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Wednesday, February 4, 2015

Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks - more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive...."

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 222   OF 2015
                 (Arising out of SLP (Crl.) No.881 of 2014)

Kanaklata                                          ...Appellant

Versus

State of (NCT) of Delhi & Ors.                     ...Respondents


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    This appeal arises out of an order dated 29th August, 2013  passed  by
a learned Single Judge of the High Court of Delhi  whereby  the  High  Court
has dismissed T.P. (Crl.) No.31 of  2013  filed  by  the  appellant  seeking
transfer of Sessions Case No.1006  of  2009  from  the  Court  where  it  is
presently pending to any other Sessions Court at Rohini or Tis Hazari.

3.     Sessions  Case  No.1006  of  2009  arises  out  of  FIR   No.156/2008
registered at P.S. Mukherjee Nagar for  commission  of  offences  punishable
under Sections 323/354 of the  IPC  and  Sections  3(i)  (X)  (XI)  (XV)  of
Scheduled Caste and Scheduled Tribe (Prevention of  Atrocities  Act),  1989.
Additional Sessions Judge, Rohini,  before  whom  the  matter  is  currently
pending, appears to have heard the parties on the  question  of  framing  of
charges and by an order  dated  22nd  March,  2010  discharged  the  accused
persons for the offences under the Scheduled  Castes  and  Scheduled  Tribes
(Prevention of Atrocities Act), 1989. The case was in that  view  made  over
to the illaqa Magistrate for consideration whether charges under the  Indian
Penal Code need to be framed in the case.

4.    The complainant questioned the discharge order  passed  by  the  trial
Court before the High Court in a revision petition which was allowed by  the
High Court by its order dated 10th December, 2012 with a  direction  to  the
trial Court to pass a fresh order on the  subject  after  hearing  both  the
parties.  It  was  at  this  stage,  that  the  complainant   expressed   an
apprehension about the fairness of the approach which the  trial  Court  may
adopt in view of the findings recorded in the  order  of  discharge  earlier
passed by her. The complainant  (appellant  herein)  expressed  these  fears
first in T.P. (Crl.) No.31 of 2013 filed before the Sessions  Judge,  Rohini
which was dismissed by the said court by order dated 22nd May, 2013  holding
that since no other officer  in  North  West  District  in  Delhi  has  been
notified for trial of cases under the Scheduled Caste  and  Scheduled  Tribe
(Prevention of Atrocities Act), 1989 the prayer for transfer in essence  was
tantamount to asking for a transfer  to  another  district  which  could  be
allowed only by the High Court. It  was  in  the  above  backdrop  that  the
complainant filed T.P. (Crl.) No.31 of 2013 before the  High  Court  seeking
transfer of the case to any other Court competent to try  the  same  outside
Rohini District. That application, as noticed above, has been  dismissed  by
the High Court in  terms  of  the  order  impugned  in  the  present  appeal
primarily on the ground that the order passed by the High Court has made  it
sufficiently clear that the observations made in the  order  passed  by  the
trial Court shall not influence any fresh order which  the  said  Court  may
pass pursuant to the remand made by the High Court. The High Court has  also
observed that the complainant (appellant herein) had while filing Crl.  R.P.
No.242 of 2010 against the discharge order  expressed  no  apprehension  nor
sought transfer of the case from the Court where it is pending to any  other
Court.

5.    We have heard learned counsel for the parties at some  length.  It  is
true that the trial Court had while discharging the  accused  persons  under
the Special  Act  mentioned  above,  made  certain  observations  about  the
alleged misuse of the provisions of the said Act  by  unscrupulous  elements
and also certain suggestions for remedying that situation. It is  also  true
that the trial Court had come to the conclusion that there is no real  basis
for it to frame any charge against the accused persons under the  said  Act.
But it is equally true that while setting aside that order and  directing  a
fresh order on the question of charge, the High Court has clearly  mentioned
that the trial Court shall remain uninfluenced by the  observation  made  in
its earlier order. That observation is, in the opinion of the High Court,  a
sufficient safeguard against any  possible  prejudice  to  the  complainant-
appellant herein making transfer of the case from the  Court  at  Rohini  to
any other Court unnecessary.  Now in the ordinary course if an order  passed
by the Court is set aside the observations  and  findings  recorded  therein
also get obliterated for all intents and  purposes.  So  also  if  the  High
Court  makes  the  position  clear  that  any  such  observation  shall  not
influence the Court concerned while making a fresh  order  the  same  should
ordinarily put the matter beyond the pale of any  controversy.  Having  said
that, there may still be situations where the  nature  of  the  observations
made by the court concerned create a reasonable apprehension in the mind  of
the litigant that the Court has so committed itself to a given  approach  or
thought process that it may not be possible for it to retrace its  steps  to
take a fair and non-partisan view in the matter. The present appears  to  be
one such case where despite the safeguards  provided  by  the  High  Court's
observations, the apprehension of the complainant continues to  subsist.  We
do not think that such apprehension is wholly misconceived  nor  can  it  be
dubbed as forum shopping in disguise. The earlier order passed by the  trial
Court is so strongly worded that it could in all likelihood give rise  to  a
reasonable apprehension in the mind  of  the  complainant  which  cannot  be
lightly brushed aside.  We must hasten to add that we are not in  the  least
suggesting that  the  Presiding  Officer  of  the  trial  Court  is  totally
incapable of adopting a fair approach while passing a fresh order  but  then
the question is not whether the Judge  is  biased  or  incapable  of  rising
above the earlier observations made by her.  The  question  is  whether  the
apprehension of the complainant is reasonable for us to direct  a  transfer.
Justice must not only be done but must seem to have been  done.   A  lurking
suspicion in the mind of the complainant will  leave  him  with  a  brooding
sense of having suffered injustice not because he had no case,  but  because
the Presiding Officer had a preconceived notion about it. On  that  test  we
consider the present to be a  case  where  the  High  Court  ought  to  have
directed a transfer.  In as much as it did not do so, we have no option  but
to interfere and direct transfer of the case to another Court.

6.    We are mindful of the fact that the transfer ordered by us  may  cause
inconvenience and harassment to the accused persons but  that  can,  in  our
opinion, be taken care of by directing  that  in  case  an  application  for
exemption from personal appearances is  filed,  the  Court  concerned  shall
consider the same and pass appropriate orders in accordance with law.

7.    In the result, we allow this appeal, set aside  the  order  passed  by
the High Court and direct that Sessions Case No.1006 of 2009 pending in  the
Court  of  Additional  District  and  Sessions  Judge,  Rohini  shall  stand
transferred from that Court to the Court of Sessions Judge, Tis Hazari,  who
shall try the same himself or make it over to any other Court duly  notified
and competent to do so. Record of the  case  shall  be  transmitted  to  the
transferee Court expeditiously.



                          ................................................J.
                                           (T.S. THAKUR)



                          ................................................J.
New Delhi,                           (ADARSH KUMAR GOEL)
February 4, 2015
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO.  222    OF 2015
                 (Arising out of S.L.P. (Crl.) No. 881/2014)


KANAKLATA                                          ..Appellant



                                   Versus



STATE (NCT) OF DELHI & ORS.             .. Respondents



                               J U D G M E N T



R. BANUMATHI, J.



            I have had the benefit of going through  the  judgment  proposed
by his  Lordship  Justice  T.S.  Thakur.   For  the  reasons  which  I  have
indicated below, I am unable to agree with the proposed final  decision  and
in my view, the present appeal is liable to be dismissed.

2.            The   appellant    seeks    transfer    of    Sessions    Case
No.1006/2009 arising out of FIR No.156/2008  registered  at  Police  Station
Mukherjee  Nagar,  Delhi.    As   per   the   allegations    made   by   the
complainant/appellant in  the  FIR  dated  4.5.2008,  they  have  been   the
tenants  under the accused persons and on 3.5.2008, accused/respondent  Nos.
2 to 10 obstructed  and abused them by uttering  objectionable  caste  based
remarks against  them.   On  the  basis  of  the  complaint  lodged  by  the
complainant, FIR was registered under Sections 323/341/354 and  34  IPC  and
Section  3(i) (x), (xi) and (xv) of Scheduled Castes  and  Scheduled  Tribes
(Prevention of Atrocities) Act,1989.   On the discharge  petition  filed  by
respondent Nos.2 to 10, learned Additional Sessions  Judge,  Rohini  Courts,
vide  Order  dated  22.3.2010  discharged  all   the   respondents.    Being
aggrieved, the complainant moved the High Court in revision  petition  being
Criminal Revision No. 242/2010 challenging the  order  of  discharge.   Vide
Order dated 10.12.2012, the High Court set  aside  order  of  discharge  and
remitted the matter   back to the trial court to consider the matter  afresh
being uninfluenced by the observations  made  in  the  earlier  order  dated
22.3.2010.  Thereafter, the complainant moved  a  transfer  petition  before
the District & Sessions Judge, Rohini Courts and also the High Court.   Both
the petitions were  dismissed  vide  Order  dated  22.5.2013  and  29.8.2013
respectively. Being aggrieved, the complainant has filed this appeal by  way
of special  leave,  seeking  transfer  of  the  Sessions  Case  No.1006/2009
expressing apprehension that in spite of the direction of  the  High  Court,
the trial court might proceed on a pre-conceived notion.

3.          We have heard the learned counsel  for  the  appellant  and  Ms.
Pinky Anand, learned Additional Solicitor General of  India  for  respondent
No.1 and Ms. Susmita Lal, learned counsel for respondent Nos. 2 to 10.

4.          An application for  transfer  of  a  case  pending  against  the
accused cannot be permitted merely because the learned  Sessions  Judge  had
made certain observations and recorded finding in the  earlier  order  dated
22.3.2010 while allowing the  discharge  petition.   The  said  order  dated
22.3.2010 was set aside by the High Court and the  matter  was  remanded  to
the Sessions Court to consider the matter afresh being uninfluenced  by  any
observation made in the earlier order.   When the  earlier  order  has  been
set aside by the High  Court  and  the  matter  was  remitted  back  to  the
Sessions Court for consideration of the matter afresh, apprehension  of  the
appellant that the learned trial judge may not  adopt  a  fair  approach  is
untenable.

5.          As rightly pointed out by  the  High  Court,  earlier  when  the
revision petition was allowed by the High Court and the matter was  remitted
back to the trial court, no apprehension  of  bias  was  expressed  nor  any
request was made for a transfer of the case from the Special Court  to  some
other court.  On behalf of the appellant, it is now contended  that  in  the
said revision petition, the appellant could not have asked for  transfer  of
the criminal case.   In  my  considered  view,  such  contention  cannot  be
countenanced.  Under Section  482  Cr.P.C.,  in  order  to  secure  ends  of
justice, the High Court  has  inherent  power  to  pass  appropriate  order.
Having accepted the order of remand to the trial court for consideration  of
the matter afresh, the appellant  is  not  justified  in  seeking  transfer.
The appellant has neither challenged the said order  of  remand  nor  raised
the apprehension that the trial court may not adopt a fair approach.

6.          It is pertinent to note that the case  has  been  registered  by
the complainant who  were  the  tenants  against  the  respondents-landlords
numbering as many as nine persons and the  matter  is  pending  trial  since
2009.  By filing transfer petition in 2013, the appellant  seems  to  appear
to be interested only in delaying the matter.

7.          In considering the transfer application, it is  to  be  kept  in
mind that whether a litigant could reasonably apprehend a bias  attributable
to a presiding Judge.  Transfer of a case from  one  court  to  another  has
serious  effects  on  the  Judge  from  whom  the  case  is  sought  to   be
transferred. Mere presumptions or possible assumptions  are  not  sufficient
for transfer of a case.  Only on good and sufficient grounds a transfer  can
be ordered.  In my considered view, the appellant has not made out any  good
and sufficient ground for transfer.

8.          It is also pertinent to note that any casual  observations  made
by a presiding officer of trial court would not be a sufficient  ground  for
transfer for the reason that the trial courts work in a  charged  atmosphere
and they do not have the benefit of a  detached  atmosphere  of  the  higher
courts so as to think cooly and decide patiently.   In this regard,  we  may
usefully refer to the decision of this Court in  K.P.  Tiwari  v.  State  of
M.P., 1994 (Supp. 1) SCC 540, in which this Court has observed as under:-

"...The higher courts every day come  across  orders  of  the  lower  courts
which are not justified either in law or in fact  and  modify  them  or  set
them aside. That is one of the functions of the superior courts.  Our  legal
system acknowledges the fallibility of the judges  and  hence  provides  for
appeals and revisions. A judge tries to discharge his duties to the best  of
his capacity. While doing so, sometimes, he is likely to  err.  It  is  well
said that a judge who has not committed an error is  yet  to  be  born.  And
that applies to judges at  all  levels  from  the  lowest  to  the  highest.
Sometimes, the difference in views of the higher and  the  lower  courts  is
purely a result  of  a  difference  in  approach  and  perception.  On  such
occasions, the lower courts are not necessarily wrong and the higher  courts
always right. It has also to be remembered that the lower judicial  officers
mostly  work  under  a  charged  atmosphere  and  are  constantly  under   a
psychological pressure with all the contestants  and  their  lawyers  almost
breathing down their necks - more correctly up to their  nostrils.  They  do
not have the benefit of a detached atmosphere of the higher courts to  think
coolly and decide patiently. Every error, however gross it may look,  should
not, therefore, be attributed to improper motive...."

9.          Appellant has not made out any sufficient  ground  for  transfer
and the request for transfer is  bereft  of  merits.   The  High  Court  has
rightly dismissed the transfer  petition  and  same  does  not  warrant  any
interference by this Court.   The appeal is dismissed.
                                 .........................................J.
                                                         (R. Banumathi)
New Delhi;
February 4, 2015

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