1. ' Petitioners Allah Obhayo and Morr, who are facing trial on a murder charge, have prayed for transfer of the case from the file of First Additional Sessions Judge, Nawabshah on the ground that the attitude of the learned Magistrate during the course of proceedings has been of such a manner that they have reasonable apprehensions that they will not get a fair and impartial trial at his hands.
2. ' The facts shortly stated are that although the case was received by learned First Additional Sessions Judge, on transfer, on 8th November 1973, yet no progress was made up to 26th November, 1974 for one reason or the other. It may be mentioned at this stage that during -this period certain adjournments were sought by Mr: Ghulam Nabi Memon, learned counsel for the petitioners. On 26th November 1974, learned Additional Sessions Judge appointed a pauper counsel for the petitioners as their counsel Mr. Ghulam Nabi Memon had not attended and bad made yet another prayer for adjournment.
3. ' The crucial date of hearing in the case was fixed for 3rd February 1975. According to the petitioners, their counsel Mr. Ghulam Nabi Memon fell ill at Hyderabad on the earlier day, and he sent a telegram on 2nd February 1975 requesting for adjournment on the ground that he was unable to undertake journey from Hyderabad to Nawabshah.
4. ' Learned trial Judge not only refused this request, but also an oral request for adjournment made by the petitioners themselves on the ground that they desired to be represented by Mr. Ghulam Nabi Memon and not by the pauper counsel appointed on their behalf, and in any case time may be granted to them so that they may obtain case papers Irom Mr. Ghulam Nabi Memon and engage another counsel of their choice. Learned Judge proceeded with the case and examined certain prosecution witnesses. He had, however, to adjourn the case because the pauper counsel showed inability to cross-examine the prosecution witnesses as he was not prepared with the case.
5. ' The case was adjourned to the following day, namely the 4th February 1975. On this day, a Clerk of Mr. Ghulam Nabi Memon, Advocate who -had come from Hyderabad, presented an application for adjournment under section 526 (8), Cr. P. C. And requested the learned Judge for permission to obtain signatures of the petitioners on the application as they were in jail-custody. The trial Judge rejected this application on the grounds which may be stated in his own words : "This application is given by the Clerk of Mr. Ghulam Nabi, Advocate who is no longer Advocate of the accused. This application is not signed by any one. Hence this is rejected."
6. ' The record of the case shows that the application is, no doubt, unsigned, but it is purported to be made on behalf of the accused persons, and there is, therefore, force in the assertion made by the petitioners that the Clerk of their counsel, Mr. Ghulam Nabi Memon, had requested the learned trial Judge to permit him to obtain their signatures and he refused to grant him the permission.
7. ' After the refusal of this request for adjournment, Kamal father of petitioner Morr made another application for adjournment under section 526 (8), Cr. P. C. This application was also rejected by the trial Judge in these words : "This application is given by one Kamal father of accused Morr when six witnesses were already examined and cross-examined by defence counsel. There is no reasonable ground to adjourn this, case on this application. I therefore reject this application. This application is not supported by any affidavit, let the statement of accused be recorded in this connection."
8. ' In his statement, petitioner Morr prayed for adjournment of the case on the ground that he desired to move the High Court for transfer of the case. It was in view of this statement that the learned First Additional Sessions Judge, Nawabshah, adjourned the case to 5th March 1975. The petitioners then approached this Court through this application for transfer of the case from the file of the trial Judge.
9. ' The assertion that Mr. Ghulam Nabi Memon, learned counsel for the petitioners, had sent a telegram on 2nd February 1975 requesting for the adjournment of the case is borne out by the record, which further shows that petitioners had all along made their desire clear that they wished to be represented by the counsel of their choice, Mr. Ghulam Nabi Memon, and not by the Pauper Counsel. On 3rd February 1975 the Pauper Counsel appointed for the petitioners was not even ready with the case, and it was for this reason that learned trial Judge reserved the cross- examination of the prosecution witnesses examined by him on that day. It is also admitted that the clerk of Mr. Ghulam Nabi Memon had made an application on behalf of the petitioners for adjournment of the case on the ground that the petitioners wished to move the High Court for the transfer of the case. Not only this application was rejected by the trial Judge, but he also refused another request to the same effect made through application filed on behalf of the petitioners by Kamal, father of petitioner Morr. It was, later on, after petitioner Morr made the statement in Court that he wanted to move the High Court for transfer of the case that the learned trial Judge adjourned further proceedings of the case. These facts and circumstances, and particularly the attitude adopted by the learned trial Judge were highlighted by learned counsel for the petitioner in support of the transfer application.
10. ' It is well established that apart from susceptibilities of the accused, if certain events have occurred during trial which may reasonably lead to the calculation in the mind of the accused, amounting to real apprehensions that he will not be fairly treated at the trial, transfer of the case becomes necessary in order to maintain the principle of fundamental importance that justice, should not only be done, but should manifestly and undoubtedly, be seem to be done. One important object that the trial Judge must bear in mind is to clear the atmosphere of all suspicions that might endanger the above principle, and also to act in the manner so as to promote the feeling of confidence in the administration of justice. It is also for the High Court to safeguard as a matter of duty, that such a confidence in the administration of justice is maintained. This can be done only by giving every citizen the assurance that, so far as practicable, he will never be forced to undergo a trial by a Judge who, he has reasonable ground to suspect, is prejudiced against him.
11. It is, however, to be shown that the apprehensions in the mind of the applicant are such as a reasonable person would entertain. It is not necessary in this behalf to establis that the trial Judge is actually prejudiced, but it must be proved that the circumstances have arisen which have afforded a reasonable apprehension in the mind of the applicant that he will not receive a fair trial from the Judge. i ' If the facts of the present case are seen in the light of these principles, the petit oners cannot be blamed for harbouring the impression in their mind that on account of the attitude adopted by the learned Firs Additional Sessions Judge, Nawabshah, they do not expect a fair and impartial trial at his hands. In "U Po Mya v. The King" (1) it was held that where the Magistrate has displayed far too much haste in the trial of the case and has wrongly failed to give the accused opportunity to engage such legal assistance as he thought proper, the conduct of the Magistrate, although not inspired by any unfair motive, would be such as to fill the mind of the accused, not unreasonably, with an apprehension that he will not secure a fair and impartial trial before him.
12. ' For these reasons, the request of the petitioners for transfer of the case is legitimate and I, therefore, transfer the file of the case to the Sessions Judge, Nawabshah, with the direction that he shall try the case himself according to law.
(1) AIR 1938 Rang. 198