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1. This application is filed under section 407 of the Code of Criminal Procedure seeking transfer of the complaint filed by the second respondent herein before the J.M.F.C. Bhatkal, North Kanara District, to any other Magistrate Court of either Shimoga District or Bangalore District. A few facts and circumstances which led the petitioners to approach this Court under section 407, Cr.P.C. are as follows :

2. The case of the petitioners is that they are the residents of Bangalore city. Respondent-2 file a private complaint under section 200, Cr.P.C., before the J.M.F.C. Bhatkal against these petitioners for an offence punishable under section 500, I.P.C. alleging that the petitioners have made a defamatory statement by publishing an article in a newspaper called "Daivajna Vani" which relates to the affairs of religious trust, namely, "Daivajna Brahmin Guru Peetha Samathapana Trust, Bangalore". On the allegations made in the complaint, the Judicial Magistrate First Class, Bhatkal, took cognizance and then ordered to issue process to the petitioners herein P.C. No. 12 of 1989 which later came to be numbered as C.C. No. 1777 of 1989. Pursuant to the process issued, it is clear from the order sheet maintained by the J.M.F.C. Bhatkal that A. 4 appeared and later he had engaged an Advocate by name Sri S. S. Kolkebail, a member of Kundapur Bar. These petitioners filed a Criminal Revision Petition in Cr.R.P. 343/89 alleging that in the absence of any prima facie case the Magistrate has chosen to issue process to the petitioners. The said Criminal Revision Petition was dismissed by this Court on 26-2-1991.

3. On 22-7-1991 petitioners have filed this application under section 407, Cr.P.C., within 25 days from the date of their earlier case filed in Cr.R.P. 343/89 which was rejected on 26-2-1991, with a request to transfer the case, namely, CC No. 1777-89 on the file of the J.M.F.C. Bhatkal to some other Magistrate Courts of either Shimoga District or Bangalore District for the following reasons : (1) If the complaint is to be tried at Bhatkal Court itself, the petitioners apprehend that they may not get fair and impartial enquiry; (2) In spite of their best efforts they were unable to get the services of the Advocates as Bhatkal Bar consisted of only three Advocates. Out of three, one is already appearing for respondent-2 and other two are neither active practitioner nor accepted petitioner's brief to appear on their behalf in the said Court. Out of three, the Advocate who is appearing for respondent-2 is none other than the son of the President of the Trust in question. In spite of such a failure to secure services of an Advocate, the trial Court is in hurry to proceed with the case. Thus, it is expedient in the interest of justice to transfer the case from Bhatkal to some other Court as mentioned earlier.

10. After hearing both sides, now the points that arise for consideration are :

1) Whether allegation made by the petitioner that if the case is tried at Bhatkal they may not get fair and impartial enquiry is sustainable ? Or
2) Whether non-availability of Advocates is a circumstances, that transfer of case from Bhatkal to some other place i.e., either to Shimoga or Bangalore District, expedient in the ends of justice ?

11. In order to know when transfer of a case from one Court to another be given effect to under the Code of Criminal Procedure, it is proper to extract hereunder Section 407, of Cr.P.C., which reads as follows :

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197."

Section 407, Cr.P.C. of 1973 is identical to S. 526, Cr.P.C. 1898. A reading of Section 407, Cr.P.C. makes it clear that this Court can pass an order whenever it appears that a fair and impartial inquiry or trial cannot be had in a particular Court or transfer of a case is expedient for the ends of justice. When it is established that a party may not get a fair and impartial inquiry or trial or circumstances are of such nature which are convinced the Court that transferring of a case is inevitable or expedient in the ends of justice the Court can pass such an order. But in the case on hand, from the material now produced, it is clear that Advocates are available at Bhatkal. It is also clear that it is not the members of Bhatkal Bar alone are attending the J.M.F.C. Court at Bhatkal but Advocates of neighboring Bars are attending the said Court. Non-availability of services of Advocates is one thing, but non-availability of a particular Advocate is something else.