P L D 1976 Lahore 598 (PLP)

This is an application for transfer of a criminal case against the petitioner pending in the Court of Mr. Maqsood Pervez Khawaja, Magistrate Section 30, Lahore. The ground taken is that the Magistrate accommodated the complainant Mr. Muhammad Aslam Awais in his retiring room before recording of the evidence, offered him a seat on the dais when recording his evidence and, thereafter, again accommodated him in his retiring room. The petitioner, therefore, apprehends that he will notl get justice in that Court.

2. The learned Magistrate in his comments, called for by this Court, has admitted the allegations but has explained that the complainant is a. member of the Board of Revenue and that the courtesy extended to him:, has not prejudiced him (Magistrate) in favour of the complainant or against‑ the accused. He has gone on to say: ‑‑ if doctors and firearms experts etc. can be offered chairs at the time of recording their evidence, in my view, no illegality was committed when the witness Aslam Awais was also offered a chair . . . . . . . law does not prohibit Courts from offering chairs to the complainants provided the Courts are not prejudiced for or against the accused."

3. I must say that it was neither necessary nor proper for the learned Magistrate to try to justify his conduct. The purpose of inviting comments was primarily to ascertain the truth of the allegations made. Since, however, he has felt justified in what he has done, it has become necessary to explain the law in this regard. One of the grounds which necessitates ,the transfer of a case from a Court, as laid down in clause (a), subsection ll)) ‑of section 526, Cr. P. C., is that a fair and impartial inquiry or trial cannot be had in that Court. It is one of the important duties of the; High Court to ensure that this provision of law is observed in letter and spirit. It is, therefore, necessary that where there is a reasonable apprehension, an the mind of the accused that a fair and impartial trial or inquiry cannot ;be had before the Court, where the case is pending, the same should be ‑transferred to some other Court. What is reasonable apprehension must be decided in each case with reference to the incidents of the case and ,the surrounding circumstances and in order to decide whether there is such apprehension or not, the Court must place itself in the position of the applicant seeking the transfer and look at the matter from his point of view. If the actions of a judicial officer, even though susceptible of explanation and not traceable to any bias in him, tend to create in the .mind of the accused an apprehension, neither foolish nor unfounded, that he may not have an impartial trial, it is expedient in the interests of justice that a transfer should be ordered. I am fortified in this view by a host .of authorities and it may suffice to refer in this connection to Mussadi Lai v. Emperor (1), Ahmad Din v. Emperor (A I R 1925 Lah. 101), Pulin Behari Day v. Ashutosh Gose (A I R 1924 Cal. 981) and Hemanta Kumar v. Nanda Kumar (A I R 1937 Cal. 64) The Magistrate's own satisfaction as to the absence of bias in him for or against either party, therefore, is not enough. In fact it is not necessary for the ,purposes of section 526, Cr. P. C, to establish that there is an actual bias in the mind of the Magistrate. What the High Court has to consider is whether the incidents complained against are such as calculated to create in the mind of the applicant a justifiable apprehension that he may not have a fair and impartial trial. It is of paramount importance in all proceedings that parties arraigned before Courts should have confidence in the impartiality of the Courts and it is a duty of this Court to create and maintain such confidence. After all, justice, as the maxim goes, is not only to be done but should manifestly and undoubtedly be seen to be done. I may cite with advantage the observations of Lush, J., in Sargeant v. Dale ((1877) 2 Q D B 558) "The law . . . has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of litigant parties. One important object, at all events, is to clear away every thing which might engender suspicion and district of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security." 1n nearly an identical case reported as M. De Carmo Lobo v. G. C. Bhattacharjee (A I R 1937 Rang. 272) where the complainant had been seen going in to the chamber of the Magistrate and remaining therefore some time, which allegation had not been denied by the Magistrate, the case had been transferred with the observation that the Magistrate "should have known that his acting in receiving the complainant in his chamber would undoubtedly raise an apprension in the mind of the accused that he would not have a fair and impartial trial." In AI‑Haj Mahmood Mirza v. Haseebun Nisa Begum (1968 P Cr. L J 1296) where only a relation of the complainant had been seen visiting the trial Magistrate in his chamber on a date fixed for hearing of the case and the trial Magistrate had sent for the R & P, the case had been transferred from the file of the Magistrate.

4. I am, therefore, satisfied that the conduct of the Magistrate in showing undue accommodation to the complainant in the case was bound to raise reasonable apprehension in the mind of the accused that a fair trial would not be possible. On this view of the matter, I withdraw the case from the file of Mr. Maqsood parvez Khawaja, Magistrate section 30, and transfer the same to that of the District Magistrate, Lahore. who may try it himself or pass it on to any other competent Magistrate for disposal. Case transferred.