S.407 CrPC | Reasonable Apprehension Of Injustice Necessary To Transfer Criminal Cases : Karnataka High Court

Justice Venkatesh Naik T ruled that there must be a reasonable apprehension of injustice for a transfer to be successful.

"any party can seek the transfer of case within the State under Section 407 of Cr.P.C. The apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary based upon conjunctures and surmises. The cases cannot be transferred on mere allegations that, there is apprehension that justice will not be done. For transfer of criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done." 

The petitioners who were the accused in a criminal trial were charged with offences under Section 302 r/w Section 34 of the IPC. During the trial, there were several instances of disagreement and tension between the defence counsel and the Presiding Officer.

The petitioners contended that the Presiding Officer had displayed bias in favour of the prosecution, and they had lost faith in the fairness of the trial. They cited instances where their requests for adjournments or recalling witnesses were treated differently than similar requests made by the prosecution. 

Thus, the petitioners approached the Court with a petition under Section 407 of the CrPC seeking to transfer their trial from the III Additional District and Sessions Judge in Kalaburagi to some other Sessions Court within the jurisdiction of the Principal District and Sessions Judge, Kalaburagi.

Notably, their previous transfer petition under Section 409 of CrPC was rejected.

The Government Pleader argued that the allegations made by the accused were baseless and that they were attempting to delay the trial.

The Court noted that the petitioners had been in judicial custody since 2019, and the trial had been ongoing for some time. Despite the accused repeatedly recalling witnesses and seeking adjournments, the defence counsel had not submitted their final arguments in the case.

The court on going through the trial court records concluded that the accused had not demonstrated a reasonable apprehension of bias or unfairness in the trial process. It noted that ample opportunities had been given to the defence counsel throughout the trial. It also observed that the accused had not submitted their final arguments despite multiple chances to do so.

“In the instant case, the trial Court accorded opportunities to the accused, but, the counsel for accused made allegations that, the Presiding Officer not accorded opportunities, but, the entire order sheet clearly depicts that, the trial Court has accorded opportunities in all fairness. Taking into consideration the entire facts and circumstances of the case and the materials on record, I am of the view that the petitioners have not made out a case that they have reasonable apprehension of not availing justice from the Presiding Officer.”

The court emphasised the importance of a fair trial and the need for justice to be not only done but also seen to be done. It held that mere allegations of apprehension that justice might not be served were insufficient grounds for transferring the case. It also noted that the trial had already been delayed considerably.

“It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice.”

Further, the bench opined,

“On perusal of Section 407 of Cr.P.C., it appears that assurance of fair trial is the first imperative of the dispensation of justice and the purpose of the criminal trial is to dispense fair and impartial justice, uninfluenced by extraneous considerations.”

It also said, 

"the apprehension of not getting a fair and impartial trial is to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution of India. If the criminal trial is not free and fair and if it is biassed, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one.”

The bench then remarked that the counsel for the accused is also an Officer of the Court and he is duty-bound to assist the Court of law. The counsel ought to have submitted his final arguments between 04.03.2022 and 28.03.2023.

“The matter was pending for final arguments for more than a year, but, the counsel for the accused himself was not ready to submit his arguments, on the contrary, he recalled the witnesses on five occasions and now instead of submitting his arguments, is making false allegations against the Presiding Officer.”

As a result, the court rejected the transfer petition and directed the trial court to provide one more opportunity for the defence counsel to submit their oral or written arguments. The trial court was instructed to proceed with the judgment once the arguments were presented.

Appearance: Advocate Nandkishore Boob for Petitioners.

HCGP Anita M Reddy for Respondent.

Citation: 2023 LiveLaw (Kar) 365

Case Title: Santosh & Others And State Through Ashok Nagar PS

Case No: CRIMINAL PETITION NO. 200338 OF 2023