JUDGMENT
Gorachand De, J.
1. By this application under Sections 407/482 of the Code of Criminal Procedure the present petitioner has challenged the order dated 28.5.2002 passed by Sri B. Das, the learned Chief Judicial Magistrate, Howrah under Section 410 of the Code in Crl. Misc. Petition No. 391 of 2001. By the said order the learned Magistrate disallowed the prayer of the petitioner-de facto complainant regarding transfer of two cases, viz. G.R.No. 2907 of 2001 and G.R.No. 2943 of 2001 from the 4th Court of Judicial Magistrate to some other Court. The reason or ground of such transfer was that in a subsequent case instituted by the present opposite parties against the present petitioner which was numbered as 579C of 1998, the present petitioner was convicted by the same learned Magistrate of the 4th Court on 22.10.2001. The second ground is that the present application for transfer of the case on the ground of biasness of the learned Magistrate will also bias the learned Magistrate.
2. In course of hearing of this application the learned Counsel for the petitioner contended that the learned Chief Judicial Magistrate while passing the impugned order did not consider the abovementioned grounds and accordingly illegally rejected the prayer for transfer of the case.
3. Mr. Roy, the learned Counsel appearing on behalf of the State, however, challenged the present application mainly on the ground that the application under Section 407 of the Code before this Court is not maintainable in view of the bar imposed by the proviso to Section 407(2) of the Code inasmuch as no application was filed before the learned Sessions Judge for transfer of the case. It is also contended that since there is a specific provision in the Code itself, the provision of Section 482 of the Code is not applicable in the present case. Mr. Roy also contended that only on the ground of biasness a case should not be transferred from one Court to another.
4. In reply Mr. Nandi, however, contended that the present application is to be treated one under Section 401 of the Code inasmuch as no prayer has been made for transfer of the case indicating that the marking of the application as one under Section 407 is wrong marking. It is also contended that labelling or marking or inserting a wrong section will not preclude the Court from treating a particular petition in appropriate manner if it is not otherwise barred. So it is argued that the labelling of the application under Sections 407/482 of the Code is wrong marking and there is no bar in treating the said application as under Section 401 of the Code. Thanks to Mr. Roy that he has not disputed this legal position of law. Accordingly, the present application is construed as an application under Section 401 of the Code.
5. As regards the grounds of transfer Mr. Nandi placed reliance on a Division Bench judgment of the Allahabad High Court in Nem Chand v. State, and contended that if a case already decided by a Magistrate against a particular person that person can have a reasonable apprehension of not getting justice from the same Magistrate. Another single Bench decision of the Allahabad High Court in Ram Ratan and Anr. v. State, 1976 Cr. L.J.1799, was also relied upon in support of the same contention. It is contended that an accused must get a trial in which he may not have even the remotest feeling of not getting a fair trial. In the said case the accused was convicted earlier by the same Judge on evidence of the same set of witnesses. Though the Judge will not be influenced by the evidence adduced by those or other witnesses in the subsequent case, but a reasonable apprehension may remain in the mind of the accused that the same fate will recur. So the Court took the view that in a case of this nature it should be proper to transfer the case from the same Magistrate.
6. In the present case it appears that the parties before this Court have been fighting for the last 13/14 years in respect of a tenanted premises. In 1991 two of such cases, one by the landlord and another by the tenant were filed on the self-same incident and those two cases were numbered as G.R. 2907 of 2001 (at the instance of the landlord) and as G.R. 2943 of 2001 (at the instance of the tenant). By an order of this Court both the cases were directed to be tried by a single Magistrate and thereafter both the cases were transferred to the 4th Court of Judicial Magistrate and both the cases are at the stage of evidence. Meanwhile in a subsequent case filed by the opposite party the present petitioner was convicted by the learned Magistrate of the 4th Court and accordingly his apprehension is that he will not get proper justice if his case is being tried by the same Magistrate. Simple apprehension of not getting fair trial is not a ground of transfer of a case from one Court to another. Similarly the allegation of biasness, if not specifically indicated, cannot be construed to be a good ground of transfer of a case from one Court to another. But in the present case the present petitioner has explained the ground of transfer of the case from 4th Court of Judicial Magistrate to some other Court. Out of these grounds the previous conviction by the same Magistrate is one, and the other ground is that there is reason to believe that the Magistrate will be annoyed or biased on the ground taken by the present petitioner in the present application as well as in the application made before the learned Chief Judicial Magistrate praying for transfer of this case. So there exists reasonable apprehension in the mind of the accused person that he may not get fair trial, and as such I do not think that the prayer for transfer of the case from 4th Court of Judicial Magistrate to some other Court is unjustified. It is a settled principle of law that in a criminal proceeding the Court is required to give an accused a trial in which he may not have even the remotest cause to think or feel that he may not get a fair trial. It is not enough to do justice, but it must seem to have been done. So in the fitness of things I feel that the learned Chief Judicial Magistrate should have considered the application for transfer of the case to some other Court. Since the power exercised by the learned Chief Judicial Magistrate under Section 410 of the Code was not properly exercised, interference of this Court under Section 401 of the Code is necessary.
7. In setting aside the impugned order of the learned Chief Judicial Magistrate and in allowing the present application, the learned Chief Judicial Magistrate is directed to transfer both the cases being G.R. 2907 of 2001 and G.R. 2943 of 2001 to some other Magistrate of the same station for a trial in accordance with law as expeditiously as possible. This revisional application is accordingly disposed of.
8. Let a copy of this order be sent to the Court below forthwith by a Special Messenger at the cost of the present petitioner to be deposited by 3rd October, 2002.