REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL.) NO.17 OF 2012
Mrudul M. Damle & Anr. …Petitioners
Versus
C.B.I. New Delhi …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. In this petition under Section 406 of the Code of Criminal Procedure,
1973, the petitioners pray for transfer of Criminal Case No. 45 of 2008
pending in the Court of Special Judge, CBI Cases, Rohini Courts, New Delhi
to the Court of Special Judge, CBI Cases, Court of Sessions at Thane,
Maharashtra on the ground of convenience of the parties and the witnesses
cited in the charge sheet by the prosecution.
2. Petitioners are husband and wife. While petitioner No.2-husband is
currently posted as Assistant Commissioner, Central Excise, Customs and
Service Tax at Vapi, Gujarat, petitioner No.1-wife is practicing as a
Chartered Accountant in the State of Maharashtra. Both the petitioners are
facing prosecution in Criminal Case No.45 of 2008 for offences punishable
under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988
read with Section 109 IPC. The said case was registered on 14th July, 2005
against the petitioner-husband on the basis of recovery of cash and other
property in the course of searches conducted at his houses in New Delhi and
Thane. The bank locker in the name of the petitioner No.1-wife was also
seized in the course of the said search operations.
3. The prosecution case, it appears, is that the petitioner No.2-Milind
Purushottam Damle while posted as Assistant Commissioner, Central Excise,
Customs and Service Tax at New Delhi, has amassed assets disproportionate
to the known sources of his income in his name and in the name of his
family during the period 1.4.2000 to 2.2.2005. Upon completion of the
investigation a charge-sheet was filed against the couple in which the
prosecution charged the husband with the commission of offences punishable
under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988
while the wife was accused of abetment of the said offence punishable under
Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 read
with Section 109 IPC. The charge-sheet in question was initially filed
before the Special Judge, CBI cases, Patiala House, New Delhi but
subsequently transferred to the Court of Special Judge, CBI cases, Rohini,
New Delhi. The charge-sheet enlists as many as 92 witnesses to prove the
prosecution case. It is not in dispute that 88 out of the said 92 witnesses
are from the State of Maharashtra, most of them being either from Thane,
Mumbai or Navi Mumbai districts while some are from Pune or Satara
districts of that State. The remaining 4 witnesses cited at serial nos.62,
68, 91 and 92 of the charge-sheet are from Delhi. Two of the said four
witnesses are said to be no longer in Delhi. The petitioners allege that
they have been regularly attending the Court in Delhi ever since the charge-
sheet was filed but not much progress has been made towards the conclusion
of the trial so far. Petitioner No.1, who happens to be a practising
Chartered Accountant in Thane, has apart from her professional commitments,
responsibility towards her mother who is aged 75 years and who stays with
her. Appearance of the said petitioner in Delhi would, therefore, cause
inconvenience to her on personal, professional and even the family front.
So also petitioner No.2 who is currently posted at Gujarat finds it
extremely inconvenient to travel all the way to Delhi on every date of
hearing. The petitioners assert that transfer of the case from Delhi to
Thane would, in the above circumstances, not only be convenient to the two
accused persons facing the trial but also to the witnesses cited by the
prosecution who shall find it easier to appear for their deposition at
Thane rather than travelling all the way to Delhi.
4. The petition has been opposed by the respondent who has filed a
counter-affidavit sworn by Sr. Supdt. of Police, ACU-IV, CBI, New Delhi, in
which the respondent has tried to justify the filing of the chargesheet in
Delhi on the ground that petitioner No.2 was during the check period i.e.
1.4.2000 to 2.2.2005 posted at Central Excise, New Delhi as Assistant
Commissioner w.e.f. 19th December, 2002 till the registration of the FIR.
The counter-affidavit does not however dispute the fact that 88 out of 92
witnesses cited by the prosecution are from Maharashtra.
5. We have heard learned counsel for the petitioners and Mr. H.P. Rawal,
Additional Solicitor General for the respondent. Section 406 of the
Cr.P.C. empowers this Court to transfer cases from one High Court to
another High Court or from a Criminal Court subordinate to one High Court
to another Criminal Court of equal or superior jurisdiction subordinate to
another High Court whenever it is made to appear to this Court that an
order to that effect is expedient for the ends of justice. The source and
the plentitude of the power to transfer are not disputed before us by Mr.
Rawal, counsel appearing for the respondent. Even otherwise as observed by
this Court in Dr. Subramaniam Swamy v. Ramakrishna Hegde (1990) 1 SCC 4,
the question of expediency depends upon the facts of each case, the
paramount consideration being the need to meet the ends of justice.
6. The material facts relevant to the determination of the question of
expediency are not in dispute inasmuch as the respondent do not dispute
that the chargesheet enlists 92 witnesses, 88 out of whom are from outside
Delhi and from different places in Maharashtra. It is also not in dispute
that petitioner No.1 is a Chartered Accountant practising in Thane,
petitioner No.2 who is the only other accused in the case who is currently
posted at Vapi in the State of Gujarat which is in comparison to Delhi
closer to Thane. It is in the light of those admitted facts obvious that
the trial in Rohini Court at Delhi would be inconvenient not only to the
accused persons but also to almost all the witnesses cited by the
prosecution except 4 who may be in or around Delhi. The case is even
otherwise not Delhi centric in the true sense inasmuch as the only reason
the FIR was registered in Delhi was the fact that petitioner No.2 was
posted in Delhi during a part of the check period.
7. Mr. Rawal no doubt argued that a transfer of the case outside Delhi
will cause prejudice to the respondent but was unable to show how that
would be so. Mr. Rawal had in fact taken time to examine whether the list
of witnesses could be suitably pruned to expedite the conclusion of the
trial. But after taking instructions, Mr. Rawal submitted that it would
not be possible at this stage to make any such statement, and rightly so,
because it is only the public prosecutor who can take a call on that aspect
after the trial starts, depending upon how the facts sought to be proved
are seen by him or have been proved.
8. In Abdul Nazar Madani v. State of Tamil Nadu, (2000) 6 SCC 204, this
Court while dealing with a prayer for transfer of the criminal case from
one Court to other emphasized the importance of fairness of a trial and
observed that while no universal or hard and fast rules can be prescribed
for deciding a transfer petition which has always to be decided on the
basis of the facts of each case, convenience of the parties including the
witnesses to be produced at the trial is a relevant consideration. This
Court observed:
“7. The purpose of the criminal trial is to dispense fair and
impartial justice uninfluenced by extraneous considerations. When
it is shown that public confidence in the fairness of a trial would
be seriously undermined, any party can seek the transfer of a case
within the State under Section 407 and anywhere in the country
under Section 406 Cr.P.C. The apprehension of not getting a fair
and impartial inquiry or trial is required to be reasonable and not
imaginary, based upon conjectures and surmises. If it appears that
the dispensation of criminal justice is not possible impartially
and objectively and without any bias, before any court or even at
any place, the appropriate court may transfer the case to another
court where it feels that holding of fair and proper trial is
conducive. No universal or hard and fast rules can be prescribed
for deciding a transfer petition which has always to be decided on
the basis of the facts of each case. Convenience of the parties
including the witnesses to be produced at the trial is also a
relevant consideration for deciding the transfer petition. The
convenience of the parties does not necessarily mean the
convenience of the petitioners alone who approached the court on
misconceived notions of apprehension. Convenience for the purposes
of transfer means the convenience of the prosecution, other
accused, the witnesses and the larger interest of the society.”
9. Similarly, in Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. State of
Punjab and Ors. (2009) 9 SCC 414, this Court held that the convenience of
the parties including the witnesses to be produced at the trial is a
relevant consideration while directing transfer of criminal case from one
Court situated in one State to another situated in another State.
10. In Mrs. Sesamma Phillip v. P. Phillip (1973) 1 SCC 405, which
happened to be a matrimonial case, a five-Judge Bench of this Court
transferred a criminal case on the ground of safety of the women-petitioner
from Delhi to Durg. So also in Captain Amarinder Singh v. Prakash Singh
Badal (2009) 6 SCC 260, this Court held that an impartial trial and
convenience of the parties & witnesses are relevant considerations for
deciding a transfer petition. In Jayendra Saraswathy Swamigal v. State of
Tamil Nadu (2005) 8 SCC 771, this Court transferred a case from Kanchipuram
to Pondicherry having regard to the convenience of the prosecuting agency
and the language in which almost all the witnesses had to depose before the
Trial Court.
11. In the light of the above decisions and the fact that CBI is fully
equipped with an office at Bombay and a Court handling CBI cases is
established at Thane also, we see no reason why the transfer of the case
would cause any hardship to the prosecution especially when searches which
have been relied upon by the prosecution have been conducted at Thane in
which the prosecution claims to have discovered a part of the assets
allegedly acquired by the petitioners. Reliance placed by Mr. Rawal upon
the decision of this Court in Bhiaru Ram and Ors. v. CBI (2010) 7 SCC 799,
is of no assistance to him. In Bhiaru Ram’s case (supra) the main accused
had not filed for transfer of the case and the number of witnesses cited
were not so large as in the present case nor were bulk of the witnesses
located in the State to which the case was sought to be transferred. This
Court also had noticed the serious apprehensions regarding the fairness of
the trial keeping in view the fact that the accused was an influential
person. So also the decision in Nahar Singh v. Union of India (2011) 1 SCC
307, relied upon by Mr. Rawal was dealing with a totally different fact
situation. The prayer for transfer in that case was not based so much on
the ground of convenience of the accused and the witnesses as it was on the
independence of the Court before whom the matter was pending. This Court
felt that transfer on that ground would be a reflection upon the
credibility of not only the entire judiciary but also the prosecuting
agency. That is not the position or the ground in the case at hand.
12. There is no gainsaying that a trial at Delhi in which witnesses are
expected to travel from Maharashtra is bound to linger on for years.
Expeditious disposal of the trial is also a facet of fairness of the trial
and speedy trial is infact a fundamental right as observed by this court in
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna (1980) 1
SCC 81. When witnesses from distant places are sought to be summoned, early
conclusion of the trial becomes so much more difficult apart from the fact
that the prosecution will have to bear additional burden by way of
travelling expenses of the official and non-official witnesses summoned to
appear before the Court.
13. In the result, we allow this petition and transfer Criminal Case
No.45 of 2008 entitled C.B.I v. Mrudul Milind Damle & Anr. pending in the
Court of Special Judge, CBI Cases, Rohini Courts, New Delhi to the Court of
Special Judge, CBI Cases, Court of Sessions at Thane, Maharashtra. The
record of the case shall be forthwith transferred to the transferee Court
which shall take up the matter and dispose of the same as expeditiously as
possible.
……………………….……..……J.
(T.S. THAKUR)
………………………….…..……J.
(GYAN SUDHA MISRA)
New Delhi
May 10, 2012
