R. v. Hashimu s/o Mohamed Mfaume, Misc. Crim. Cause 9-D-68, 25/5/68, Saidi J.

R. v. Hashimu s/o Mohamed Mfaume, Misc. Crim. Cause 9-D-68, 25/5/68, Saidi J.

Accused was charged with stealing a bicycle. Complainant was the third of the prosecution witnesses; when called upon to cross-examine, accused asked that the case be transferred to another magistrate, saying “I do not see why this witness did not give evidence first as he appears to have been the complainant.” Having doubts as to the proper course, the magistrate forwarded the case file to the High Court for direction.

            Held: Transfer of a case to another magistrate is covered by section 80 of the Criminal Procedure Code. Where the grounds for transfer are that it is necessary to secure a fair trial, “ a clear case must be made out that the accused person has a reasonable apprehension in his mind that he will not have a fair and impartial trial transferred.” It is enough that the accused ’s apprehension itself is reasonable, whether or not the High Court believes that transfer is necessary for any other reason; but his fears must be grounded in “the proved existence of distinct events giving rise to a reasonable apprehension ….” [Quoting Wilson, J. In Miscellaneous cause No. 10 of 1937, 1 T.L.R. (R) 129; citing Baktu Singh v. Kali Prasad (1900) 28 Cal. 297, 301; and Bhag Singh v. Rex, 1 T.L.R. (R) 135.] Neither the order in which the witnesses were called here, nor any other aspects of the conduct of the trial, would cause the accused to reasonably fear that he would not receive fair treatment. Continuation of trial by same magistrate ordered.