A reasonable apprehension in the mind of the accused that the trial Judge is biased is enough to order transfer of the case, although the trial Judge may not be actually biased and the circumstances may be capable of explanation.

1. Zora Singh petitioner along with Harvinder and Balli Singh sons of Jasbir Singh and Mohna Singh son of Mukhtiar Singh, and Jasbir Singh, is facing trial for the offences under Sections 302/307/34, Indian Penal Code and Section 25/27 of the Arms Act, for causing murder of Avtar Kaur wife of Sher Singh, in the Court of Shri L. N. Mittal, Additional Sessions Judge, Sirsa. He has moved the present petition under Section 407 of the Code of Criminal Procedure (hereinafter referred to as the Code) for the transfer of the said sessions case from the said Court to some other Court of competent jurisdiction.

2. The aforesaid case is based of F.I.R. No. 178 dated 27-8-1991, registered at Police Station Bara Gudha. On 3-3-1992, case F.I.R. No. 35/1992 was registered at the said Police Station for the offences under Sections 302/120-B and 392/397 of the Indian Penal Code against Mithu Singh, Mukand Singh, Mahal Singh and Roop Singh for committing the murder of Jasbir Singh (accused in the aforesaid case), Dilawar Singh and Mukhtiar Singh. As per allegations made in the FIR, the motive for the crime was that Avtar Kaur wife of Sher Singh was murdered on 26-7-1991 and in that case Jasbir Singh and his two sons and Zora Singh (Petitioner) had been named as the assailants. The subsequently registered case based on FIR No. 35/92, State V/s. Mukant Singh has been disposed of by Shri L. N. Mittal, Additional Sessions Judge, Sirsa, by his judgement dated 21-1-1995/23-1-1995. By the said judgement, Mithu Singh has been convicted and sentenced for the offences under Section 302/34, Indian Penal Code and the remaining three accused Mukand Singh, Sher Singh and Tota Singh have been acquitted. Sessions case State V/s. Zora Singh based on FIR No. 178/1991 could not be tried and disposed of by the said Additional Sessions Judge on account of stay of proceedings by an order passed by another Bench of this Court in certain proceedings, which now stands disposed of.

3. In the present petition, it has been alleged that while deciding Sessions case No. 27/94, State V/s. Mukand Singh, the Additional Sessions Judge has given a categorical finding that the motive for committing the murder of Jasbir Singh, Dilawar Singh and Mukhtiar Singh directly related to the murder of Avtar Kaur wife of Sher Singh which is the subject matter of the present pending case. It has also been stated that the copy of the FIR No. 178/91 and the copy of the charge-sheet filed under Section 173 of the Code were produced and relied upon by the defence. It is thus alleged that the judgement dated 21-1-1995, passed by the Additional Sessions in the aforesaid case gives rise to a bona fide apprehension in the mind of the petitioner and his co-accused that they would not get justice and fair trial from the said Court and, therefore, the case be transferred to some other Court of competent jurisdiction.

4. The application has been opposed by the respondent-State as well as the complainant Sher Singh. It has been stated in reply that the present petition is not maintainable in view of the proviso to Section 407(2) of the Code inasmuch as the petitioner did not move the application before the Sessions Judge for the transfer of the case under Section 408 of the Code before approaching this Court. It has also been stated that the petition does not reveal any sort of prejudicial behaviour on the part of the Additional Sessions Judge, Sirsa, who is trying the case and no ground for transfer of the case has been made out.

5. I have heard the learned counsel for the parties.

6. As regards the question as to whether any ground for transfer of the case has been made out, the factual position, as contained in paras 1, 2, 4 to 8 of the petition have not been denied. Even the averments made in para 3 of the petition has not been denied but for the fact that it has been pleaded that Mithu Singh and others were falsely implicated in the case. A copy of the judgement passed by the Additional Sess