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Criminal Miscellaneous Case No. 39 of 1969, decided on 2nd May 1969.

S. 526 (1)(a), (4)-- Transfer of case‑Application on behalf of State‑Affidavit or affirmation not necessary to accompany such applica tion‑Special Judge refusing application of prosecution to extend time for examination of prosecution witnesses who could not appear due to apprehended violent disturbances‑State praying for transfer of case on grounds of apprehension that fair and impartial trial could not be held before such Special Judge‑Application, in circum stances, allowed, for ends of justice and case transferred to other competent Court.

A I R 1957 All. 278 and A I R 1950 All. 727 ref.

A I R 1959 Mad. 261 rel.

A. T. M. Afzal for Petitioner.

Md. Abdul Aziz for the Opposite‑Party No. 2.

Date of hearing : 1st May 1969.

.‑On an application made on behalf of the State by the Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan, this Rule was issued upon the Deputy Commissioner, Khulna and the accused‑opposite parties to show cause why Special Case No. 6 of 1968 pending before the Additional Sessions Judge‑cum‑Ex‑Officio Special Judge, Khulna Mr. Kabiruddin Ahmed should not be transferred to the Court of some other Special Judge.

This application on behalf of the State appears to be rather unusual. Although a number of allegations have been made against the Special Judge concerned, the State has pressed the Rule only on one ground, namely, that as on the 4th March 1969 there was a general strike throughout the country and in Khulna, there was a strong rumour of apprehended mob violence and people of the town had become very much panicky and hardly dared to go out of their houses and in such circumstances some of the witnesses summoned for examination on behalf of the prosecution on the 3rd and 4th March 1969 could not be present in Court. Only three witnesses were present and they were examined by the prosecution and the learned Public Prosecutor put in an application praying for time to examine the other witnesses for the reasons stated above. These facts are stated in Paragraph 15 of the petition and find support from Annexure "B" to the petition. Upon this application of the learned Public Prosecutor the Special Judge wrote as follows :‑

"The witnesses summoned to appear on 3‑3‑69 and 4‑3‑69 having failed to attend the Court this day i.e. 4‑3‑69 shall not be examined on any subsequent date or dates."

It has, therefore, been contended on behalf of the State that a fair and impartial trial cannot be held before the said learned Special Judge so far as the case in question is concerned. It has also been contended that an order of transfer of the case in question is expedient for the ends of justice.

Mr. Md. Abdul Aziz, learned Advocate appearing on behalf of the opposite‑party No. 2 has opposed the Rule.

Mr. Md. Abdul Aziz has contended in the first instance that the application on behalf of the State for transfer on the ground of an apprehension that it will not receive any fair and impartial trial at the hand of the learned Special Judge is not maintainable. In support of this contention he has relied upon a decision of the Allahabad High Court reported in A I R 1957 All. 278. This is a decision of a Single Bench wherein a doubt has been expressed as to whether under the provisions of section 526 of the Code of Criminal Procedure the State can apply for transfer of the case from a Court on the allegation that its Presiding Officer would not be expected to act fairly and judicially. This obser vation appears to be a mere obiter dictum for the application for transfer in the case under report had been withdrawn and consequently it was rejected. The learned Advocate has cited another case reported in A I R 1950 All. 727. This is a decision of a Division Bench of the Allahabad High Court. In the case under report the Court before proceeding to consider the appli cation for transfer made the following observations :‑

"A transfer application on behalf of the State stands on a somewhat different footing from that of a private complainant or an accused person. Before a transfer application is presented on behalf of the State, it is not unreasonable to assume that care is taken on the part of the Department responsible for law and order, that there is substance in the allegations on which the trans fer application is based. What may disturb the equanimity of mind of an ordinary villager is not likely to disturb the trained mind of men who have to deal with State matters. The State is represented in all trials by experienced counsel in all the districts in this province and it strikes us that they bring to bear upon their work an intelligent mind. The question, therefore which we have to ask in this case is whether a trained mind could reason ably entertain an apprehension that the party it is representing is not likely to have a fair trial before the learned Sessions Judge. With these observations of a general character, we propose to deal with the specific allegations seriatim which have been made against the learned Sessions Judge in this case."

Thereafter the Court, on a consideration of the various grounds for transfer on merit, rejected the application of the State.

It is thus evident that none of the decisions support the contention of the learned Advocate that this application is not maintainable.

In our opinion the language in section 526 of the Criminal Procedure Code gives no indication that an application for transfer on the ground that a fair and impartial trial cannot be had in a particular Court, cannot be made on behalf of the State. On the contrary, subsection (4) of section 526 of the Code of Criminal Procedure makes it perfectly clear that such an application is maintainable. Subsection (4) reads as follows :‑

"Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Advocate‑General, be supported by affidavit or affirmation."

"Advocate‑General" has been defined in section 4 (1) (a) of the Criminal Procedure Code thus :‑

"Advocate‑General' includes also a Government Advocate or where there is no Advocate‑General or Government Advocate, such officer as the Provincial Government may, from time to time, appoint in this behalf."

In the present case, the transfer application has been made by the Superintendent and Remembrancer of Legal Affairs and as such we do not think that any affidavit or affirmation was neces sary to make the application, as was contended on behalf of the opposite‑parties. It is thus evident that the present application on behalf of the State is maintainable even under section 526(4)(1)(a) of the Code of Criminal Procedure.

Be that as it may, the ground which has been pressed before us in support of the application for transfer has been fully borne out by the records of the case, and if we find that it has substance, there should be no difficulty on the part of this Court to allow the transfer acting suo motu, in accordance with the provisions of subsection (3) of section 526 of the Code of Criminal Procedure. This subsection is in these terms:

"The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative."

This view receives support from the decision of the Madras High Court reported in A I R 1959 Mad. 261.

As regards the merit of the ground urged for transfer, we should like to say that it is common knowledge that on the particular days mentioned in paragraph 15 of the petition, namely, first week of March including the 4th of March there were dis turbances of the kind mentioned in the said paragraph throughout East Pakistan, and in such circumstances it was unreasonable for the learned Special Judge to refuse the application of the Public Prosecutor for permission to examine on some other day the witnesses who could not turn up on the 3rd and 4th March 1969. The impugned order of refusal has indeed furnished a reasonable basis for the apprehension alleged by the prosecution who, broadly speaking, stands on the same footing as the accused in such a matter. We should, however, observe that before such an application is made on behalf of the State, the matter should be considered in all its aspects including the possible reaction in the mind of the public vis‑a‑vis the personnel of the Court. On behalf of the State it has been contended that at any rate, having regard to the facts and circumstances of the case, it is expedient for the ends of justice that the transfer of the case from the Court of the learned Special Judge should be made.

We have no manner of doubt whatsoever that if the case had been tried by the learned Special Judge it would have been tried strictly in accordance with law and with an unbiased mind. Regard being had, however, to certain circumstances that have happened in the case we think it expedient for the ends of justice that the case should be transferred to and tried by some other competent Court.

We, accordingly, make the Rule absolute and direct that the Special Case No. 6 of 1968 be transferred from the Court of the learned Special Judge concerned to the Court of another Special Judge who, we understand, is the Sessions Judge, Khulna.

Let the records of the case be sent down expeditiously.

‑I agree.

Rule made absolute.

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