Judgment 1. Both these applications can be conveniently disposed of by this common order, as the applicants in both the applications are the accused in one and the same case i.e. Sessions Case No.357/2011 pending before the Court of Sessions at Ahmednagar. Both the applications have been made by different accused in the said case praying that the said case be transferred to any other Court of Sessions in any other Sessions Division. The grounds on which the prayer for transfer, as contemplated under Section 407 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), is made are also the same in both the applications, viz. ‘that a fair and impartial trial cannot be had in any Court of Sessions in the Ahmednagar Sessions Division’, and that, ‘it is expedient for the ends of justice that the case be transferred for trial to a Court outside Ahmednagar Sessions Division.’ 2. For comprehending the basis on which the claim ‘that a fair and impartial trial cannot be had in the Court of Sessions at Ahmednagar’, and that, ‘it would be in the interest of justice to transfer the case to another Sessions Division’, has been made, a reference to the facts of the case would be necessary. 3. The case relates to the unnatural death of one Ashok Lande. On 19.05.2008 Umesh Lande the brother of the deceased Ashok Lande lodged a report with the police, on the basis of which, a case in respect of offences punishable under Section 279 of the Indian Penal Code (IPC) and section 304A of IPC, as also the offences punishable under the Motor Vehicles Act was registered against an unknown offender. The case was to the effect that Ashok was given a dash by some unidentified vehicle causing injuries to him, which resulted in his death. After investigation, the police submitted an “A” Summary report, which was accepted by the learned Magistrate on 02.02.2009. 4. On 09.09.2009, the first informant Shankarrao Raut lodged a complaint before the Judicial Magistrate, First Class, Ahmednagar alleging that actually the said Ashok was murdered by some persons, and that, it was not a case of a dash given by a vehicle, but was a case of assault and killing. On this complaint, the learned Magistrate ordered investigation, as contemplated under Section 156(3) of the Code. On this complaint, the learned Magistrate ordered investigation, as contemplated under Section 156(3) of the Code. A fresh First Information Report alleging commission of offences punishable under section 302 of IPC, section 201 of IPC, section 120B of IPC, etc., read with section 34 of IPC came to be registered. After investigation, a charge-sheet has been filed against the applicants and some others. 5. When the transfer applications appeared before this Court, it was noticed that the first informant Shankarrao Raut had sent a communication to the Registry of this Court, by fax, praying that he be heard in the matter. Accordingly, the Registry was directed to give a notice of the date of hearing of the applications to the said Shankarrao Raut, who subsequently appeared and made an application for intervening in the matter. He was permitted not only to assist the learned Additional Public Prosecutor in opposing the transfer applications, but also to make submissions through his counsel. Even after his counsel had been heard in the matter, he himself was also permitted to make submissions, in person, opposing the transfer applications. 6. I have heard Mr. R.N. Dhorde, the learned Senior Counsel for the applicants in Criminal Application No. 6324/2013. I have also heard Mr. N.V. Gaware, the learned counsel for the applicants in Criminal Application No.6323/2013. I have heard Mr. N.B. Narwade, the learned counsel for the First Informant Shankarrao Raut – the intervenor as also the intervenor himself, as aforesaid. 7. Mr. Dhorde as well as Mr. Gaware, both submitted that the applicants are responsible people and have high status in the society. It is submitted that the applicant no.1 in Criminal Application No.6323 of 2013 is an Ex-Mayor of Ahmednagar Municipal Corporation and a sitting Corporator. That, the applicant no.2 is a reputed businessman and both are children of one Bhanudas Kotkar, who has been the Chairman of the Agricultural Produce Market Committee (APMC) and a renowned political party in Ahmednagar. The applicant no.1 Shivaji Kardile in Criminal Application No.6324/2013 is a sitting M.L.A. and has been a Minister in the State of Maharashtra previously. He is a member and office bearer in several societies and is a popular political leader. The applicant no.1 Shivaji Kardile in Criminal Application No.6324/2013 is a sitting M.L.A. and has been a Minister in the State of Maharashtra previously. He is a member and office bearer in several societies and is a popular political leader. It is submitted that the applicants and others have been falsely implicated in this case, at the instance of political rivals of Shivajirao Kardile, Bhanudas Kotkar and his two sons Sandip Kotkar and Amol Kotkar. It is submitted that though the incident has taken place on 19.05.2008, the complaint regarding the same was lodged by Shankarrao Raut only on 09.09.2009 i.e. after a gap of about 16 months from the date of incident, though Shankarrao claims to be an eye witness to the incident. There are other contentions advanced suggesting that the applicants have been falsely implicated. 6. In my opinion, whether there is substance in the complaint or not, is not a matter requiring consideration in this transfer application. That is a matter to be decided by the trial Court and has no bearing on the aspect of transfer. Nevertheless, the conduct of the First Informant/Intervener having been highlighted as a factor generating an atmosphere in which a fair trial cannot be held, the facts of the case, and at any rate, the circumstances leading to the registration of the offence and the role played by the First Informant/ Intervener in the matter at various stages, cannot be altogether ignored. The learned counsel for the applicants submitted that because of the manner in which the First Informant–Shankarrao Rauthas been interfering in the investigation and even in the court proceedings, an atmosphere hostile to the applicants and the other accused has been created, and that, in such an atmosphere, an impartial and fair adjudication as to the guilt or innocence of the applicants and other accused cannot take place. A number of instances, which, according to the applicants, make it evident that in the Sessions Division at Ahmednagar, the applicants are not likely to get a fair trial are mentioned in the applications and pointed out to this Court. 7. The learned counsel for the applicants submitted that there has been vast and continuous reporting of the matter in press right since the investigation stage. 7. The learned counsel for the applicants submitted that there has been vast and continuous reporting of the matter in press right since the investigation stage. It is submitted that because of the political background of Bhanudas Kotkar, his son Sandip Kotkar and Shivaji Kardile, their arrest and alleged involvement in the offences made the matter very sensitive in the locality, and that, the Investigating Agency had been giving publicity to each and every step and aspect of the investigation by disclosing the same to media. That, even what the witnesses stated before the police was being disclosed to the media. According to the applicants, because of the interference in the investigation, it has been carried out in a biased and unfair manner. It is submitted that the vast publicity given even to the trivial matters relating to the investigation, arrest and trial of the accused persons, has resulted in adverse public opinion against the applicants and the other accused. It is submitted that the Court proceedings are being reported in great details, and that, this is being done, primarily, at the instance of the First Informant and the Investigating Agency. It is submitted that such adverse publicity and generation of a hostile atmosphere is bound to affect and influence the mind of the trial Judge eliminating the possibility of an impartial and fair trial. 8. I have gone through the Annexures to the applications, the application for intervention filed by the First Informant, as also the counter affidavit filed by the Investigating Officer. 9. Indeed, it does appear that the matter is being reported very widely in the media. Some of the news items, copies of which are annexed to the applications, indeed project the applicants, as if they are already proved to be guilty. There are news items to the effect that some Medical Officers had deliberately and under pressure of some of the accused persons, changed the notes of the postmortem examination, and that, that the postmortem report has been changed was confessed by the Medical Officer before the Police. It was reported in one Marathi daily that the applicant Shivajirao Kardile had been implicated by one witness, by making a statement before the police. There are newspaper reports to the effect that some of the accused persons ‘are not cooperating with the police’ and are giving evasive replies. It was reported in one Marathi daily that the applicant Shivajirao Kardile had been implicated by one witness, by making a statement before the police. There are newspaper reports to the effect that some of the accused persons ‘are not cooperating with the police’ and are giving evasive replies. The newspaper reports are seen to be giving great publicity to the Officers of the Investigating Agency and the First Informant himself. Also, a Press Note issued by the First Informant is brought to my notice, wherein there is criticism of the order granting bail to some of the accused by the Additional Sessions Judge. The language of the Press Note is not very temperate. That by itself might not be significant, but in the same Press Note, the Magistrate, who had remanded the accused persons into police custody has been described as “brave” and “fearless”. That a case in respect of a non-cognizable offence was registered even against the counsel of the accused persons, at the instance of the First Informant, is also significant in the context of judging the atmosphere prevailing in the locality. It appears that the trial is attracting the attention of the local residents because of the political background of some of the accused persons; and at least on a few occasions, a crowd had gathered in and around the Court House. 10. The question is ‘whether there are reasonable grounds sufficient to create a belief in the mind of the applicants that a fair and impartial trial cannot be had in the Court of Session in the Sessions Division of Ahmednagar.’ Generally such a ground is put forth on account of the adverse attitude of the Presiding Judge, but there would be cases where transfer on this ground would be sought because of the general hostile atmosphere created in a particular locality against a particular accused. It is well settled that it is not necessary that the applicant for transfer must be able to show actual bias in the mind of the Judge, or that because of the hostile atmosphere prevailing in the locality the Judge is not likely to decide the case in accordance with law, but it is sufficient, if the applicant for transfer shows that there are grounds for entertaining such an apprehension. It is also well settled that reasonableness of the apprehension of bias or prejudice, must be viewed from the standard of the accused. 11. In this case, I am satisfied that the publicity that is being given to every stage of the case is certainly unusual, and that, the reporting is, by and large, against the accused persons. 12. In the counter affidavit filed by the State, the emphasis is on ‘that the applicants are guilty of very serious offences.’ The emphasis is on ‘that there is sufficient material to show the involvement of the applicants in the alleged offences.’ These aspects are certainly not relevant in the context of the present applications. The only relevant fact mentioned in the counter affidavit is that there are a large number of witnesses and if the case is transferred outside the District, it will be inconvenient to the witnesses as well as to the police machinery. It is also submitted that due to the reports in the media, a Judge can never be prejudiced. 13. In the application for intervention filed by the First Informant, apart from denying the contentions of the applicants, what has been highlighted is that ‘terming the trial as ‘media trial’ only because of the publication of the matter in the newspaper is not correct, and that, such publicity is not likely to affect the Justice Delivery System.’ It is submitted that the claim that there is no possibility of a fair and impartial trial taking place in the Court of Sessions at Ahmednagar is not correct. It is submitted that there are no legal grounds to transfer the proceedings to another Sessions Division. There are several other averments in the application filed by the First Informant, but they only make an attempt to point out how the applicants are guilty, and therefore, not relevant in the context of transfer of the case. 14. The necessity of the trial being held in a proper atmosphere cannot be over emphasized. It has been recognized time and again by the superior courts and even by the Apex Court. The trial must be held in an atmosphere, which does not create a suspicion that there has been or is likely to be an improper interference in the course of justice. Fair and impartial trial is one of the prime requisites of administration of justice. The trial must be held in an atmosphere, which does not create a suspicion that there has been or is likely to be an improper interference in the course of justice. Fair and impartial trial is one of the prime requisites of administration of justice. A trial may be rendered unfair due to several factors. Sometimes, the atmosphere prevalent in a locality may be a cause to affect the proper conduct of the trial. Sometimes, bias in the mind of the Presiding Judge would be a factor affecting fairness in a trial. Sometimes, the situation created by the victim or the victim’s relatives may be such as can reasonably create an apprehension in the mind of an accused that he will not be able to defend himself effectively. Thus the ground mentioned in clause (a) of subsection (1) of section 407 of the Code is too wide and the only requirement would be that on taking an overall view of the matter the Court should find it to be expedient for the ends of justice to transfer the case. 15. Undoubtedly, the First Informant/Intervener might be aching bona-fide and only out of a desire to see that the guilty are punished. However, the guilt of the accused – howsoever dangerous and bad they may be is required to be established by holding a trial, where proper, full & effective opportunity to defend themselves is given to the accused. Where a hostile atmosphere against an accused exists, the accused may find it difficult to defend himself, as even his counsel would find it very stressful & difficult to neutralize the effect of such atmosphere, and be at his best. The prosecutor is likely to be overzealous in attempting to secure the conviction and there is every possibility of his deviating from his traditional role. He may prefer to act as per the desire of the First Informant/Intervener rather than invite criticism of not doing his duties properly. True, these are mere possibilities, but they are genuine and real. In this case, the interventions at various stages by the First Informant/ Intervener have been too many and it is quite likely that a detached, calm and normal as is required for a fair trial cannot be had if the trial is not transferred outside Ahmednagar Sessions Division. True, these are mere possibilities, but they are genuine and real. In this case, the interventions at various stages by the First Informant/ Intervener have been too many and it is quite likely that a detached, calm and normal as is required for a fair trial cannot be had if the trial is not transferred outside Ahmednagar Sessions Division. It is primarily because of the local interest and local publicity generated that the interventions & interference by the First Informant/Intervener are perceived by the applicants as posing a threat to a proper normal & fair trial. Transferring the case outside Ahmednagar Sessions Division would put an end to such apprehensions. 16. It therefore needs to be examined as what exactly the objection of the State and that of the First Informant is to the transfer of the case to some other Sessions Division. As aforesaid, the emphasis is basically on ‘that the applicants are dangerous, they are seasoned offenders, that, they are guilty, etc.’ and only a little part of the say put forth and the submissions made, deal with the aspect relevant in the context of the question of transfer. The convenience of witnesses is given as one of the grounds opposing the transfer. It is also submitted that there would be danger to the lives of the witnesses, if they are required to attend any Court outside the Nagar District. 17. This is particularly emphasised by the First Informant/Intervener, who categorically stated that his life would be in danger, if he would be required to attend any Court outside Ahmednagar. It however, transpired that he has already been provided with adequate police protection. 18. Mr. Dhorde, in this context has pointed out to me that the First Informant had written a letter to the Hon’ble Home Minister, Maharashtra State, the Home Secretary and Director General of Police on 29.07.2013, a copy of which is annexed by the First Informant to his application for intervention. In this letter, the First Informant/Intervener has submitted that the applicant – Shivaji Kardile, should be charged under the provisions of the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act) and the case should be lodged in the Special Court (under the MCOC Act) at Nashik. Apparently, there is no Special Court under the MCOC Act in Ahmednagar district. In this letter, the First Informant/Intervener has submitted that the applicant – Shivaji Kardile, should be charged under the provisions of the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act) and the case should be lodged in the Special Court (under the MCOC Act) at Nashik. Apparently, there is no Special Court under the MCOC Act in Ahmednagar district. The contention of the learned counsel for the applicants is that this shows that the First Informant/ Intervener has no real apprehension to go out of Ahmednagar. In view of this, I had asked the learned counsel for the First Informant/Intervener as to how the First Informant/Intervener would attend the Court at Nashik, if he is scared of going outside the Ahmednagar district. There is no satisfactory reply to this, either from the First Informant/Intervener or his counsel. 19. Mr. Dhorde also pointed out that a number of accused in the case, who are on bail, have been prevented from entering within the local area of Ahmednagar district as a condition of bail. Perhaps, the learned counsel wanted to submit that the perceived danger lies in the accused persons entering Ahmednagar district and not in they being away there-from. 20. After carefully considering the matter, I do not think that the apprehension expressed by the applicants is feigned one and the transfer is sought for ulterior motives. The apprehension of the applicants that they will not get a fair and impartial trial cannot be said to be unreasonable. It cannot be said the grounds for such apprehension are nonexistent. In my opinion, a case for transfer outside the Ahmednagar Sessions Division has been made out by the applicants. 21. When this order was being pronounced, a communication received from some persons who claim to be the witnesses in the said sessions case, addressed to the Registrar of this Court is placed before me. This communication also speaks of how dangerous the applicants are, how they have been committing most serious offences since several years, etc. An apprehension is expressed that many of the witnesses are old, and therefore, the case may not be transferred. A grievance is also expressed that the applicants are delaying the trial of the case. 22. From this communication, my view about the necessity of transferring the case outside Ahmednagar district is further strengthened. An apprehension is expressed that many of the witnesses are old, and therefore, the case may not be transferred. A grievance is also expressed that the applicants are delaying the trial of the case. 22. From this communication, my view about the necessity of transferring the case outside Ahmednagar district is further strengthened. This communication seems to be a result of the fact that ‘how serious would be the possible hardship caused to the witnesses and State if the case is transferred outside Ahmednagar’ was specifically questioned and discussed at the time of arguments. Indeed, the First Informant and the witnesses are creating such an atmosphere that the applicants apprehension that they would not be able to defend themselves properly unless the case is transferred, must be held to be reasonable. As regards the question of convenience and security of the witnesses, appropriate directions can be given, to ensure that no prejudice is caused to the First Informant, witnesses and the prosecution by the transfer if the case is transferred outside Ahmednagar Sessions Division. 23. At this stage, I have heard the learned counsel for the First Informant/Intervenor and the learned Additional Public Prosecutor to know if they would suggest the transfer to any particular Sessions Division now that a decision to transfer has been taken. However, neither the First Informant/Intervener, nor the learned Additional Public Prosecutor makes any submissions in that regards. It is categorically stated that they do not wish to say anything in that regard. 24. Considering all the relevant aspects of the matter and since the First Informant wanted the provisions of MCOC Act to be applied to one of the accused persons and the case be tried at Nashik, where the Special Court under that Act exists, I think it fit to direct the trial to be transferred to Nashik Sessions Division. 25. As the applicants had agreed in the course of arguments that they will bear the costs of the witnesses, that would occasion on account of the transfer, it would be proper to impose appropriate conditions in that regard. 26. The Applications are allowed. The Sessions Case No.357/2011 shall stand transferred to the Court of Sessions in the Sessions Division for Nashik district. The learned Sessions Judge, Nashik shall assign the case for trial to any Additional Sessions Judge within Nashik Sessions Division, as she may think fit. 26. The Applications are allowed. The Sessions Case No.357/2011 shall stand transferred to the Court of Sessions in the Sessions Division for Nashik district. The learned Sessions Judge, Nashik shall assign the case for trial to any Additional Sessions Judge within Nashik Sessions Division, as she may think fit. The applicants, jointly and severally, shall initially deposit an amount of Rs.25,000/- in the Court to which the case would be assigned for trial, to meet the traveling expenses of the witnesses. The applicants shall continue to deposit appropriate amounts to meet the expenses towards the witnesses allowance, from time to time, as may be directed by the trial Court. The concerned Authorities of the State shall ensure that proper security is given not only to the First Informant, but also to the other witnesses. The Court to which the case would be assigned shall expedite the trial and endeavour to complete it as early as possible, and preferably within six months from the date of receipt of the record and proceedings by it.