This is an application for transfer under section 407 CrPC arising out of an order dated 4.5.96 passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No.4 (J-J) of 1996 under sections 302/34 JPC. 2. Heard Mr. Borthakur, learned counsel for the petitioners and Mr. JM Choudhury, learned counsel for the respondents. Also heard Public Prosecutor, Assam. The petitioners are brothers of Smti Varsha Bharech who was married to respondent No.2 on 3.3.1995 at Jorhat, after marriage she lived her matrimonial home. On 9.6.95 around 11.30 PM deceased Varsha had talk over telephone with the family members of the petitioner, thereafter, the petitioners came to know that on the same night around 1.30 AM Varsha was found dead by hanging tied with a bed sheet in the ventilator of the room. At that time respondent Nos.2 and 3 were present in the house along with other servants while other members of the family were out of station. It is alleged by the petitioners that the police initially did not show any interest in the matter, thus requiring the petitioner to file complaint before the Officer-in-charge and praying for prompt action. It is further alleged that sensing the outcome, the respondent No.2 got admitted in a private nursing home and was operated for appendicites on 23.6.1995. It came to light that Shri Sanjay Kumar Bhagat was a cook in the house of respondents 2 and 3, was eye witness of the case. Initially a case of unnatural death was registered, but it turned down to a case of murder. On 26.6.96 Sanjay's statement under section 164 CrPC was recorded by Judicial Magistrate. The respondent No.2 was hospitalised till 112.7.95. 3. On 20.7.95 an application for grant of bail was moved to the Sessions Judge, Jorhat on the health ground and a report was called from the Jail Doctor. On 24.7.95 the Sessions Judge granted bail to both the accuseds. 4. It is the petitioners case that on 30.7.95, the petitioner No.2 who resides in Bongaigaon received a telephone call from Jorhat and the person calling identified himself as respondent No.3 threatened the petitioner not to take any action as regards their bail or in the case itself, otherwise he would be killed. 4. It is the petitioners case that on 30.7.95, the petitioner No.2 who resides in Bongaigaon received a telephone call from Jorhat and the person calling identified himself as respondent No.3 threatened the petitioner not to take any action as regards their bail or in the case itself, otherwise he would be killed. A report was lodged to this effect to Bongaigaon PS on 31.7.95, the petitioner then moved an application under section 439 (2) CrPC for cancellation of the bail and the bail was cancelled by the High Court. While cancelling the bail, the learned Single Judge observed that after examination of the material prosecution witnesses, if the accuseds are advised, they may move before the trial Court for bail Accordingly active move on 20.12.95 on the basis of a letter received from an Advocate at Delhi informing that the Supreme Court being closed for X-Mass vacation and would reopen on 2.1.96, it was the bail petition would be likely to come in the 3rd week of January, 1996, on the strength of this letter, a prayer was made before the High Court to suspend the order of surrender of the accused till 3rd week of January, 1996. Accordingly time was extended for surrender of both the accused till 12.1.1996. Thereafter, the accused surrendered before the CJM on 28.12.95 and also moved an application for grant of bail and this prayer was rejected on the same day. The CJM directed for production of the accused on 3.1.96 so that commital order could be passed, but on 29.12.95 another application for bail was moved before the High Court and the learned Single Judge of this Court passed an order which was challenged by the petitioner before the Supreme Court and the impugned older was set aside. The accused respondents ultimately surrendered before the learned Sessions Judge, Jorhat in compliance of the order dated 1.3.96 passed by the Supreme Court. 5. Ultimately, the trial proceeded and on 22.4.96 the trial Judge examined as many as six witnesses for the prosecution and the examination of all the witnesses was completed within a short period of two hours as the Court had observed half day holiday due to the death of the then Chief Minister of Assam, Shri Hiteshwar Saikia. 5. Ultimately, the trial proceeded and on 22.4.96 the trial Judge examined as many as six witnesses for the prosecution and the examination of all the witnesses was completed within a short period of two hours as the Court had observed half day holiday due to the death of the then Chief Minister of Assam, Shri Hiteshwar Saikia. On 25.4.96 the record was placed before the trial Court for consideration of the bail petition moved by the accused and on the same day the trial Court allowed the accused to go on bail. The petitioners had engaged an Advocate to see that the guilty is to punish. The hot hest shown in the case by the trial Judge led the petitioners to believe that they would not get a fair trial, the manner in which the bail was granted and the evidence recorded fortified their apprehension. It was for this reason that on 4.5.96 an application was moved before the trial Court stating that some time may be granted to the petitioners to move this Court for appropriate orders for transfer of the case, the trial Court accordingly granted a month time till 4.6.96 and this petition was moved on 31.5.96. By order dated 3.6.96 further proceeding before the trial Court was stayed. Highlighting the fact as noted above and the unholly hest on the part of the trial Court, to dispose of the case and the manner of recording of evidence, learned counsel submitted that it is a fit case for transfer, justice must not only be done, but it must seen to be done and it is this elements which according to him was unfortunately missing. Mr. J.M. Choudhury, learned counsel for the accused respondents on the other hand submitted that a major part of the prosecution evidence having already been recorded by the trial Court apart from hardship and inconvenience, transfer of the case at such a juncture would seriously affect and hamper the cause of justice and adversely reflect upon the trial Court. 6. The question that arises for consideration is whether there are justifiable ground for transferring the case. The law on this point is well settled by a series of judgment of the Supreme Court as reported in Maneka Sanjay Gandhi vs. Rani Jethmalani, AIR 1979 SC 468 , in Kaushalya Devi vs. Mool Raj, (1964) 1 CrL J 233. 7. 6. The question that arises for consideration is whether there are justifiable ground for transferring the case. The law on this point is well settled by a series of judgment of the Supreme Court as reported in Maneka Sanjay Gandhi vs. Rani Jethmalani, AIR 1979 SC 468 , in Kaushalya Devi vs. Mool Raj, (1964) 1 CrL J 233. 7. The basic principle is the assurance of a fair trial .is the first imperative of dispension of justice, if there is reasonable apprehension on a part of the party to a case that justice will not be done, the petitioner seeking transfer in order to demonstrate that justice will inevitably feel suffice if he shows from the circumstances which it can be inferred that the apprehension entertained by him is reasonable one in the circumstances alleged. Of course relates convenience of the parties is also one of the facts to be taken into consideration in such matters. 8. In view of the facts as set forth above, it remains to be seen whether the apprehension entertained by the petitioners is reasonable one so as to justify transfer of the case. For this purpose recapitalisation of facts, and the orders passed by the Courts need be referred to. 9. It must be borne in mind that crimes such as the one at hand are seldon now of glaring publicity, but that not suggest any concession to be made to the prosecution in the matter of proof of the crime committed. It is for the trial Court to consider and decide, but the trial has to be a fair trial. Right from the moment, the accused were arrested that too after a much ado, bail was also for the accused on medical ground, it was submitted by the accused counsel that a comprehensive report be called for from the Jail Doctor regarding state of healthy, accused Ajoy Kumar had been admitted to a nursing home and eventually operated for appendicites on 23.6.95 on which date he was produced before CJM, Jorhat. It was because the Doctor had advised him for rest of 21 days, medical report was called for on 20.7.95 and it was submitted by 24.7.95. As per accused Ajoy Kumar Agarwalla. It was because the Doctor had advised him for rest of 21 days, medical report was called for on 20.7.95 and it was submitted by 24.7.95. As per accused Ajoy Kumar Agarwalla. the report stated that he had tenderness over the operation area and his blood pressure is low and the accused Sandip Agarwalla the Jail Doctor opined that he was suffering from giddiness, pain over the whole body and tenderness over right, illine region and is also passing blood in his urine and they needed better medical treatment preferably in Assam Medical College. Dibrugarh. Merit of the above and justification for grant of bail on such vague reports, what is surprising is that the grant of bail was not opposed by the prosecution is not in the bail order and the accused were allowed to go on bail on ususal conditions. 10. The complainant had to engage a counsel of their own who could under the law merely assist the Public Prosecutor, but the reason for engaging their own counsel is apparent. The complainant, therefore, applied for cancellation of the bail before this Court under section 439 CrPC which was allowed by order dated 13.12.95. Urging the facts and expressing their dissatisfaction with the nature and quality of investigation so much so even post mortem report was also faulted with and the complainant had to take up the matters with all levels of the police hierarchy praying for proper investigation which started quite at a late stage and it was only when the investigation commenced that the accused Ajoy got admitted in a private nursing home and they were arrested on 27.6.95. A series of threats and intimidation followed from the accused side to the complainant. The learned Single Judge taking into consideration, the abuse of liberty granted to the accused, set aside the bail order, directed the accused to surrender before the CJM within 15 days from the date of the order. Even while setting aside the bail, the learned Single Judge observed that if so advised, the accused petitioners at liberty to renew their prayer for grant of bail after examination of material prosecution witnesses before the trial Court. By this time, the charge sheet has already been filed as was stated by the learned counsel appearing for the accused. Even while setting aside the bail, the learned Single Judge observed that if so advised, the accused petitioners at liberty to renew their prayer for grant of bail after examination of material prosecution witnesses before the trial Court. By this time, the charge sheet has already been filed as was stated by the learned counsel appearing for the accused. The above order dated 13.12.95 was subject matter of yet another petition seeking its modification, alteration and/or extension of time so as to enable the accused to approach before the Supreme Court against the order. The learned Single Judge by his order dated 21.12.95 granted time till 12.1.1996. 11. As per order dated 21.12.95 time till 12.1.96 was granted to the accused for their surrender before the CJM. Jorhat. but the accused surrendered before the CJM on 28.12.95 itself with a petition for bail which of course was rejected by the CJM. Meanwhile one Sri Dinesh Kumar Bharech filed a revision petition under sections 397/401/482 CrPC, it was registered as Criminal Original Application No. 1066 of 1995 although it is not clear as to why a revision petition was filed, but the fact remains that this revision petition registered as Criminal Original Application No. 1066 of 1995 came to be listed before a learned Single Judge of this Court other than the learned Judge who had cancelled the bail granted to the accused. By order dated 29.12.95 passed in Criminal Original Application No. 1066 of 1995 the accused petitioners allowed to go on bail It is to be noted that on 13.12.95 the bail granted to the accused was set aside by the learned Single Judge in Criminal Original Application No.650 of 1995 and on 29.12.95 it was granted. It may also be noted that time till 12.1.96 had already been granted by the learned Judge who had set aside the bail granted to the accused, but instead of availing the time till 12.1.96 as granted the accused surrendered before the CJM on 28.12.95. On the one hand the accused vas seeking for modification of the order dated 13.12.95 which was disposed of on 21 12.95 granting sufficient time to the accused to surrender before the CJM and in the meanwhile, to avail of any further remedy from the Supreme Court as desired by them. From the dates it is evident that it was during the period of X-Mass vacation. From the dates it is evident that it was during the period of X-Mass vacation. On 28.12.95 the accused surrendered at Jorhat and on 29.12.95 the bail order came to be passed by this Court at Guwahati. 12. The, tell facts as noted above naturally agitated the complainant who approached the Supreme Court for cancellation of the bail granted vide order dated 29.12.95 and the Supreme Court in SLP (Criminal) No.205 of 1996 vide its order dated 11.3.96 cancelled the bail order dated 29.12.95 and further directed the accused to surrender within a fortnight from the date of order. It was observed by the Supreme Court that after their surrender, if and when the accused file an application for bail, the same may be disposed of in accordance with law. Accordingly, the accused surrendered before the trial Court and also prayed for grant of bail which was rejected by order dated 27.3.96. 13. The case was posted for evidence on 22.4.96, meanwhile the accused once again approached before the High Court for grant of bail. High Court rejected the bail petition giving liberty to the accused to apply for bail after examination of material witnesses as the trial of the case had already began. It is in the above context that the examination of recording of evidence of six witnesses within a short span of two hours in a sessions trial like murder, that the allegations made by the petitioners need to be considered. On 25.4.96 the application for grant of bail was moved by the accused was taken up for consideration, the bail order passed by the Additional Sessions Judge has been placed on record as Annexure X. Accused petitioners granted bail. 14. It is significant to note that while passing the bail order on 25.4.96 the learned Additional Sessions Judge has not bothered to see that the complainant were supplied a copy of the bail petition much less afforded an opportunity of being heard before passing any order, it was at their instance that the bail earlier granted was cancelled once by High Court and when it was granted by the High Court by another learned Single Judge of the High Court by the Supreme Court. In these circumstances there is hardly any scope to presume that the trial Court was not aware of the interest of the complainants who had engaged their own counsel. In these circumstances there is hardly any scope to presume that the trial Court was not aware of the interest of the complainants who had engaged their own counsel. In the case rules and legalism apart, it was the bounden duty of the trial Judge to have seen that a copy of the bail petition is furnished to the complainant as well, as not merely the State, it was further incumbent on the learned Judge to have heard the complainant's counsel, the least that was of expected of him, in the circumstances the order, Annexure X does not reflect any such precaution having been exercised by the Judge. The evidence was recorded on 22nd of April, the counsel appointed by the complainant was also present and the case was posted on 4.5.96 for examination of remaining witnesses, application for grant of bail was moved on 24.4.96 and it was taken up next day for consideration. Naturally therefore, on the date fixed i.e. 4.5.96 moved an application requesting the Court not to proceed with the case particularly in view of the shady and suspicious circumstances in surrounding and the grant of bail to the accused on 25.4.96 when the case was fixed on 4.5.96 just of a gap of 9 days, the complainant are not residents of Jorhat, they came from Bongaigaon and they could not have any inclink of the bail petition being moved and granted just next day, as indeed it was submitted that the intention was not to allow the complainant to have any inclink of bail petition. 15. It is in these circumstances, as noted above that the apprehension entertained by the petitioners is to be weighed and evaluated. They are brothers of Varsha who met with death in suspicious circumstances just within 3 months and 6 days of her marriage, she was the younger sister of the petitioner. Sensing and emotion have no place in law. but test of reasonability of apprehension, to be judged keeping in view of the realities of life, circumstances as noted above, amply justify the apprehension entertained by the petitioner. It satisfies all requirements of reasonabilities. Sensing and emotion have no place in law. but test of reasonability of apprehension, to be judged keeping in view of the realities of life, circumstances as noted above, amply justify the apprehension entertained by the petitioner. It satisfies all requirements of reasonabilities. the last act of the scene entertaining a bail petition behind the back of the complainant, and granting bail without affording any opportunity of hearing to the complainant knowing fully well that it was their instance that the bail granted to the accused had twice been cancelled, it was again at their instance that a case of unnatural death registered under section 174 CrPC owing to their efforts had to convert and register under section 302 IPC and quite legitimately so. Yet the learned Additional Sessions Judge who examined as many as six witnesses in hot hest manner completed recording of their evidence just within a short span of two hours, and not even heeding to the submission made by the learned counsel appointed by the complainant.' To say the least, these are not indication of fair trial, even if there had been no counsel appointed by the complainant, it was the duty of the trial Judge to see that the evidence is recorded in a fair manner, the sole eye witness whose statement had been recorded under section 164 CrPC was properly examined, it is the duty of the Presiding Judge of the Court to control the proceedings, the Public Prosecutor appearing for the State may faulter, the defence counsel may have one reason or other may go wrong, but it is primarily for the Court to see that the proceedings are conducted in a fair manner. it is here that the learned trial Judge has failed. The conduct and manner in which the bail was granted to the accused without making any comments, to say the least cannot be approved of. 16. The convenience of the parties, must also be considered. State is common. Whether it is one district or other so far as State is concerned, it hardly makes any difference whether the case is tried at place - A or place B, it is the same machinery, the same paraphernalia. 16. The convenience of the parties, must also be considered. State is common. Whether it is one district or other so far as State is concerned, it hardly makes any difference whether the case is tried at place - A or place B, it is the same machinery, the same paraphernalia. So far as the accused are concerned from the record it does not appear that money is a constraint with them, whether the trial takes place in their home town or in an adjoining district place, it will certainly not to make any difference to them so far as expenses are concerned and more or less same is the case for the complainant, may be out of concern for their younger sister, the moved right upto the Supreme Court, they have also engaged an Advocate of their own, all these factors fairly indicate that shift of venue of trial will not cause any inconvenience. The case is presently going on before the Additional Sessions Judge, Jorhat, it would not make any difference if it is transferred to any other adjoining district or even at Guwahati. 17. In view of the foregoing discussions, this revision petition deserves to be allowed. The grounds for transfer as set forth in section 407 (1) (a) (b) are amply made out. To my mind the transfer of the case from the Sessions Division, Jorhat to some other Sessions Division, is an imperative necessity and the same is accordingly ordered to transfer to the Sessions Division, Nalbari. It will also tent the convenience of the parties. It is, therefore, ordered that the Sessions Case No.4 (J-J) of 1996 under sections 302/34IPC (State vs. Ajoy Bharech Agarwalla and Sandeep Bharech Agarwalla) pending in the Court of the Additional Sessions Judge. Jorhat is transferred to the Sessions Division, Nalbari and the Sessions Judge. Nalbari shall himself try the case. The accused respondents are directed to appear before the Sessions Judge, Nalbari on 28.8.1997. Taking into considerations the unusual manner in which the accused were enlarged on bail by the learned Additional Sessions Judge, the same needs to be considered afresh in accordance with law. The complainant is also entitled to a hearing. But instead of cancelling the same, at this stage it is left to the discretion of the Sessions Judge, Nalbari. Taking into considerations the unusual manner in which the accused were enlarged on bail by the learned Additional Sessions Judge, the same needs to be considered afresh in accordance with law. The complainant is also entitled to a hearing. But instead of cancelling the same, at this stage it is left to the discretion of the Sessions Judge, Nalbari. It will be open to him to consider the question of grant of bail afresh and may in his discretion allow the accused to continue to remain on bail. The bail granted by the Additional Sessions Judge, Jorhat shall remain operative till the accused respondents appear before the Sessions Judge, Nalbari who may in his discretion allow them to continue to remain on bail till such time as he passes a fresh order thereon. Non appearance of the accused before the learned Sessions Judge, tyalbari on the date as fixed shall itself be a cause and result in for cancellation of the bail granted to the accused. Registry to take steps to see that the records of the case reaches to the Court of Sessions, Nalbari well in advance of the date fixed for appearance of the accused. The Additional Sessions Judge, Jorhat is directed to sent the same without any delay or loss of time, if required by Special Messanger