Merely alleging bias or requesting adjournments without substantial evidence is insufficient for transferring criminal cases under Section 407.

ORDER

1.This petition is filed under section 407 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) with a prayer to withdraw S.C. No.551 of 2010 on the file of the Additional Sessions Court-IV, Thiruvananthapuram to any other Sessions Court within the Thiruvananthapuram Sessions Division. The petitioner had preferred a petition seeking similar relief before the Court of Sessions Thiruvananthapuram, but the same was dismissed by the court below by order dated 10.2.2017.

2.The case of the petitioner is that he is the sole accused in the aforesaid Sessions case involving offence under section 302 of the IPC . The prosecution is that he had murdered his own wife in an incident which took place on 26.12.2009. Final report was laid before the court in the year 2010 itself.

3.After complying with all the formalities, the case was scheduled for trial to commence from 2.11.2016. As the petitioner was unwell, he filed an application seeking exemption supported by a medical certificate. The learned Session Judge insisted that the Doctor who had issued the medical certificate should be personally present before the court below. The case was then posted to 9.11.2016. On that day also, the petitioner filed an application along with another medical certificate. The case was posted to the next day and summons was issued to the Doctor. A person authorised by the Doctor appeared and produced the treatment certificate. The counsel who appeared for the petitioner relinquished his vakalat on the same day itself and without even granting a breathing time to the petitioner to appoint a new counsel, non-bailable warrant was issued. Petitioner approached this Court and filed a petition seeking direction, which was allowed and the petitioner was directed to surrender before the court below within 10 days and coercive steps were kept in abeyance for 10 days. The petitioner, thereafter, filed an advance petition before the court below on 5.12.2016 along with the order passed by this Court. The case was posted to 13.12.2016 and the petitioner was directed to submit a letter of apology for entertaining the application. While considering the application, the court below had observed that the petitioner would ultimately end up inside the jail. According to the petitioner, the learned Session Judge is grossly prejudiced against him and he will not get fair justice, if the case is tried by the learned Session Judge. It is also stated that the learned Public Prosecutor in charge of the case is a close friend of the husband of the sister of the deceased wife of the petitioner. According to the petitioner, though all these aspects were highlighted before the court of Session, his grievance was not considered.

4.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

5.The learned counsel would submit that it is clear from the observations of the court below that the petitioner will not get a fair and impartial trial. The petitioner entertains a reasonable apprehension in his mind that he may not be able to conduct his defence effectively as it appears that the court below has taken a prejudiced view against him. Much reliance is placed on the decision of the Apex Court inRenjith Takur V. Union of India ( 1987 SC 2386 ) to contend that the test of likelihood of bias is the reasonableness of the apprehension in the mind of the accused. Referring to the decision of the Apex Court in G.N.Nayak v. Goa University and Others ( 2002 (2) SCC 712 ) it is contended that it is sufficient for the petitioner to establish a reasonable possibility of bias to seek for an order of transfer.

6.The learned Public Prosecutor would refute the submission and would contend that the only intention of the petitioner is to protract the proceedings on trivial reasons.

7.I have considered the rival submissions. It appears that comments of the learned Additional Session Judge was called for and the same has been extr