2000 Supreme(SC) 1418

2000(6) Supreme 53
SUPREME COURT OF INDIA
(Under S. 406 Code of Criminal Procedure)
M.B. Shah & S.N. Phukan, JJ.
R. Balakrishna Pillai -Petitioner
versus
State of Kerala -Respondent
Transfer Petition (Crl.) No. 115 of 2000
Decided on 30-8-2000
Counsel for the Parties :
For the Petitioner : U.R. Lalit, Sr. Advocate, E.M.S. Anam and Fazlin Anam, Advocates.
For the Respondents : Harish N. Salve, Solicitor General, G. Prakash, Ms. Beena Prakash, Gopala Krishna Kurup, and Jyotish, Advocates.

Headnote:(i) Code of Criminal Procedure, 1973-Section 406-Transfer of cases-Appeal against conviction under Section 5 of Prevention of Corruption Act pending before Kerala High Court-Accused was Minister and MLA or M.P.-Appeal sought to be transferred to High Court of Karnataka-Grounds that one of the Judges in Bench before appeal listed earlier worked as Advocate in another case against accused in an inquiry commission and press and political parties created such a situation that he would not get fair justice- Grounds untenable-Granting transfer would result in casting unjustified aspersion on Court having jurisdiction to decide appeal-No adverse inference could be drawn that a Judge who worked as Advocate in another case against convict appellant would have bias or prejudice against convict appellant and would not render justice in accordance with law-Transfer petition dismissed.

       It is true that one of the principles of the administration of justice is that justice should not only be done but it should be seen to have been done. However, a mere allegation that there is apprehension that justice will not be done in a given case is not sufficient. Before transferring the case, the Court has to find out whether the apprehension appears to be reasonable. To judge the reasonableness of the apprehension, the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must appear to the Court to be a reasonable, genuine and justifiable. (Para 10)

       In the instant case petition is filed for transfer of case from the High Court of Kerala to the High Court of Karnataka on the ground of alleged adverse publicity in the Press in the State of Kerala. This contention is apparently raised at a belated stage i.e. after lapse of four years from the date of filing of the appeal in the High Court. Petitioner has not raised any objection with regard to hearing of the appeal by the Kerala High Court when the matter was heard by the learned Single Judge in 1998, who subsequently referred it to a larger Bench. Even in the representation before the Chief Justice, he has not raised the said contention. Therefore, elaborate submissions made in the transfer petition that a fair trial will not be possible in the State of Kerala as political parties in power have created such a situation that justice, fairness and rule of law cannot be expected in cases against the petitioner and that any person can be influenced consciously or sub-consciously by the adverse publicity against the petitioner, are required to be rejected. Apart from not raising objection for a period of four years, we would further state that in this country there is complete separation of Judiciary from the Executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from High Court of Kerala to High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumption that its judicial verdict is consciously or sub-consciously affected by the popular frenzy, official wrath or adverse publicity, which is not the position qua the judicial administration in this country. Further, the contention raised by the learned counsel for the petitioner that one of the Judge of the Bench was appointed and has worked as an Advocate to assist Justice K. Sukumaran Commission to inquire into mal practices in the execution of the rectification work in Hydro Electric Project called Edamalayar Project and, therefore, the petitioner is not likely to get justice if the appeal is decided by the said Bench, deserves to be rejected. In the present day scenario, if these types of applications are entertained, the entire judicial atmosphere would be polluted with such frivolous petitions for various reasons. The Transfer Petition, in our view, it requires to be rejected firstly because the petitioner is not convicted on the basis of the said inquiry report. The charges against him are all together for a different case not connected with the rectification work of Edamalayar Project. Secondly, a Judge while practicing as an advocate might have appeared in a number of cases, but that would not mean that he would have any personal interest or connection with the said matters or with persons involved therein and would be biased towards them. Therefore, it would be difficult to presume or to draw an inference that the learned Judge, because of assisting the Commission of Inquiry as an Advocate in different matter, would have bias or prejudice against the petitioner and would not render justice in accordance with law. Acceptance of such contention would seriously undermine the independence and stern stuff of the Judges. (Paras 9, 10 & 11)

       (ii) Practice and Procedure- Criminal appeal-Counsel filing application withdrawing his appearance on date of hearing-Ploy to getting matter adjourned-Practice deprecated-Court would be justified in issuing bailable warrant to convict appellant in such cases. (Para 12)