Case Note & Summary
The applicant, Wasanti Amol @ Avikumar Dhule, filed a criminal application under Section 407 of the Code of Criminal Procedure, 1973, seeking transfer of Summons Case No.240 of 2004 pending before the Court of Judicial Magistrate, First Class, Mahad, District Raigad, to any other Judicial Magistrate, First Class in the region. The applicant alleged that she entertained a reasonable apprehension that she would not get justice from the concerned Trial Judge. The basis for this apprehension was that although both the applicant and the respondent had agreed to a compromise and the applicant had filed a formal application in that behalf, the Trial Judge rejected the application and proceeded with the trial. Furthermore, the applicant was present on all dates except 8th October 2004 and 11th October 2004, but the Trial Judge straightway issued non-bailable warrants against her, returnable on 5th November 2004. When the applicant appeared in person along with her Advocate on 4th November 2004 to seek recall/cancellation of the warrants, the Trial Judge instead directed that she be taken into custody. Thereafter, the applicant moved three applications, including one for bail, which were all rejected, resulting in her remaining in custody. The High Court, after hearing the parties, found that the applicant's apprehension was reasonable and allowed the application, directing the transfer of the case to any other Judicial Magistrate, First Class in the region for further trial and disposal as per law.
Headnote
A) Criminal Procedure - Transfer of Case - Reasonable Apprehension of Bias - Code of Criminal Procedure, 1973, Section 407 - Applicant sought transfer of Summons Case No.240 of 2004 from the Court of Judicial Magistrate, First Class, Mahad, District Raigad to any other JMFC in the region on the ground that the Trial Judge rejected her compromise application despite both parties agreeing, and issued non-bailable warrants and took her into custody when she appeared. The High Court held that the applicant entertained a reasonable apprehension that she would not get justice at the hands of the concerned Trial Judge, and accordingly allowed the transfer application. (Paras 2-5)
Issue of Consideration
Whether the applicant's apprehension that she will not get a fair trial from the concerned Judicial Magistrate is reasonable, warranting transfer of the case to another court.
Final Decision
The High Court allowed the application and directed the transfer of Summons Case No.240 of 2004 from the Court of Judicial Magistrate, First Class, Mahad, District Raigad to any other Judicial Magistrate, First Class in the region for further trial and disposal as per law.
Law Points
- Transfer of criminal case
- reasonable apprehension of bias
- fair trial
Case Details
2005 LawText (BOM) (04) 89
Criminal Application No.5520 of 2004
Mr. Tejesh Dande for Applicant, Mrs. Anjali N. Helekar for Respondent No.1, Mr. K.V. Saste, A.P.P. for Respondent No.2
Wasanti Amol @ Avikumar Dhule
Janakalyan Co-operative Path Sanstha Ltd. & Anr.
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Nature of Litigation
Criminal application for transfer of a pending summons case from one Judicial Magistrate to another on grounds of reasonable apprehension of bias.
Remedy Sought
Transfer of Summons Case No.240 of 2004 from the Court of Judicial Magistrate, First Class, Mahad, District Raigad to any other Judicial Magistrate, First Class in the region.
Filing Reason
Applicant alleged that the Trial Judge rejected her compromise application despite both parties agreeing, issued non-bailable warrants despite her presence on most dates, and took her into custody when she appeared to seek recall of warrants.
Previous Decisions
The Trial Judge rejected the compromise application, issued non-bailable warrants, and rejected three subsequent applications including bail, resulting in the applicant remaining in custody.
Issues
Whether the applicant's apprehension of bias against the Trial Judge is reasonable, warranting transfer of the case.
Submissions/Arguments
Applicant argued that the Trial Judge rejected her compromise application despite both parties agreeing, issued non-bailable warrants despite her presence on most dates, and took her into custody when she appeared to seek recall of warrants, indicating bias.
Respondents opposed the transfer application.
Ratio Decidendi
A reasonable apprehension of bias on the part of the Trial Judge, based on the rejection of a compromise application agreed by both parties and the issuance of non-bailable warrants despite the applicant's presence, justifies the transfer of a criminal case under Section 407 of the Code of Criminal Procedure, 1973 to ensure a fair trial.
Judgment Excerpts
This Application is filed for transfer of case pending before the Court of Judicial Magistrate, First Class, Mahad, District Raigad being Summons Case No.240 of 2004, to any other Judicial Magistrate, First Class in the region for further trial and disposal as per law.
This Application has been moved on the allegation that the Applicant entertains reasonable apprehension that she will not get justice at the hands of concerned Trial Judge before whom aforesaid criminal case is pending for trial against the Applicant.
Procedural History
The applicant filed Criminal Application No.5520 of 2004 before the Bombay High Court seeking transfer of Summons Case No.240 of 2004 pending before the Judicial Magistrate, First Class, Mahad. The High Court heard the parties and allowed the application on 25th April 2005.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 407
