P L D 1962 Dacca 192 (PLP)

MURSHED, J.‑This is an application under section 526 of the Code of Criminal Procedure and it arises out of ‑the following circumstances: One Habi at Habibur Rahman, who was a student of class X of the Kuliarchar H. L. School was the son of a brother of the petitioner. The petitioner himself used to reside at Patuakhali in the District of Bakarganj where he used to carry on business. The said Habibur Rahman is alleged to have been brought up by the petitioner after the death of his father and it is also alleged that the petitioner used to defray his educational expenses. The petitioner asserts that he had intended to offer his daughter in marriage to his nephew, the said Habibur Rahman. The petitioner later on wanted that the boy should study at Barisal and arranged for a transfer from the Kuliarchar High School. On receipt of the transfer certificate taken on the 2nd of August B60, the said Habibur Rahman carne to Kuliarchar Railway Station with his belongings after taking leave from his school teachers. He wanted to avail himself of the next train at 5 o'clock. It is alleged that certain persons, who are accused in the case pending before the learned Additional Sessions Judge met him at the Railway Station and persuaded him not to go by the next train but to take the train which would leave Kuliarchar at 10 p.m. It is alleged that at about 8 o'clock the said Habibur Rahman was taken from the platform on the pretext of going out for a walk and after he had proceeded some distance, he was mur dered by a number of persons, who are undergoing their trial pending in the Court of the said learned Additional Sessions Judge. A police officer lodged a first information report in this case and after completion of the investigation, the accused persons were committed to the Court of Sessions where the trial is proceeding, as stated above. The petitioner has further alleged that a number of Court officers of the District Courts under the District and Sessions Judge of Mymensingh are relations of one of the accused. It appears that this fact has raised some misgivings In his mind as to the course of the trial of the case pending against the said accused. At the commencement of the trial, when prosecution witness No. I was being examined, it is alleged that prior to the cross examination of the said witness, the learned Additional Sessions Judge started asking the witness a number of searching questions and, in doing so, he exhibited his annoyance with the witness. It is further alleged that the learned Additional Sessions Judge expressed doubt with regard to the veracity of the evidence of the witness before the close of his evidence In Court. It is at this juncture that the petitioner, who happens to be an uncle and guardian of the deceased, got apprehensive as to the fate of the trial in the said Court. He has stated that he could not obtain the assistance of a lawyer to move a petition for adjourn ment of the case in order to enable him to move this Court under the provisions of section 526 of the Code of Criminal Procedure. The learned Additional Sessions Judge rejected the prayer for adjournment, which was made under the provisions of section 526, subsection (8), of the said Code. Thereafter the petitioner moved this Court under the aforesaid section and obtained the present rule. At the hearing of the rule, Mr. Ahmadur Rahman Khan, who appeared before us on behalf of the accused in the aforesaid case, opposed the application on two grounds. His first con tention is that the petitioner has no locus standi to make this application before us and, secondly, his contention is that this application should not be allowed on its merits. With regard to the first point stated above, Mr. Ahmadur Rahman Khan has contended that the petitioner is not a "party interested" within the meaning of subsections (3) and (8) of section 526 of the Code. The said subsection (3) reads as follows: ‑ "(3) 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." Subsection (8) runs thus :‑ "(8) If, In an inquiry under Chapter VIII or Chapter XVIII or in trial, any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section, the Court shall, upon his executing if so required, a bond without sureties of an amount not exceeding two hundred rupees, that he will make such application within a reasonable time to be fixed by the Court, adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon . , Mr. Ahmadur Rahman Khan has contended that the expres sion "any party interested" must mean either the Public Pro secutor, the complainant or an accused and that a person, who does not come within the aforesaid description, cannot be a " party interested " within the meaning of the aforesaid subsections. This contention does not appeal to us. In construing a statute, we have to give the plain meaning of the words used. According to the plain meaning of the words "party interested", we cannot impose any such limitation on the expression as we have been invited to do by Mr. Ahmadur Rahman Khan. Prior to the amendment of subsection (8) into Its present form, the said subsection contained the words, "the Public Prosecutor, the complainant or the accused", instead of the words, "any party interested." Mr. Ahmadur Rahman's arguments are based on the phraseology of subsection (8) previous to its amendment, as stated above. It is also interesting to note that the learned Advocate opposing the application could not cite any decision to support his argument, except a Patna case in which two Judges composing the Division Bench differed from each other. He referred us to the case of Jamuna Kanta Jha v. Rudra Kumar Jha (20 Cr. L J 648). In this case the application for transfer was made at the instance of a person, who lodged a first information report, which led to the subsequent criminal proceedings. On the con tention that the petitioner had no locus standi to move the petition, reliance was placed on the wording of the section as it then stood. Subsection (8) of section 526, as it then stood, provided that an application for adjournment, with a view to move a transfer application, could be made at the Instance of a com plainant, Public Prosecutor or an accused person. The question before the Court was whether the applicant came within the category of a complainant. Mullick, J. was of the opinion that there was a distinction between the word "informant" and the word "complainant," according to the scheme of the Code of Criminal Procedure. He, therefore, held that the applicant was merely an `informant' and not a `complainant' in the sense that the applicant had not, in fact, lodged a complaint in the Court, which led to the initiation of the criminal proceedings. Jwala Prasad, J. dissented from the view and held that the word `complainant' had been used in a wider sense and it would include a person, who lodged an information, which led to the criminal proceedings. We may state here that the view taken by Mullick, J. in the case cited above did not receive support in subsequent cases of the same Court. On the other hand, the dissenting judgment pronounced by Jwala Prasad, J. has been followed in various other Courts as well as in later decisions of the Patna High Court. It will also be seen that in this case the Court was confined to the interpretation of the word `complainant' as it then stood in sub section (8) of section 526 of the Code. That section had undergone legislative amendment, which we will show hereafter. Subsection (8) of section 526 of the Code of Criminal Proce dure, prior to its amendment in 1932, was couched in the following terms: "If, in any criminal case or appeal, before the Commencement of the hearing, the Public Prosecutor, the complainant or the accused notifies to the Court before which the ease or appeal is pending, his intention to make an application under this section in respect of the case, the Court shall exercise the powers of postponement or adjournment given by section 344 in such a manner as will afford a reasonable time for the application being made and an order being obtained thereon, before the accused is called on for his defence, or, in the case of an appeal, before the hearing of the appeal." By the Amendment Act XXI of 1932., the said subsection was amended and re‑enacted as quoted above. Thus, we find that, instead of the words "the Public Prosecu tor, the complainant or the accused," the amended subsection has used the words "any party interested." In the case of Sir Rajendranarayan v. Bhagaban Mahapatra (A I R 1947 Pat. 166), Sinha, J. did not follow the opinion of Mullick, J. as expressed in the aforesaid case. In this case a criminal case was started on an allegation of misappropriation of a certain sum of money. At the instance of X his agent Y lodged a first information report which eventually led to the prosecution in which Y was ultimately made an accused. Thereafter X moved an application under section 526 of the Code. Sinha, J. repelled the argument at the Bar as to the competency of the application for transfer on the ground that the petitioner had no locus standi to move the application. At page 167 of the report Sinha, J. made the following observations: "Ordinarily the complainant or the Public Prosecutor or the accused are parties interested in the result of a criminal case. But, as already indicated, in this case the first informant has now come to occupy the position of one of the accused. He was an agent of the petitioner when he lodged the first information before the police. There can be no doubt that the information was lodged before the police at the instance of the petitioner, though not by him personally, but by one of his employees. In the special circumstances of the case, in my opinion, the petitioner does fulfil the requirements of the law inasmuch as he is a "party interested." In that view of the matter, I would overrule the preliminary objection as to the maintainability of the "application for transfer." In a number of decisions of various High Courts of this sub‑continent persons injured by certain criminal acts have been held to be "party interested" in the trial of the accused, within the E meaning of section 526 of the Code, and so also a complainant, even in a cognizable case, has been held to be entitled to apply for transfer under the said section. In the case of Bagh Ali v. Muhammad Din (I L R 6 Lah. 541), it was held that an informant, even in a cognizable case, was entitled to move an application under section 526 of the Code. In the case of Emperor v. Dhana (39 Cr. L J 853), Abdul Rashid, J. also took the same view as stated above. He has further observed that in a case where the Public Prosecutor opposes the application, the views of the Public Prosecutor ought to prevail against that of a private complainant. In the case of Abdul Naseer v. Emperor (39 Cr. L J 33), a Bench of the Allahabad High Court took the same view. In the case of Sardar Shah v. Gurdit Singh (36 Cr. L J 222), Agha Haidar, J. has held that the language of section 526 (3) of the Code is sufficiently wide and comprehensive and a person who has lodged the complaint and moved the machinery of the police and the Criminal Courts continues to be a party interested and he is entitled to move the High Court in certain circumstances for the transfer of the case. In the case of Brahmdutt v. State (51 Cr. I. J 1291), which is a decision of the Allahabad High Court, Raghubar Dayal, J. has made the following observations at page 1292 of the report:, "I do not see any reason why Brahmdutta has a grievance against the transfer of the case of Lalta Prasad and Banarsi Das. Those accused wanted the transfer of their case. The transfer was not objected to on behalf of the State. A third person has no right to object to the transfer of a case. He may, in certain circumstances, be considered to be an interested party. Even then his objection to the transfer of the case will not get precedence over the desires of the two main parties to the case, namely the accused and the State." Thus, in the aforesaid case it was held that even a third person, in certain circumstances, may be considered to be a "party interested" within the meaning of section 526 of the Code. In the case of Ghulam Rasul v. Emperor (A I R 1941 Lah. 299), a Bench of the Lahore High Court has held that a complainant, who received some injury, which led to the prosecution under section 326 of the Penal Code, was a competent person to maintain an applica tion for transfer under section 526 of the Code. In the aforesaid case during certain election the complainant received an incised wound on his shoulder and the accused persons were prosecuted by the Crown under section 326 of the Penal Code and other sections thereof. The complainant sought transfer of the case after two witnesses were examined. The Magistrate trying the case owned land in the village of which the complainant was a Lambardar and they had taken opposite sides in the election. The application was opposed by the Crown, Skemp, J. has made the following observations at pages 300‑301 of the report "It is the complainant who seeks transfer and, as I have frequently said, a complainant's application should be scanned more narrowly than that of an accused pea son. An accused person apprehends conviction and a complainant that his enemy will go free. However, in this case, it is reasonable that the complainant should desire the punishment of the person who inflicted the wound and in the interest of public justice it is desirable that that person should be punished. The complainant sought transfer after only two witnesses had been examined. It is at the very least clear that the Honorary Magistrate owns land in the village of which the complainant is a Lambardar and they took opposite sides in the recent election. In such circumstances it is not desirable in my opinion that the case should be tried by the Honorary Magistrate. The Crown opposes the application and counsel for the Crown and for the accused set forth the proposition that where there is a conflict between a private complainant and the Crown as to transfer, the right of the latter must prevail. The following cases were quoted: 4 Pat. L J 656 Jamuna Kanth v. Rudra Kumar, 6 Lah. 541 Bhag All v. Muhammad Din, A I R 1934 Lah. 612 Sardar Shah v. Gurdit Singh and A I R 1938 Lab. 569; Emperor v. Dhana. The three cases in this Court were all Single Bench cases, the Patna case was a Division Bench. The petitioner in the Patna case was one of the persons injured in a riot case who had complained to the police. Mullick, J. held that he had no locus 3tandi under section 526, Criminal P. C. Jwala Prasad, J. held that he had locus standi, but his right was suborbinate to that of the Crown. The Crown had strongly opposed the appli cation both upon the point of law and on the merits and Jwala Prasad, J. also held that there was no case for transfer on the merits. "The point was slightly different in 6 Lab. 541 Bhag Ali v. Muhammad Din. There the District Magistrate on the appli cation of the accused had transferred the case to another Magistrate without notice to the complainant. The complain ant came to the High Court and counsel for the accused raised the preliminary objection that a private complain ant was not competent to apply for a transfer. The appli cation was not opposed by the Crown. The applicant's counsel did not ask for a transfer but urged that the order of the District Magistrate was illegal being made without notice. Zafar Ali, J. dismissed the petition for revision and suggested that if the complainant had doubts about the impartiality of the new Magistrate he should make an application to the District Magistrate. On the facts this case is not an authority for the proposition. In A I R 1934 Lah. 612 Sardar Shah v. Gurdit Singh, Agha Haidar, J. quoted A I R 1926 All. 307 Emperor v. Bhik Chand as follows: "In a charge of this nature which is instituted on a police report and in which the prosecution is in the hands of the Public Prosecutor exceptionally strong grounds would have to be shown before this Court would exercise its power of trans fer at the instance of a private complainant when the responsible authorities are satisfied that there is no ground for withdrawing the case from the Court which is hearing it." "Agha Haidar, J. accepted this view of the law and I res pectfully agree. He held that there was no case for transfer on the merits. In A T R 1938 Lah. 589 (sic) Emperor v. Dhana, Abdul Rashid, J. purporting to follow 6 Lah. 541 Bhag Ali v. Muhammad Din said that the rights of the complainant in a cognizable case were subordinate to those of the Crown. He held that there was no case for transfer on the merits. In all four cases the proposition was no doubt laid down, but in 6 Lah. 541 Bhag Ali v. Muhammad Din, the point was really different and in the other three cases it was held that on the merits there were no good grounds for transfer. In the present application, on the contrary I think there are good grounds for transfer. " In our opinion, a person injured or aggrieved by the crime, a witness in the trial, an informant or a complainant on whose information the machinery of law is set in motion, would, under certain circumstances, come within the description of "any party interested" within the meaning of section 526, subsections (3) and (8), of the Code. The category stated above is by no means exhaustive. Of course, a Public Prosecutor, a complainant or an accused will always come under the aforesaid description. In the case before us the injured person is dead. If the father of the deceased bad been alive and had made an applica tion for transfer of the case, we would have held that he was certainly a 'party interested' within the meaning of subsections (3) and (8) of section 526 of the Code. The father of the deceased was already dead before the alleged occurrence. The petitioner is the brother of the father and an uncle as well as guardian oft the deceased. The petitioner claims that he has been responsible for the upbringing of the deceased and, in fact, he was maintain ing the deceased and looking after his education. He stands in loco parentis to the deceased and seems to have taken a keen interest in the prosecution of the accused. He is also an Important witness in this case. It would be doing violence to the plain meaning of the words in the aforesaid subsections to hold that be was not a party interested in the prosecution. Technically speaking, the State as the prosecutor in every criminal case and the accused persons, are directly interested in and con cerned with the case. But a witness or the complainant in a case will also be an interested party, though not directly so. A person in the position of the petitioner is, in our view, a party interested within the meaning of section 526 of the Cede. It is difficult to define the category of persons who will come within the meaning of the expression "party interested in the case". It has to be decided on the facts and circumstances of each case and the position of the complainant with regard to the case itself. As we have already stated, we find no difficulty in holding that the present applicant is competent to maintain the application for transfer. In any event, since we have issued a Rule in this case, we can suo motu pass an appropriate order under section 526 of the Code. This proposition is not contested by learned Advocate for the opposite parties in view of the fact that the said section specifically empowers us to do so. Mr. Ahmadur Rahman Khan has further argued that in a case where the application for transfer under section 526 of the Code is opposed by the Public Prosecutor, the views of the latter must prevail. In this case, however, the Public Prosecutor has not appeared before us to oppose this application. So far as we are concerned, there is no opposition either on behalf of the State or by the Public Prosecutor. We bad asked the learned Deputy Legal Remembrancer, upon whom notice was served by the applicant before the application was moved in this Court, as to whether be bad received any instruction with regard to the present applica tion. He stated that he had no instruction either to oppose or to support it. It is thus clear that it would not be correct to say that the application before us is opposed by the Public Prosecutor. It, however, transpires from the order recorded by the learned Additional Sessions Judge that, at the time when the petitioner filed an application for adjournment, the Public Prosecutor opposed the said application. The petitioner bas categorically stated in his petition that there was no such opposition by the Public Prosecutor and, in fact, Mr. Ataur Rahman Khan, who appeared before us on behalf of the petitioner, asserted that if he was given further time, he would be able to procure an affidavit from the Public Prosecutor to the effect that he (Public Prosecutor) not only did not oppose the application but rather supported the same. We do not consider it necessary to adjourn this case any longer in order to get the said affidavit from the Public Prosecu tor. We have noted above that, so far as we are concerned, there has been no opposition before us by the Public Prosecutor and, therefore, no useful purpose would be served by adjournment of this case merely for the purpose of obtaining an affidavit from the Public Prosecutor. There are quite a number of decisions in which it has been held that when an application for transfer under section 526 of the Code is opposed by the Public Prosecutor, the views of the latter ought to prevail. The views of the Public Prosecutor are entitled to a good deal of respect and normally such views ought to prevail ; but it cannot be laid down as a hard and fast rule that whenever there is a clash between the contention of a private complainant and the opinion of the Public Prosecutor, the view taken by the latter must prevail in every case. It would, however, require special and exceptional circumstances to induce Courts to transfer criminal cases at the instance of a private complainant when such transfer is opposed by the Public Prosecutor. In the case of Ghulam Rasul v. Emperor (A I R 1941 Lah.299), Skemp, J. allowed the application for transfer in spite of opposition by the Public Prosecutor. In the present case we would have allowed the application even if the Public Prosecutor had opposed the same. We now turn to the merits of the case. The petitioner has stated, in paragraph 12 of the petition, as follows: "That one of the accused Lalu alias Habibur Rahman is the son of the elder brother of Moulvi Abdul Taber, the Sheristadar of the District Judge's Court, having a large number of his own relations as employees in the Judge's Court including the Nazir of the District Judge's Court and this Nazir is own brother of Moulvl Abdul Taber, Sheristadar." In paragraphs 15, 16, 17, 18 and 19 he has made the following statements: "

15. That before the cross‑examination of P. W. 1 began the learned Additional Sessions Judge started asking questions to the witnesses and began to rebuke the witness as liar and also expressed that the prosecution case was false and that he would never believe the evidence of that witness. "

16. That the evidence of P. W. 1 was not completed when the Court rose for the day and when the case was taken up on the next day the petitioner having become apprehensive that a fair and impartial trial could not be had in the said Court, filed a petition under section 526 of the Code of Criminal Procedure before the Hon'ble High Court for the transfer of the case. "

17. That the learned Additional Sessions Judge rejected the petition on the ground that the petitioner was not complainant of the case and therefore was not a person interested in the case and as such the petition was not entertainable. "

18. That while rejecting the application, the learned Additional Sessions Judge made certain other observations in respect of the witnesses aforesaid and also stated that the Public Prosecutor opposed the petition which is not a fact and on the contrary the said petition under section 526 of the Criminal Procedure Code was filed in consultation with the Public Prosecutor. "

19. That the petitioner tried to secure the assistance of lawyers to file power on his behalf but failing to secure such assistance of any lawyer therefore he filed the petition personally". While issuing the present Rule we had called for the comments of the Additional Sessions Judge on the application before us. The learned Additional Sessions Judge has, by way of explanation, referred to order No. 2 which he had passed on the 14th of February 1961. The said order runs thus "The accused are produced. One Kanchan Mia files a petition. It is a petition for stay of the trial to enable the peti tioner to move the Hon'ble Court under section 526, Cr. P. C. Under subsection (8) of section 526, Cr. P. C. only "the party interested" can file a petition like this. "The party interested" means only the complainant, the accused and the Public Prosecu tor. In this case the petition has been filed by one Kanchan All who is neither an informant (i.e. complainant) nor an accused nor even a witness. The Public Prosecutor also opposes this petition. The petition is thus not entertainable. Moreover, no power has been filed in support. "While rejecting the petition it should be stated that a Judge has got to test the veracity of a witness. The Judge may point out to the witness the material discrepancies, contradictions, his demeanour and other circumstances going against him in order to elicit the truth and to give the witness an opportunity to explain his seemingly contradictory evidence, which, say, does not fit in with the F. I. R., or other circums tances and his demeanour. In the present case P. W. 1 Abdul Jalil stated before this Court that he saw accused Tota and accused Lain running away with dagger near the place of occurrence and that their clothes were blood stained and that he and his companion tried to catch the said two accused but failed as they threatened them with dagger and that they chased accused Shahjahan, but some other persons arrested Shahjahan. He further tells that O/C Kuliarchar P. S. arrived and found accused Shahjahan arrested and that then they proceeded with the O. C. and discovered a dead body. He emphatically states that he told all these to the O. C. immediately after the O. C's. arrival. It is in F. I. R. that O. C. arrived there at 8‑10 p. m. and O. C. lodged the F. I. R. himself after about 8 hours i.e. at 4 a.m. F. I. R. does not contain any of these facts stated by P. W. 1, Jalil against accused Tota and accused Lalu. F. I. R. does not even contain the name of P. W. I Abdul Jalil as a witness. Although the F. I. R. was not his statement and as such he could neither be corroborated nor contradicted on that, yet I thought, in all fairness, to elicit the matter as best as it may by giving him a chance to explain the real position and accordingly put a few questions to him. He remained obstinately silent. He refused to answer the questions put by the defence lawyer and continued to remain silent to every question put by the learned defence lawyer. I had to remind him about his obligations to answer all relevant questions put by the defence and in doing so I might have been slightly harsh. Moresoever in my view this petition may not be without a back ground of its own. The petitioner Kanchan Mia, it appears, was involved in the present murder by the confessional state ment of accused Shahjahan. He was not, however, charge- sheeted. Thus for obvious reasons the present applicant is now showing extra zeal in favour of the prosecution. There fore, this move by the petitioner Kanchan Mia appears to be mala fide." In the aforesaid order there is no denial to the specific asser tion by the petitioner that P. W. 1 was subjected to a number of questions by the learned Additional Sessions Judge before the cross‑examination of the witness had commenced. At the time of the hearing of the application Mr. Ataur Rahman Khan had with him a certified copy of the evidence of P. W. 1 and he read out a substantial portion of the same to us. It seems that the learned Additional Sessions Judge subjected P. W. 1 to a cross -examination rather prematurely. The questions put to the witness were inquisitorial. The learned Additional Sessions Judge is certainly empowered to put questions to witnesses and, in proper cases, he ought to put some questions in order to clarify an obviously confused statement ; but such power of questioning wit nesses should be exercised with a good deal of caution and restraint. It is not the Court's function to place itself in the position of a cross‑examining lawyer. In cases where it is fairly obvious that there is some confusion in the mind of the witness, he may clear the same by a few proper questions. If misleading questions in a sleek and tricky cross examination have confused a witness, he may and should ascertain whether the witness has understood such questions. He may and ought to put questions in order to obtain information on material points if they are not otherwise available. It is impossible to lay down any precise `norm' with regard to the limits within which such questions should be put. It can be best ascertained by judicial experience. It is always better to exercise moderation in putting questions to a witness lest such questions may amount to undue interference with the handling of the case by the lawyers for the parties. There is, however, on clear principle which has been invariably followed, that is, the i Court should normally refrain from putting itself in the position of a prosecutor or a defence lawyer, specially when the parties are represented before it. The learned Additional Sessions Judge has also stated in the said order that be had to be somewhat harsh to the witness because he (witness) had been recalcitrant in answering questions put to him by the cross‑examining lawyer it also appears from the said order that the learned Additional Sessions Judge found the demeanour of the witness to be unsatisfactory. In a Court of first instance, the demeanour of a witness, as it appears to the Court, is of utmost importance. It is something, which a Judge is called upon to observe and note when the witness is in the box. The demeanour of a witness is an unconscious exposition of the mind of the witness by his untutored conduct in the witness box and is often a very valuable guide as to the credit of the said witness. If a witness is cautioned with regard to his demeanour, its value is completely wiped out. The importance of the demeanour of a witness lies in the fact that the witness is unaware of it. A Court should normally refrain from warning the witness of his unsatisfactory demeanour because the effect of such warn ing would be to put the witness on his guard and his subsequent demeanour will not be his natural demeanour. If the witness has been recalcitrant and had been refusing to answer questions put to him by Court or in cross‑examination, he should have been warned that he could be punished for con tempt of Court because of such refusal. If lie had persisted in doing so, suitable steps could have been taken against him to deal with him effectively. It is clear that the learned Additional Sessions Judge had practically made up his mind with regard to the credit of P. W. 1 before the close of the prosecution case. This is a premature assessment of the evidence, which can be properly appraised only after the rest of the prosecution witnesses have been examined. The learned Additional Sessions Judge has not denied the allegation that he openly characterised the witnesses as a liar before his cross -examination has commenced; in fait, there has been no denial of the statements in para. 15 of the petition as set out above. From the facts and circumstances of this case, we feel that it is expedient, in the interest of the administration of justice, that this case should be tried by a Judge other than the learned Additional Sessions Judge who is trying the accused at the present moment. We have taken this view not because we feel that both the prosecution as well as the defence will not get justice from the hands of the learned Additional Sessions Judge but because the circumstances stated above might raise an apprehension that the Court has prejudged the case at the commencement of the trial. It is, therefore, desirable that the trial should not continue in the said Court. It has been repeatedly said that it is not enough that justice should be done but that it should be manifestly seen to be so done. It is imperative that cases should be conducted and decided fairly and equitably ; but, it is also important that such fairness should be apparent to all those who are interested in the case. This is the raison d' etre of dispensing justice in open Court and in full view of the public. Before parting with this case, we would like to observe that we have no doubt whatsoever that the learned Additional Sessions Judge, as stated by him, was unaware of the fact that an accused in the trial before him was a relation of some officers of the Court. We have also no manner of doubt that, even if he had been aware of such relationship, he would 'have been uninfluenced by it in the trial of the case before him. But, the unfortunate fact is that the present trial commenced in a surcharged atmosphere in which the learned Additional Sessions Judge hastily and pre maturely expressed himself rather strongly against the first witness examined by the prosecution. For reasons stated above, we make this Rule absolute and direct that Cal. Case No. 202 of 1960 (S. T. No. '' of II Sessions for 1961) now pending before Mr. M. H. Rahman, Additional Sessions Judge, 2nd Court, Mymensingh, be transferred for disposal by any other competent Judge to be nominated by the Sessions Judge of Mymensingh. SALAHUDDIN AHMED, J.‑I agree. S. B. Case transferred.