ORDER
V.S. Dave, J.
1. This transfer petition has been filed by the petitioner praying that case pending before the Court below may kindly be transferred to any Court of competent jurisdiction in any of the Districts of Rajasthan. The case referred to in the prayer of which transfer has been prayed is a Criminal Appeal No. 13/89, Maninder Kumar v. State of Rajasthan pending before the Addl. Sessions Judge, Dholpur for an offence under Section 325/34, I.P.C.
2. The petitioner in his petition stated that his appeal was listed for arguments along with the connected appeal filed by Ravindar Kumar on 24-6-89. An application for exemption was moved by co-accused Bhagwat Swaroop, Ravindar Kumar and the petitioner Manindar Kumar. The application of Bhagwat Swaroop was allowed, bailable warrants were issued against Ravindar Kumar but warrant of arrest was issued against the petitioner and his bail bonds were ordered to be forfeited by the learned Appellate Judge, namely, Shri Brij Lal Bundel, Sessions Judge, Dholpur, respondent No. 2. It is submitted that Shri Bundel passed the order mala fide as he had grudge against the petitioner as the petitioner who happened to be General Secretary of the Rajasthan High Court Bar Association and was instrumental in getting a resolution passed against Shri Bundel by the members of Rajasthan High Court Bar Association condemning his action regarding an incident which took place in Barmer when he was posted there. The petitioner submitted that on August 30, 1989 when co-accused Ravindar Kumar had appeared in the Court of Shri Bundel latter stated in the open Court that he will send Manindar Kumar behind the Bars on that day because he has now a chance to send him behind the Bars. On asking by Ravindra Kumar as to what is the reason respondent No. 2 stated that Manindar Kumar had made several statements against him regarding Barmer incident and had got resolutions passed from Rajasthan High Court Bar Association. The petitioner's grievance, therefore, is that the Presiding Officer is biased against him and he has no hope for getting justice from that Court.
3. This application was sent for comments of non-petitioner No. 2 under the orders of Hon'ble Mrs. Kapur J. dated 12-9-89 which have been received from the learned Addl. Sessions Judge vide his letter dated 16-11-89. The complainant also put in appearance through Shri S. K. Gupta Advocate.
4. Argument were heard and the explanation submitted by Additional Sessions Judge, Dholpur, Shri Brij Lal Bundel, has been perused.
5. Before I proceed to examine the merits of this application I may at the outset mention that this application ought not to have been listed in the Court even by the Registry as the provisions of Section 407, Cr. P. C. have not been properly complied with. Condition precedent to filing an application under Section 407, Cr. P, C. is filing an application for such transfer before the Sessions Judge and its rejection. Proviso to Sub-section (2) of Section 407, Cr. P. C. reads as under :--
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.'
6. It could be argued by the learned counsel that he has used the words 'transfer the case to any other Court of competent jurisdiction in any of the District of State of Rajasthan' would not make ipso facto an application for transfer of the case outside the District so as to circumvent the aforesaid provisions of law, unless it was first shown that there was a good ground for transferring the case outside the District. In the entire application the petitioner has not said the word about the learned District and Sessions Judge of the District as to why he should not hear the appeals and nothing has been mentioned that he approached him in the first instance and rejected the application. Secondly, every application under Section 407, Cr. P. C. for an order under Sub-section (1) has to be made by a motion and has to be supported by an affidavit or affirmation accept when the applicant is the Advocate-General of the State. An affidavit has been filed with this application that there is nothing to indicate that a motion has been made as contemplated by Sub-section (3) of Section 407, Cr. P. C. Similarly according to Sub-section (5) of Section 407, Cr. P. C. it is obligatory for the petitioner to give the copy to the Public Prosecutor in writing. A 24 hours' notice has to be given to 'the Public Prosecutor which is the minimum period required by him. It has been mentioned in Sub-section (5) of Section 407, Cr. P. C. that no order shall be made on the merits of the application unless at least 24 hours have elapsed between giving of such notice and the hearing of the application. In the instant case the copy has been given to the Government Advocate on 11-9-89, on the same day it has been filed and it has been listed in Court on 12-9-89 which, in my opinion, is no proper observance of the provisions of Sub-section (5) of Section 407, Cr. P. C. Various Benches of this Court had observed about the aforesaid requirements more than once and I need not repeat them except stating that the Registry should ensure that the provisions of Sub-sections (2) to (5) of Section 407, Cr. P. C. are strictly complied with as they are mandatory provisions of law and for these reasons I would have dismissed this application.
7. I would have also rejected this application on the ground that there is great variance between the grounds taken in the petition and the affidavit. According to the grounds mentioned in the petition the petitioner was not present on 30-8-89 in the Court of Mr. Brij Lal Bundel and whatever he has stated is a reproduction of what transpired between Ravindar Kumar and Shri Bundel. While in the affidavit it has been mentioned that the contents of para 3 of the affidavit are true and correct to his personal knowledge which obviously is not correct. It was expected of the petitioner who is a practising lawyer that he would be cautious in drafting the petition as well as the affidavit muchless when he himself is the petitioner in the case.
8. I find from the record that there is one more appeal pending before the same Court filed by one Shri Bhagwat Swaroop which is Criminal Appeal No. 14/89 wherein also a transfer petition has been filed and is pending in this Court which is likely to be listed for admission on 5-3-90. Since it is not listed today but still file is tagged along with this file, I deem it proper to take note of it particularly because of my order, dated 27-10-89 passed in that case. I have perused the explanation given by learned Addl. Sessions Judge, Shri Brij Lal Bundel, and have no reason to disbelieve whatever he has stated therein. For all those reasons I was not inclined to transfer the case from the Court of Shri Lal Bundel on the grounds mentioned above, but still to secure the ends of justice I am inclined to pass an order in this case because of the first principle of jurisprudence that justice should not only be done but it should appear to have been done and it is the apprehension of the applicant which is of prime importance. Mr. Manindar Kumar who was Secretary of Rajasthan High Court Bar Association though has not placed on record the resolution passed during his tenure yet I do not disbelieve as it is a statement at the Bar which I value and he may have a genuine apprehension that since he was instrumental in convening a meeting where resolution against Shri Bundel was adopted. He may have an apprehension of not getting justice. The apprehension may be real or illusory, but suffice it to say that in the circumstances it would defend the cause of justice if the case is heard by some other Judge as Shri Bundel has also gracefully recommended.
9. I would, therefore, direct the learned Sessions Judge, Dholpur to withdraw the criminal Appeal No. 13/89 and he connected appeals, if there are any from the Court of Addl. Sessions Judge, Shri Brij Lal Bundel, and place them before Shri S.N. Shah, Special Judge, Dacoity Affected Areas, Dholpur, who may be requested to decide these appeals in his capacity as Addl. Sessions Judge, Dholpur. It may be conveyed to Shri S.N. Shah that so far as possible he may dispose of the appeals within a period of 3 months.