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PETITIONER: R.  BALAKRISHNA PILLAI

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       30/08/2000

BENCH: M.B.Shah, S.N.Phakun

JUDGMENT:

     Shah, J.

     This  Transfer  Petition  was  placed  before  us  for hearing  on  21st  August,  2000   and  on  that  day  while dismissing  the  same we stated that reasons  would  follow. Now, we narrate the reasons for the same.

     Petitioner,  who according to the facts stated in  the list  of  dates,  was  Minister   for  Electricity  in   the Government of Kerala and MLA or MP for over 30 years and has been  convicted under Section 5(1)(d) read with Section 5(2) of  the  Prevention  of Corruption Act, has  filed  Criminal Appeal  before  the High Court of Kerala.  This Petition  is filed by him for transferring the pending appeal to the High Court  of  Karnataka.  Question, therefore,  which  requires consideration  in this petition iswhether the  apprehension of  the  petitioner  that he would not get  justice  in  the criminal  appeal  if decided by the High Court of Kerala  is genuine and justifiable?

     The  petitioner and a former Chairman of Kerala  State Electricity   Board  were  prosecuted   for   the   offences punishable  under Section 5(1)(d) read with Section 5(2)  of the  Prevention  of  Corruption  Act, 1947  and  also  under Section  120-B  IPC,  on  the charge  that  by  abusing  his position  the  petitioner  sold  12241440  units  of  Kerala electricity  to the State of Karnataka to be supplied to M/s Graphite  India  Ltd., Bangalore, a private industry in  the State  of Karnataka and thereby enabled the said company  to make  pecuniary advantage of Rs.19,58,630.40 and more by way of resultant profit.  By judgment and order dated 20.5.1996, the    Inquiry   Commission    and    the   Special   Judge, Thiruvananthapuram  found  the accused guilty under  Section 5(1)(d)  read  with  Section  5(2)   of  the  Prevention  of Corruption  Act,  1947 and sentenced the accused to  undergo simple  imprisonment for one year and also to pay a fine  of Rs.10,000/-   each   and  in   default  to  undergo   simple imprisonment  for  a further period of two months.   Against that judgment and order Criminal Appeal No.304 of 1996 filed by  the  petitioner is pending for hearing before  the  High Court  of  Kerala.  The State had also filed an  appeal  for enhancing  the  sentence.   The appeals were  heard  by  the

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learned  Single  Judge  in October/November,  1998  and  the judgment  was  reserved.  Thereafter, by judgment and  order dated 6.7.2000, the learned Single Judge referred the matter to  a  Division  Bench by stating that the  matter  involved question  of  law  and facts of public  importance.   It  is stated  that  on the same date, the Chief Justice of  Kerala High Court directed to post the appeals for hearing before a Bench  of Mr.  P.K.  Balasubramanian and Mr.  Hassan Pillai, JJ.

     Thereafter,  on  24th July, 2000, petitioner filed  an application  before  the Chief Justice of Kerala High  Court that  appeals  be  placed before a different  Bench  on  the ground   that  Mr.   Justice   P.K.    Balasubramanian   had effectively worked against him as an advocate before Justice K.   Sukumaran Commission of Inquiry, which was appointed by the  State  Government  in   December,  1985.   The  Inquiry Commission  was  appointed to inquire into some of  the  mal practices  in  the execution of the rectification work in  a Hydro Electric Project called EDAMALAYAR PROJECT, consequent on the discovery of lead in its Power Tunnel.  It was stated in  the  application that petitioner bona  fide  apprehended that  the  learned Judge would be prejudiced against him  in spite of passage of time and his elevation as a Judge of the High  Court.  Therefore, it is just and fair that he may not hear  the appeals filed by him and filed against him on  the ground  that  justice should not only be done but it  should also appear to be done.

     In  this  transfer  petition, petitioner  changed  his version  and  submitted that criminal appeal pending  before the High Court of Kerala be transferred to the High Court of Karnataka  at  Bangalore  on  the ground  that  a  fair  and reasonable  trial  is not possible in the State because  the Government  and  that the Press in the State have  by  their vicious  campaign  created a situation and impression  among the public that the petitioner has committed irregularities, illegalities  and crimes in the sale of electricity.  It  is also  stated  that  Mr.  P.K.   Balasubramanian,  J.   while practicing  as  an Advocate had acted as  prosecutor  before Justice  K.   Sukumaran  Commission in an inquiry  known  as EDAMALAYAR case.

     At  the  time  of hearing of this  matter,  Mr.   U.R. Lalit,  learned  senior  counsel   appearing  on  behalf  of petitioner  submitted  that  the petitioner  has  reasonable apprehension  that  if  the  case  is  heard  by  Mr.   P.K. Balasubramanian, J., he would not get fair justice because:-

     (a)  The learned Judge before elevation appeared as an Advocate  for  the  Commission;  (b) Chief  Justice  of  the Kerala   High  Court  has  not   passed  any  order  on  the representation made by the petitioner;  and (c) On 14.8.2000 adjournment  of  hearing of the appeal was not  granted  and when  counsel for the petitioner refused to argue the appeal by  stating  that  he was not appearing for  the  appellant- petitioner,  Court has issued a bailable warrant  returnable on 21st August, 2000.

     The  learned  counsel further submitted that  all  the aforesaid    grounds   be     considered   conjointly    for decidingwhether   petitioner   was   justified  in   having reasonable  apprehension that he would not get fair  justice if the matter is heard by the same Bench?

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     As  against  this,  Mr.   Harish  N.   Salve,  learned Solicitor  General appearing on behalf of the respondent (on caveat)  submitted  that  this kind of  application  is  not required to be entertained or encouraged otherwise litigants would  have  a chance of selecting the Bench and malign  the judicial  administration.   He  also submitted that  in  the appeal  which  is pending before the Kerala High Court,  the petitioner  is not convicted in connection with the offences arising  out  of the report of the Commission given in  1985 and  as such it cannot be stated that Judge, who appeared as Commissions  Advocate  in  1985 would not do justice  to  a litigant  in  a  case where he is  convicted  for  different offence in different case.

     At  the  outset,  we may state that this  petition  is filed  for transfer of case from the High Court of Kerala to the High Court of Karnataka on the ground of alleged adverse publicity  in  the  Press  in the  State  of  Kerala.   This contention  is  apparently  raised at a belated  stage  i.e. after  lapse  of four years from the date of filing  of  the appeal  in  the High Court.  Petitioner has not  raised  any objection with regard to hearing of the appeal by the Kerala High  Court when the matter was heard by the learned  Single Judge  in  1998,  who subsequently referred it to  a  larger Bench.  Even in the representation before the Chief Justice, he has not raised the said contention.  Therefore, elaborate submissions  made in the transfer petition that a fair trial will  not  be possible in the State of Kerala  as  political parties in power have created such a situation that justice, fairness and rule of law cannot be expected in cases against the  petitioner  and  that  any  person  can  be  influenced consciously  or  sub-consciously  by the  adverse  publicity against  the petitioner, are required to be rejected.  Apart from  not  raising objection for a period of four years,  we would  further state that in this country there is  complete separation  of  Judiciary from the Executive and Judges  are not  influenced  in any manner either by the  propaganda  or adverse  publicity.   Cases are decided on the basis of  the evidence  available  on  record   and  the  law  applicable. Granting  such application and transferring the appeal  from High Court of Kerala to High Court of Karnataka would result in  casting  unjustified  aspersion  on  the  Court   having jurisdiction to decide the appeal on the assumption that its judicial  verdict is consciously or sub-consciously affected by  the popular frenzy, official wrath or adverse publicity, which is not the position qua the judicial administration in this  country.   We would also mention that at the  time  of hearing the learned counsel has not raised this contention.

     Further,  the contention raised by the learned counsel for  the  petitioner that one of the Judge of the Bench  was appointed and has worked as an Advocate to assist Justice K. Sukumaran  Commission  to inquire into mal practices in  the execution  of  the  rectification  work  in  Hydro  Electric Project  called  Edamalayar  Project   and,  therefore,  the petitioner  is  not likely to get justice if the  appeal  is decided  by the said Bench, deserves to be rejected.  It  is true  that  one of the principles of the  administration  of justice  is  that  justice should not only be  done  but  it should  be  seen  to  have   been  done.   However,  a  mere allegation  that there is apprehension that justice will not be  done  in  a  given   case  is  not  sufficient.   Before transferring the case, the Court has to find out whether the apprehension  appears  to  be   reasonable.   To  judge  the reasonableness of the apprehension, the state of the mind of

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the  person  who  entertains the apprehension  is  no  doubt relevant  but that is not all.  The apprehension must appear to  the  Court to be a reasonable, genuine and  justifiable. In  the present day scenario, if these types of applications are  entertained,  the entire judicial atmosphere  would  be polluted  with such frivolous petitions for various reasons. Dealing  with  the transfer petition, this Court  in  Maneka Sanjay  Gandhi  v.   Rani  Jethmalani  [(1979)  2  SCR  378] observed:   -  Assurance  of  a fair  trial  is  the  first imperative  of  the dispensation of justice and the  central criterion  for  the  court  to consider when  a  motion  for transfer  is  made is not the hypersensitivity  or  relative convenience  of  a  party  or  easy  availability  of  legal services   or   like    mini-grievances.    Something   more substantial,  more  compelling, more imperilling,  from  the point   of  view  of  public   justice  and  its   attendant environment,  is necessitous if the Court is to exercise its power  of transfer.  This is the cardinal principle although the  circumstances may be myriad and vary from case to case. We have to test the petitioners grounds on this touch-stone bearing  in mind the rule that normally the complainant  has the  right  to choose any court having jurisdiction and  the accused  cannot dictate where the case against him should be tried.   Even  so, the process of justice should not  harass the  parties  and  from that angle the court may  weigh  the circumstances.

     Applying  the  aforesaid  principles in  deciding  the Transfer  Petition, in our view, it requires to be  rejected firstly because the petitioner is not convicted on the basis of the said inquiry report.  The charges against him are all together  for  a  different  case  not  connected  with  the rectification work of Edamalayar Project.  Secondly, a Judge while  practicing  as an advocate might have appeared  in  a number  of cases, but that would not mean that he would have any personal interest or connection with the said matters or with  persons  involved therein and would be biased  towards them.   Therefore,  it would be difficult to presume  or  to draw  an  inference  that  the  learned  Judge,  because  of assisting  the  Commission  of  Inquiry as  an  Advocate  in different  matter, would have bias or prejudice against  the petitioner  and would not render justice in accordance  with law.    Acceptance  of  such   contention  would   seriously undermine the independence and stern stuff of the Judges.

     The  second  contention that the Chief Justice of  the Kerala   High  Court  had  not   passed  any  order  on  the representation  made  by the petitioner also deserves to  be rejected  because  in a criminal appeal pending  for  trial, there  is  no  question of passing any order  by  the  Chief Justice of the High Court.

     Lastly, it is submitted that on 14th August, 2000 when the  adjournment of hearing of appeal was sought, the  Court had  not  granted the same and as the advocate appearing  on behalf  of the petitioner submitted that he was  withdrawing his  appearance  and refused to argue the matter, the  Court issued  bailable warrant to the petitioner to remain present on  the date of hearing.  In the order, which was passed  on the said date (which is produced for our perusal at the time of  hearing by the learned counsel for the petitioner),  the Court has specifically mentioned that as the learned counsel for  the  petitioner  has withdrawn his  appearance,  matter cannot  proceed  and  for  giving   an  opportunity  to  the petitioner  to  engage a counsel of his choice,  matter  was

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adjourned.   In  our  view,  this   practice  of  filing  an application  by an Advocate that he withdraws his appearance on  the  date  of  hearing,  only  for  getting  the  matter adjourned,  requires to be strongly discouraged.  In such  a situation, for seeking the appearance of the petitioner, who was released on bail, there was no alternative for the Court but  to  issue  bailable  warrant.   Therefore,  the  course adopted  by  the  Court was justified.  Hence, there  is  no remotest   chance   or    justification   for   entertaining apprehension  that  petitioner would not get justice if  the appeal  is  decided  by the Bench to whom  it  is  assigned. Learned  counsel  for the petitioner submitted that all  the aforesaid  grounds  are  to  be  considered  conjointly  for arriving  at  a conclusion that whether the  petitioner  was having  reasonable  apprehension that he would not get  fair justice  if  the  matter was heard by the  said  Bench.   As discussed above, even considering the grounds conjointly, it would   be   difficult  to  accept   that  there   was   any justification  for such apprehension.  Power of transfer  of trial  or  appeal  cannot  be  exercised  on  hypersensitive grounds or mini-grievances.

     Hence, this transfer petition is dismissed.