The apprehension of not getting a fair and impartial trial must be reasonable and not imaginary.

ORDER :

This petition is filed by the petitioners/accused under Section 407 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') praying to transfer the Sessions Case No.164/2019 pending on the file of III Additional District and Sessions Judge, Kalaburagi, for trying/concluding/disposal of the case to some other Sessions Court coming under the jurisdiction of the Principal District and Sessions Judge, Kalaburagi.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioners are accused No.1 to 3 and the respondent is complainant-State.

3. This petition is filed by accused persons being aggrieved by rejection of transfer petition under Section 409 of Cr.P.C. by the learned Principal District and Sessions Judge, Kalaburagi (for short 'Trial Court') in Crl.Misc.No.459/2023 dated 27.03.2023.

4. It is contended that based on the complaint lodged by the complainant, a case has been registered against the accused persons for the offence punishable under Section 302 read with Section 34 of IPC. Later, the Investigating Officer has investigated the matter and filed charge-sheet against the accused persons for the offences punishable under Sections 302 and 120B read with Section 34 of IPC and the matter was committed to III Additional District and Sessions Judge, Kalaburagi for trial.

5. The prosecution to prove its case, examined in all 18 witnesses as PWs.1 to 18, marked the documents as per Exs.P1 to P29 and 11 material objects as MOs.1 to 11 before the trial Court and the evidence of prosecution witnesses has been completed on 25.02.2020 and the statement of accused has been recorded under Section 313 of Cr.P.C. by the trial Court and accused also examined on oath as DW.1 on 26.03.2022. Later on, the matter was set down for final arguments and on 08.09.2022 and 20.09.2022, the prosecution recalled PW.18 and he was examined on 02.11.2022 and again the Trial Court recorded the statement of accused under Section 313 of Cr.P.C.

6. The learned counsel for the accused contended that, at the time of recording further evidence of PW.18, the trial Court rejected the relevant admissible questions put to PW.18 in his cross-examination. However, the Trial Court has not allowed the counsel for accused and the Court has not recorded the relevant questions and admissions given by PW.18 in his cross-examination. Therefore, the learned counsel for accused filed an application under Section 311 of Cr.P.C. for recalling of PW.18 and the same was allowed with cost of Rs.1,000/-on 21.12.2022 and later, PW.18 was examined.

7. It is contended that, though there was exchange of words between counsel and the Presiding Officer of the trial Court (for short 'the Presiding Officer'), but, the trial Court has not recorded in the order sheet as to what was happened between the counsel and the Presiding Officer, hence, the learned counsel for accused aggrieved with the attitude and behavior of the Presiding Officer has indirectly expressing in favour of the prosecution for which the accused persons are not having any faith on the Presiding Officer, therefore, the accused have filed a petition for transfer of the case. Further, the case was adjourned on the request of the learned Public Prosecutor on time to time, but, the Court blamed the counsel for accused that, he is dragging the matter. In fact, the accused persons are in judicial custody since 2019 and the Court ought not to have allowed the application for recalling of PW.18 by the prosecution. It is contended that, the counsel for accused asked some relevant questions to PW.18, regarding arrest of accused persons on 19.01.2019 in Crime No.13/2019 of University police station, Kalaburagi and PW.18 has clearly admitted those questions, but, the trial Court was not ready to record the same and the Court were insisted the counsel to repeat once again, the same questions, thereafter, the witness was alerted and answered in the affirmative.

8. It is co