to be unusual. Such an application by the State making allegations against a presiding officer of a Court of law appeared to me to be unusual, but its unusualnes vanished when I was referred by the learned Deputy Government Advocate to the case reported in State v. Ram Sia. : AIR1950All727 , An interval of six years is not sufficiently long to consider such applications unusual.
5. The unusualness of an application however has no place for consideration when discussing a matter judicially.
6. It was observed in the aforesaid case at page 730:
'We are bound to say that we do not think it right that the State, when it seeks transfer of a case from the Court of one Sessions Judge to that of another Sessions Judge, should utilise the services of a Police Officer for purposes of swearing affidavits. Such a procedure is calculated to affect the prestige as also the independence Of the judiciary. The affidavit in this case should have been sworn to by some one who was not a Police Officer.'
The observation by a Bench of this Court appears to have been ignored by the State. I put it to Mr. Sri Rama, the Deputy Government Advocate, and was given the explanation that the prosecuting inspector appointed by the State is not a member of the police force and it was under such an impression, I am told, that the affidavit accompanying the present application was sworn to by a prosecuting inspector of the Criminal Investigation Department. Such an impression appears to be wrong in view of what is mentioned in Paragraph 403 of the Police Regulations, published in 1953 and corrected upto December 1652.
It is mentioned therein that appointments to the rank of prosecuting and circle inspectors are made by the Deputy Inspectors General by the promotion Of sub-inspectors selected by a committee convened by the Inspector General. I have been shown G. O. No. 217/VIII-663/1947, dated the 4th May, 1950. This also shows that such an impression was wrong. Under this G. O. the Governor conveyed his sanction to the constitution of a separate cadre of Prosecution Branch in the Police Force. The recruitment to the rank of Assistant Public Prosecutors was to be from among law graduates. After training at the Police Training School, Moradabad, the selected persons were to be posted to police stations to gain experience of practical police work. It is clear, therefore, that prosecuting inspectors though appointed from among the law graduates are members of the police force.
7. In connection with the filing of affidavits necessitating an expression of the mind of the State I may refer to what has been said by a Bench of this Court of which I was a member in Raja Anand Brahma Sha v. State, Misc. Case No 18 of 1955 (All) (B) In connection with the affidavit' sworn by Tajuddin Ahmad' Siddiqi, an Assistant, Industries (B) Department, Government of U. P., Lucknow:
'But we must refer to one matter in particular. It is that it was left by the State to Tajuddin Ahmad Siddiqi to put before the Court what the intentions of the State of Uttar Pradesh were. We do not consider that he is the proper person to lay before the Court in an authorised way the mind of the State of Uttar Pradesh. He was not competent to speak for it. It must be under the rules of business of the Government that some Gazetted Officer of the rank of the Secretary or the Joint Secretary would be the proper person to make any : statement on behalf of the State. Such a competent person would be the right person to swear affidavits in connection with matters which relate to the intention or the mind of the State itself.'
8. It is the State which is the interested party. It should be the State which should feel apprehensive of not having a fair trial of the case in the Court concerned which would justify this Court to transfer the case for the purpose of satisfying it, the interested party, that the case would have a fair hearing. If the State does not allege that it has any such impression it would not be for the Court to say that the State must have such an apprehension and that it was necessary in the interests of justice that the case be tried by another Court. When the State applies for a transfer of a case on such a ground the affidavit to support an application for the transfer of the case should therefore be sworn by such a competent person as is referred to in the aforesaid observation Sri Ram Narain Kankan, the Public Prosecutor, was not an interested party. His impression about the attitude of the Court is irrelevant.
9. I may now refer to one matter appearing from the explanation of the learned Sessions Judge. Mr. H. N. Seth, Assistant Government Advocate, was appointed by the State to conduct the prosecution of this case before the Sessions Judge and he did conduct the proceedings on the 9th of July, the opening day of the trial. Prom the 10th of July the proceedings were conducted by Mr. Kankan. Prosecuting Inspector, C. I. D. In this connection the learned Sessions Judge notes in paragraph 5 of his explanation:
Next day on 10th July 1956 Sri Ram Narain Kankan sought my permission to conduct the case in place of Sri H. N. Seth Advocate saying that he was fully prepared with the case and though he was only a Prosecuting Inspector, he had the right to appear in the Sessions Court as he belonged to C. I. D. I granted the permission.'
I understand from Mr. Seth, who is present in Court to-day, that he had requested the Sessions Judge to allow Sri Kankan to conduct the case, it was within the discretion of the leading counsel in charge of the case to let the case be conducted by a junior entitled to appear in Court with the permission of the Court. The note of the Seseions Judge, however, tended to indicate that Sri Kankan expressed a sort of unconditional right to take over the conduct of the case from the hands of Mr. Seth.
It was in this light that I had the matter elucidated. The prosecuting inspectors and Deputy Superintendents of the Criminal Investigation Department, Uttar Pradesh, have been appointed by the Governor to be public prosecutors under Section492(1), Cr. P. O. for all cases coming before Magistrates or Courts of Sessions after investigation by officers of that Department in any district of Uttar Pradesh. There is no doubt therefore that Sri Kankan as prosecuting inspector of the Criminal Investigation Department was duly appointed public prosecutor for conducting this particular sesisions case in the Court of Sessions as it had been investigated by officers of that department.
This general appointment of prosecuting inspectors is subject, however, to particular orders of the Governor appointing any particular public prosecutor for any particular case or class of cases and was therefore subject to the appointment of Mr. Seth as public prosecutor for this case. No objection therefore can be taken to the Court's permitting Sri Kankan to conduct the prosecution at the request of Mr. Seth and after the permission of the Court. I may, however, make it clear that any such permission can be withdrawn by the Court subsequently if it finds good reasons to withdraw it.
It would be then for the State either to withdraw the special public prosecutor appointed for a particular case and let the prosecution be conducted by the public prosecutor in view of the general conferment of that power on certain individuals. But so long as there is a special Public Prosecutor, a prosecuting inspector or any other public prosecutor appointed under Section 492, Criminal P. C., in general will have the right to conduct the proceedings on behalf of the State subject to the limitations I have mentioned above.
10. Another general consideration which suggested, itself to me in connection with this application is whether an application for the transfer of a criminal case by the State on the ground that it did not expect a fair and impartial inquiry or trial from any particular criminal Court is contemplated by Section 526 of the Criminal P. C. I have no intention to express my final opinion on this question both in view of the fact that ultimately the present application is withdrawn and the fact that a Division Bench did consider such an application on merits in 1950. even though the question as framed by me was hot considered by it.
The question is of very great importance and would deserve consideration not only by this Court, if there be any future occasion for considering it, but by the legislature, if there be felt vagueness in the enacted provisions of Section 526, Criminal P. C. In this connection I shall, however, mention some considerations which emanate from the provisions of Section 526, Criminal P. C., and some considerations which do not emanate from its provisions but deserve consideration for the proper judicial administration in the State and the country.
11. Sub-section (1) of Section 526, Criminal P. C. does not refer to the way in which the High Court is to be approached for the transfer of a case. It only lays down that when certain facts appear to the High Court it may pass certain orders in connection with the transfer of that case.
12. Sub-section (3) lays down how the High Court is to act under this section. It says that the High Court may act either on the report of the lower Court, of on an application of a party interested, or on its own initiative. The expression 'party interested' does include the State and it has been so held previously. It is in view of this provision that the question I have framed relates to a transfer application of a particular kind, that is an application making allegations pf anticipated unfairness from presiding officer of a Court. The State without any embarrassment canmake an application for the transfer of a case from one Court to another on other considerations.
13. Sub-section (4) simply provides that a motion for transfer can be made by an Advocate General without his supporting the motion by an affidavit or affirmation. In view of Section 4(1) (a) 'Advocate General' includes also a Government Advocate or, where there is no Advocate General or Government Advocate, such officer as the State Government may. from time to time, appoint in this behalf. If ah Advocate General makes a motion for the transfer of a criminal case on any of the grounds mentioned in Clause (b) to (e) of sub-Section (1) of Section 526 there may be no necessity for his filing an affidavit, but in case the Advocate General makes an application for transfer indicating that a fair and impartial enquiry or trial cannot be had in any particular Court, I fail to see how such allegations can be made without an affidavit to be filed simultaneously with the prayer for transfer or be filed subsequently. I do not expect the Legislature to mean that whatever the Advocate General states be accepted at its face value by the Court. If I am right in this view of the matter, it tends to show that the Legislature did not contemplate an Advocate General to make an application for transfer on allegations which would require proof.
14. Sub-section (6) lays down a procedure to be followed by the Court when an accused makes an application for transfer of the case. It provides for a notice being given to the Public Prosecutor by the accused himself together with a copy of the grounds on which it is made and further provides that the Court will not pass any order on merits of such an application unless at least 24 hours have elapsed between the giving of such notice and the hearing of such application
No procedure is laid down in Section 526 for the Court to follow when an application for transfer is made by the State. No such notice to the accused may be necessary if the transfer by the State is sought on grounds other than the expected unfairness of the presiding officer of the Court. But such a notice must be essential in case such allegations against the presiding officer are made. The absence of such provision may again indicate that the Legislature did not contemplate such an application by the State.
15. Sub-section (8) requires the trial Court to order a party interested intimating to the Court before the closure of the defence case that he intended to make an application under this section to execute a bond for an amount not exceeding Rs. 200 to the effect that he would make the transfer application within a reasonable time to be fixed by the Court and to adjourn the case for sufficient period to allow the making of the application. If an intimation be given to the trial Court by the Public Prosecutor on behalf of the State that it desired to move an application for transfer under Section 526, Criminal P. C., the Court is not bound to take it for granted that the State would necessarily make a transfer application within a reasonable time. The Court may have its reasons to consider that the request is probably not bona fide.
It may, therefore, feel it necessary to order the State to execute a bond as it would have ordered a private party to execute. It is, however, clear that such a bond on behalf of the State in favour of the Government would be no effective bond and that therefore it may mean that the provisions of Sub-section (8) of the Criminal P. C. also did not take into contemplation an application by the State on such allegations during the pendency of a case. A transfer application on other grounds would ordinarily be moved prior to the commencement of a trial.
16. It would appear from the above that the!provisions of Section 526, Criminal P. C., leave it muchopen to argument how far it is within the content of those provisions that the State can applyfor the transfer of a case from a Court on theallegation that its presiding officer is not expectedto act fairly and judicially.
17. Apart from this purely legal aspect of the matter, it appears to me that the question raises a question of great public importance. The State is the employer of every presiding officer of a Court of law. Such a grievance against the presiding officer which may justify the transfer of a case is not expected to be sufficient for the State's dispensing with his services,
The result would be that the State continues to employ in a judicial capacity a public officer in whom it ceases to have confidence with respect to his fairness and impartiality and does entrust him with the decision of many a dispute between, private parties and between the State and a private party. When such allegations are made by private 'parties and are established, there is none but those parties whose confidence in the Court is shaken. Those parties have to deal usually with that public officer only in connection with any particular case. But when the confidence of the State in any judicial officer is shaken, that confidence vis-a-vis that officer is not likely to be regained. One suspected to have failed in such a matter may be suspected to fail over and over again.
The persons in charge of judicial posts should be such who be absolutely above board and inspire-great public confidence in their integrity, and nothing, I should think, be done by any one which could lead to any deterioration in such confidence. The State has not only a responsibility to itself in having its cases decided by officers of absolute integrity but has a much larger responsibility to see that it does not impose on the public an officer in whose integrity it has its doubts. This should mean, if what I have said earlier be correct, that any such allegation against the fairness of a judicial officer by the State cannot he made without a deterioration of the general confidence in the judicial officer and in the administration of justice.
18. It may be said that it is also in the Interest of the State and the citizens that the guilty should be punished and that in case the State feels from the attitude or conduct of Court that there was a chance of a guilty person escaping punishment, it is its duty to see that such a Court does not dispose of that particular case. It is true that the guilty should not escape punishment, but I am inclined to think that a wrong acquittal of a guilty person is not likely to affect adversely the administration of justice to any extent, what to say to any appreciable extent; while the making of such allegations by the State against its own responsible officers whose services it may have to put up with in spite of successfully making out such allegations is bound to affect not only the further discharge of his judicial duties by that particular officer but to affect adversely the general administration of justice. It is not secret that all guilty persons, even of henious offences, are not always brought to Court and that for justifiable reasons even guilty persons which come before the Court get an acquittal. An acquittal of one case wrongly or of a few cases wrongly cannot, therefore, affect the general administration of justice or the position of law and order.
19. In view of a prayer for the withdrawal of the application by the learned Deputy Government Advocate, I reject this application.