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"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
TRANSFER PETITION (CRL.) NO. 45 OF 2012
Rajesh Talwar .... Petitioner
Versus
Central Bureau of Investigation & Ors. .... Respondents
WITH
TRANSFER PETITION (CRL.) NO. 46 OF 2012
Nupur Talwar .... Petitioner
Versus
Central Bureau of Investigation & Ors. .... Respondents
ORDER
1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no. 45 of 2012
and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012.
These petitions have been filed under Section 406 of the Code of Criminal
Procedure, 1973, praying for the transfer of Special Case No. 01/2011
pending before the Court of the Special Judicial Magistrate (CBI)
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Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi.
Both these petitions are being disposed of by a common order, because
the prayers made are identical and are based on the same grounds,
arising out of the same factual background.
2. Before dealing with the grounds raised by the petitioners, it is
necessary to briefly record the sequence of events leading to the filing of
the instant transfer petitions. The prosecution under reference pertains to
the murder of Aarushi Talwar, daughter of the two petitioners, namely,
Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening
15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first
information report registered at police station, Sector 20, Noida, alleging
that their domestic help Hemraj had committed the murder of their
daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the
body of Hemraj was also found on the roof of the petitioners' residence.
Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was
arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was
produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On
27.5.2008, the Chief Judicial Magistrate, granted police custody of
Dr. Rajesh Talwar till 30.5.2008. Even though the matter was originally
investigated by the State Police, on 29.5.2008, investigation was
transferred to the Central Bureau of Investigation (hereinafter referred to
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as "the CBI"). The CBI then recorded a separate first information report.
On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.
3. Having concluded the investigation, the CBI filed an application
(purported to be an application under Section 169 of the Code of Criminal
Procedure), asserting lack of incriminating evidence against Dr. Rajesh
Talwar. In the application it was also asserted, that further judicial custody
of Dr. Rajesh Talwar was unnecessary. Accordingly, on 11.7.2008, the
Special Judicial Magistrate (CBI) Ghaziabad, ordered the release of Dr.
Rajesh Talwar, on bail.
4. On 29.12.2010, a closure report was submitted by the CBI before
the Special Judicial Magistrate (CBI) Ghaziabad. It was contended
therein, that sufficient evidence was not available to prove the guilt of Dr.
Rajesh Talwar, in the murder of his daughter Aarushi Talwar. Accordingly,
a prayer was made for the closure of the case due to insufficient evidence.
Since Dr. Rajesh Talwar was the author of the first information report dated
16.5.2008, notice of the aforesaid application came to be issued to him.
On 25.1.2011, Dr. Rajesh Talwar filed a detailed protest petition. By an
order dated 9.2.2011, the Special Judicial Magistrate (CBI) Ghaziabad,
rejected the prayer made by the CBI for closure of the case due to
insufficient evidence. Simultaneously, the Magistrate summoned
Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face trial under Section
302 read with Section 34 and Section 201 read with Section 34 of the
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Indian Penal Code. The summoning order dated 9.2.2011 was assailed by
the petitioners by filing Criminal Revision no. 1127 of 2011 before the High
Court of Judicature at Allahabad. The aforesaid challenge made under
Section 482 of the Code of Criminal Procedure, was rejected by the High
Court on 18.3.2011. Dr. Rajesh Talwar assailed the order passed by the
High Court by filing Special Leave Petition (Crl.) No. 2981 of 2011,
whereas, the said order was assailed by Dr. Mrs. Nupur Talwar by filing
Special Leave Petition (Crl.) No. 2982 of 2011. The challenge raised by
the petitioners was declined by this Court vide an order dated 6.1.2012 (in
Special Leave Petition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur
Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of
2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated
9.1.2012 is being extracted hereinbelow:-
"We have heard learned counsel for the parties. It appears that
pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68
of 2012 titled "Dr. Mrs. Nupur Talwar versus C.B.I. Delhi & Anr.",
whereby this Hon'ble Court upheld the order dated 9.2.2011 of the
Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01
of 2011 whereby cognizance was taken, the petitioner herein would
appear before the Special Judicial Magistrate (CBI), Ghaziabad on
4.2.2012 which, we understand, is the date fixed for hearing.
It is also not in dispute that the petitioner Dr. Rajesh Talwar is
on bail since 2008 virtually by an order dated 11th July, 2008 and he
also furnished bail bond pursuant to that order. In that view of the
matter, we direct the petitioner - Dr. Rajesh Talwar to remain on
bail. It is understood that the petitioner has already deposited his
passport and the same is lying with the Court of the learned
Magistrate. In the meantime, the petitioner shall not leave the local
Police Station without obtaining the permission of the learned
Magistrate.
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With this order, the present Special Leave Petition is disposed
of. We make it clear that this order will not prevent either of the
parties from moving such application as they are entitled to in
accordance with law."
5. The instant two transfer petitions seeking transfer of the proceedings
in Special Case No. 01/2011 from the Court of Special Judicial Magistrate
(CBI) Ghaziabad, to a Court of competent jurisdiction at Delhi/New Delhi,
have been separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur
Talwar, primarily on the grounds of convenience and personal security.
During the course of hearing, learned counsel for the petitioners raised the
following contentions on the issue of convenience:-
(i) It was submitted, that after the murder of Aarushi Talwar on
the night intervening 15.5.2008 and 16.5.2008, for the
petitioners to reside in the same premises where the murder
of their daughter had been committed, had become
impossible. Consequently, they had shifted their residence
from Noida to New Delhi. As such, it was submitted that it
would be more convenient for the petitioners to face trial in
Delhi/New Delhi rather than at Ghaziabad.
(ii) Ghaziabad, it was pointed out, was farther away from Noida
(where the murder was committed) than New Delhi. In this
behalf, it was submitted, that distance between Noida and
Ghaziabad is 35 kms., whereas, the distance between Noida
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and New Delhi is only 17 kms. Based on the traffic situation
between Delhi and Ghaziabad, it was submitted, that the
petitioners would have to undertake several hours of travel
time to attend Court proceedings on each date of hearing.
This inconvenience could be avoided if the proceedings in
question were transferred from Ghaziabad to Delhi/New Delhi.
(iii) It was pointed out, that since the first information report was
lodged by the CBI at New Delhi itself, there would be no
difficulty in proceeding with the case at Delhi itself.
(iv) It was also contended, that holding trial before a Court of
competent jurisdiction at Delhi/New Delhi would also be a
matter of convenience to the prosecuting agency, inasmuch
as, the counsel, as also the officials/officers of the CBI were
Delhi/New Delhi based, and they too would not have to travel
to Ghaziabad on each date of hearing.
(v) Lastly, it was asserted, that a large number of witnesses
would also have to be summoned from outside U.P. It was
also pointed out, that these witnesses would have to
unnecessarily travel to Ghaziabad. Just like the petitioners, all
outside witnesses would likewise face avoidable
inconvenience, if the prayer made in the instant petition is
accepted.
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6. On the issue of personal security, learned counsel for the petitioners
contended, that when the petitioners had gone to attend court proceedings
at Ghaziabad on 25.1.2011, and whilst they were physically inside the
court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious
attack at the hands of one Utsav Sharma, with a cleaver knife. It was
submitted, that Dr. Rajesh Talwar suffered grievous injuries and was
rushed to undergo several reconstructive surgeries in the intensive care
unit of the Indraprastha Apollo Hospital, New Delhi. While explaining the
assault, it was pointed out, that Dr. Rajesh Talwar was given three blows
with the meat cleaver causing a grevious injury on the right side of his
forehead, which also resulted in the rupture of a major artery, and also,
serious injuries on both of his hands. It was also alleged, that Dr. Rajesh
Talwar was rendered handicapped as a result of the injuries inflicted upon
him by Utsav Sharma, for more than two months. It was pointed out, that a
first information report was registered by Dr. Dinesh Talwar (brother of Dr.
Rajesh Talwar) at police station Kavi Nagar, Ghaziabad on 25.1.2011, in
connection with the aforesaid assault. The aforesaid encounter within the
court premises, according to learned counsel for the petitioners, has
completely shaken the confidence of the petitioners. The petitioners are
stated to be under deep fear of attending court-proceedings at Ghaziabad
after the said assault. Relying on the judgment rendered by this Court in
Maneka Sanjay Gandhi Vs. Rani Jethmalani, (1979) 4 SCC 167, it was
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asserted, that this Court had authoritatively held, that the safety of the
person of an accused (as also, the complainant) is an essential condition
for participation in a criminal trial. Where safety itself is put in peril by
commotion, tumult or threat on account of pathological conditions
prevalent in a particular venue, it was submitted, a request as the one in
the instant case, for transfer of proceedings should be acceded to. Insofar
as the present case is concerned, it was submitted on behalf of the
petitioners, that the circumstances in the present case have gone far
beyond the possibility of a physical assault, inasmuch as, a brutal physical
attack has actually been made on Dr. Rajesh Talwar (on 25.1.2011).
Relying on the judgment rendered by this Court in Zahira Habibulla H.
Sheikh Vs. State of Gujarat, (2004) 4 SCC 158, it was contended, that
justice should not only be done but it should be seen to be done. It was
pointed out, that where circumstances are such that render holding of a fair
and impartial trial, uninfluenced by extraneous considerations impossible,
an apprehension expressed by an individual seeking transfer, should be
accepted as reasonable. Inviting the Court's attention to the incident of
25.1.2011, it was submitted, that there could be no doubt, that in the
circumstances prevalent in the courts at Ghaziabad, the apprehension
expressed by the petitioners, that they are unlikely to be subjected to a fair
and impartial trial, uninfluenced by extraneous considerations, is not
unreal. Relying on the judgment rendered by this Court in Central Bureau
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of Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC 115, it was
submitted, that in a case wherein the CBI itself felt that there was a real
danger of the accused being physically attacked during the course of the
trial, this Court came to be approached (by the CBI) for transfer of the
venue of prosecution. The prayer made by the CBI was acceded to by this
Court by observing, that there could be no quarrel, that there was a real
possibility of a physical attack on the respondent-accused so long as he
was at Manipur. Yet again, it is emphasized by the learned counsel
appearing on behalf of the petitioners, that the present case stands on a
far better footing, inasmuch as, a factual assault resulting in serious
injuries has actually been suffered by Dr. Rajesh Talwar within the court
premises at Ghaziabad. It is, therefore, contended, that the fear in the
minds of the petitioners, is not imaginary. The fear in the minds of the
petitioners, is very real and bonafide. In order to support the prayer of the
petitioners on the facts delineated hereinabove, learned counsel for the
petitioners placed reliance on the judgment rendered by this Court in Ravir
Godbole Vs. State of M.P., (2006) 9 SCC 786. The order relied upon by
the petitioners is being extracted hereinbelow:-
"1. We have heard counsel for the parties.
2. The petitioner is being tried of an offence punishable under
Section 307 IPC. The trial was to take place at Indore but, in
view of the fact that the rival gang has been after his blood
and two attempts were made on his life, the High Court
transferred his trial to Bhopal. It appears that even during the
trial at Bhopal he was attacked a third time and serious
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injuries were caused to him which necessitated his being
admitted to the hospital and an operation being performed to
repair his damaged liver.
3. In these circumstances, the petitioner has prayed that his case
may be transferred to any court outside the State of M.P.
Counsel for the State does not dispute the fact that the
petitioner has been attacked thrice during this period and he
does face danger to his life. Of course, the State contends
that it will provide him with protection such as is considered
necessary. We notice that a gunman was deputed to provide
security to the petitioner but despite that he was attacked a
third time causing him serious injuries, and the gunman
deputed to protect him could do nothing except to make
himself scarce.
4. In these facts and circumstances, we transfer Sessions Trial
No. 65 of 2004 pending before the Special Court (Atrocities),
Bhopal Sessions Court, Bhopal to the Court of the District and
Sessions Judge, Nasik who may try the case himself or assign
the trial to a court of competent jurisdiction. The record of the
case shall be immediately transmitted by the Bhopal Sessions
Court to the Court of the District and Sessions Judge, Nasik.
5. This transfer petition is allowed."
(emphasis is ours)
7. It would be relevant to notice, that in the pleadings of the two
transfer petitions, the petitioners have raised a third ground (besides those
of convenience and personal security, referred to in the foregoing
paragraphs). No submissions were addressed in connection therewith
during the course of hearing. Reference to the third ground has been
made in this order only because it was pointed out by the learned counsel
representing the CBI, that the petitioners had alleged, that they were not
likely to get justice, as it appeared to them, that the Ghaziabad court was
proceeding with the matter with a pre-determined mind. The cause of the
petitioners instant impression (as per the pleadings), emerges from an
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application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of
the Code of Criminal Procedure. In the aforesaid application, Dr. Rajesh
Talwar had sought exemption from personal appearance, on the ground
that he had suffered a physical assault in the court premises on 25.1.2011,
and had been advised bed rest. The Special Judicial Magistrate (CBI)
Ghaziabad, had rejected the application for exemption, and issued bailable
warrants against Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is
concerned, she too had sought exemption from personal appearance on
the ground, that she had to file an affidavit at Allahabad in a criminal
revision petition, to assail the summoning order dated 9.2.2011(refer to
paragraph 4 above). It is submitted, that the application filed by Dr. Mrs.
Nupur Talwar was also declined. In the order dated 28.2.2011 the Special
Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants
against the petitioners. From the aforesaid determination, it was sought to
be inferred, that the petitioners were not likely to get justice, as the
Ghaziabad Court was proceeding with the matter with a pre-determined
mind.
8. During the course of hearing, another ground was also canvassed
on behalf of the petitioners, although no mention thereof had been made in
the pleadings of the two transfer petitions. During the course of hearing,
our attention was invited by the learned counsel appearing on behalf of the
petitioners, to an affidavit dated 24.2.2012 filed by Shri Praveen Kumar
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Rai, Advocate. The said Shri Praveen Kumar Rai, in his affidavit, interalia
deposed, that on 25.1.2011, the Special Judicial Magistrate (CBI)
Ghaziabad, had noticed the sensitivity of the case and had, by invoking the
court's inherent power under Section 327 of the Code of Criminal
Procedure, directed, that no person would be allowed to enter the court-
room except the parties to the case or their respective counsel; yet during
the course of hearing on 4.2.2012, a lot of media-persons and advocates
unrelated to the case, were present inside the court-room. While dilating
on the court proceedings conducted on 4.2.2012, without disclosing the
identity of any particular counsel/advocate, it was averred in paragraphs 5
and 6 (of the affidavit dated 24.2.2012) as under:-
"5. That one of the advocates, who on earlier occasion has been
rebuked by the Ld. Magistrate and certain strictures have also
been passed against him as well, was also present in the
Court room. It is pertinent to mention here that on 7.1.2011
the said counsel had filed an application and thereafter during
the course of arguments on the said application misbehaved
with the Court and others therein. The Ld. Magistrate in her
order dated 21.1.2011 while dismissing the application
disapproved the behaviour of the counsel and passed
strictures after warning him for future. However, the said
warning and strictures have not affected him at all. He not
only interfered in the case, but also attempted to stop the
counsels for the petitioner herein from advancing their
submissions. The deponent immediately brought this to the
notice of the Ld. Magistrate but to no avail and the
interruptions continued in the proceedings. It is germane to
state that the concerned advocate does not represent either
the prosecution or the accused persons and thus, no privilege
of hearing can be extended to the concerned advocate. A true
translated copy of the order dated 21.1.2011 is annexed
herewith and marked as Annexure A-2.
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6. That faced with such a perilous situation the counsels did not
have any option but to file an application before the Ld.
Magistrate for taking appropriate actions and passing
necessary directions in the matter. The said application is still
pending. A photocopy of certified copy of the said application
dated 4.2.2012 is annexed herewith and marked as Annexure
A-3."
It is also necessary to extract hereunder the application dated 4.2.2012
(appended as Annexure A-3 to the affidavit dated 24.2.2012) of Shri
Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar:-
"Sir,
It is most respectfully submitted that in the above noted case
the applicants counsels appear before the Hon'ble Court today
to move application in the light of order passed by Hon'ble
Supreme Court in Transfer Petition. The counsel for
applicants were restrained by some other Advocates who
have no concern with the case during the course of their
submission. This happened even when, the order passed by
Hon'ble Court dated 25.1.2011 U/s 327 Cr.P.C. is still in force.
It is, therefore, most humbly prayed that in the above
said reason and in the interest of justice Hon'ble Court may
kindly restrained the persons and advocates who have no
concerned in the case by entering in the Court room during
the hearing of the case."
Based on the aforesaid factual position it is contended that the petitioners
have strong reservations whether unimpaired proceedings are at all
possible in the case in hand. It is therefore contended, that it would be in
the fitness of the matter, to transfer proceedings in the case, from
Ghaziabad to Delhi/New Delhi
9. We have recorded hereinabove the four different grounds under
which the petitioners have sought to press their claim for transfer of the
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proceedings pending before the court of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P., to a court of competent jurisdiction at Delhi/New
Delhi. It would be appropriate and in the fitness of matters to first record
the response of the learned Senior Counsel representing the CBI to each
of the issues. The submissions of the learned counsel representing the
respondents are therefore being summarized hereinafter:-
10. As noticed in paragraph 5 hereinabove, the foremost contention
seeking transfer of proceedings from Ghaziabad to Delhi/New Delhi is
based on the inconvenience of the petitioners to travel from New Delhi to
Ghaziabad on each date of hearing. In so far as the instant aspect of the
matter is concerned, it was the contention of the learned counsel for the
respondents, that shifting of the residence of an accused cannot be a valid
justification for seeking transfer, nor is the place where the first information
report was registered by the CBI relevant for the said purpose. It is
submitted that the identity of the jurisdictional court is determined on the
basis of the provisions of the Code of Criminal Procedure, wherein
residence of the accused and the place of registration of the first
information report are inconsequential. In so far as the inconvenience
alleged by the petitioners to travel to Ghaziabad is concerned, it was
brought to our notice that 72 of the witness likely to be produced during the
course of the prosecution under reference, are located in the State of Uttar
Pradesh, whereas, 61 witnesses are from Delhi or from outside U.P. Of
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the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees
of the Central Forensic Science Laboratory or the All India Institute of
Medical Sciences, New Delhi; 6 witnesses are from telephone companies,
20 witnesses have been examined earlier out of which some are relations
of the petitioners themselves; and of the remaining two witnesses one is
from Punjab and the other is from Haryana. It is also submitted, that none
of the 61 witnesses, to be produced from Delhi or from outside U.P., have
expressed inconvenience to depose before the Special Judicial Magistrate
(CBI), Ghaziabad, U.P. It is contended, that the distance between Noida
and Ghaziabad, as also, between Noida and Delhi depicted in the
submissions advanced by the learned counsel for the petitioners are
irrelevant. It is submitted, that the issue of jurisdiction is never determined
on the basis of distance(s), but is based on the territorial jurisdiction of the
court within which an offence has been committed. It is submitted that Dr.
Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending court
proceedings at Ghaziabad since 2008, i.e., for the last about three years.
It is pointed out, that neither of the petitioners ever expressed
inconvenience to participate in the court proceedings at Ghaziabad hitherto
before. However, all these pleas are being raised only after the Special
Judicial Magistrate (CBI), Ghaziabad, U.P., by his/her order dated
9.2.2011 had summoned the petitioners to face trial under Section 302
read with Section 34 of the Indian Penal Code, and Section 201 read with
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Section 34 of the Indian Penal Code, in connection with the murder of
Arushi Talwar. It is accordingly submitted that the plea raised by the
petitioners for transfer of proceedings on the basis of inconvenience, is
wholly trumped up and ought to be rejected.
11. In so far as the second issue canvassed at the hands of the
petitioners on the ground of personal security is concerned (see paragraph
6 hereinabove), learned Senior Counsel representing the respondents
invited our attention to the counter affidavit filed on behalf of the
respondent-CBI, wherein, while repudiating the contention advanced at the
hands of the petitioners, it has been pointed out that the attack on Dr.
Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011 was at the
hands of a psychologically disturbed person hailing from Varanasi, who
had come to Ghaziabad from Ahmedabad (in Gujarat). It is therefore the
contention of the learned counsel for the respondents, that the attack was
not aimed at interfering with the petitioners right to defend themselves, but
because of mental imbalance of the attacker. It is submitted, that the
same person Utsav Sharma had also attacked DGP Rathore in a court-
premises at Chandigarh, prior to having attacked Dr. Rajesh Talwar. It is
therefore contended, that the physical attack on Dr. Rajesh Talwar was
certainly not aimed at disrupting court-proceedings or interfering with the
defence of the petitioners. As such, it is submitted that the aforesaid stray
incident cannot be a justifiable basis for seeking transfer of proceedings
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under Section 406 Cr.P.C. from the court of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P. to some other court of competent jurisdiction in
Delhi/New Delhi. Learned counsel representing the respondents also
pointed out, from the counter affidavit filed by the CBI, that the Sessions
Judge, Ghaziabad had personally reviewed the security arrangements in
the entire court-premises at Ghaziabad, whereupon, security/police
personnel have been deployed to prevent any similar untoward incident in
future. It was also brought to our notice, from the counter affidavit filed by
the CBI, that the venue of the proceedings relating to the petitioners, has
been shifted to a new building, which has a proper boundary wall on all
sides, with only one small entrance. The counter affidavit also records an
assurance, that as and when the case of the petitioners will be fixed for
hearing, proper police force will be deployed by the local administration, to
ensure safety and security of the petitioners. It is therefore the contention
of the learned Senior Counsel representing the CBI, duly supported by the
learned counsel for the State of Uttar Pradesh, that all possible care will be
taken, for the safety and welfare of the petitioners.
12. Even though learned counsel representing the petitioners did not
canvass the third ground (see paragraph 7 hereinabove) during the course
of hearing, yet learned counsel for the respondents had expressly drawn
our attention to the same. The purpose of inviting our attention to the third
ground was to demonstrate, that the petitioners have not even spared the
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presiding officer of the court. The petitioners have cast aspersions on the
court itself. It has been averred in the pleadings, that the petitioners are
not likely to get justice from the Ghaziabad court, because the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. by his/her order dated
28.2.2011 had declined the prayer made by the petitioners for exempting
them from personal appearance, and since the petitioners had not
appeared on 28.2.2011, the court had issued bailable warrants against the
petitioners. This, according to the learned Senior Counsel representing
the respondents, can never constitute a valid basis for drawing any
inference against a court, specially when the challenge raised by the
petitioners in assailing the order dated 28.2.2011 (declining exemption
from personal appearance, and ordering issuance of bailable warrants),
before the High Court of Judicature at Allahabad was rejected. In fact, it is
the contention of the learned Senior Counsel for the respondents, that the
insinuation levelled on behalf of the petitioners is contemptuous in nature,
and calls for initiation of proceedings against the petitioners under the
Contempt of Courts Act, 1971. Based on all the submissions recorded
hereinabove, it was the contention of the learned counsel for the
respondents, that even the third ground raised by the petitioners for
seeking transfer of proceedings under Section 406 of the Code of Criminal
Procedure, cannot be accepted.
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13. In so far as the last contention is concerned (see paragraph 8
hereinabove), the same was based on the affidavit of Shri Praveen Kumar
Rai, Advocate, dated 24.2.2012. It was submitted at the hands of the
learned counsel for the respondents, that there was no occasion for the
respondents to repudiate the same, as the factual position depicted therein
does not emerge from the pleadings of the transfer petitions filed by the
two petitioners. It is therefore the contention of the learned counsel for the
respondents, that the petitioners should not be permitted to press the
instant ground for seeking transfer. Be that as it may, it is further the
contention of the learned Senior Counsel representing the respondents,
that the allegations contained in the affidavit dated 24.2.2012 are vague,
as the identity of the counsel who attempted to stop the counsel
representing the petitioners from advancing their submission, has not been
disclosed. In the application allegedly filed on 4.2.2012 (appended as
Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the
counsel who restrained the counsel representing the petitioners, from
making his submissions has also not been disclosed. Accordingly, it is
asserted that the allegations made in the last submission being vague
cannot be relied upon to accept the prayer of the petitioners for transfer of
proceedings under Section 406 of the Code of Criminal Procedure.
14. We have noticed hereinabove the grounds of challenge canvassed
at the hands of the learned counsel for the petitioners, as also, the
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response thereto at the hands of the learned counsel representing the
respondents. In so far as the issue of transfer of criminal proceedings from
one court to another under Section 406 of the Code of Criminal Procedure
is concerned, it would be in the fitness of matters to examine the
parameters laid down by this Court for transfer of proceedings. In this
behalf reference may, first of all, be made to the decision rendered in Sri
Jayendra Saraswathy Swamigal (II), Tamil Nadu v. State of Tamil Nadu,
(2005) 8 SCC 771, wherein in paragraph 5, this court recorded the
grounds on which transfer was sought and thereafter, recorded its own
determination in paragraph 23. Accordingly, paragraphs 5 and 23 of the
judgment are being extracted hereunder:
"5. The transfer of the case has been sought on several grounds and
basically speaking they are as under:
(i) The State machinery in Tamil Nadu and specially the Special
Investigation Team headed by Shri Prem Kumar, Superintendent of
Police, has shown great zeal and has made extraordinary efforts,
much beyond what is required under the law to anyhow secure the
conviction of the accused and to achieve that object has procured
and fabricated false evidence.
(ii) The Chief Minister of the State of Tamil Nadu, who is also holding
the Home portfolio, has made statements on the floor of the House
that the petitioner and the other co-accused are actually involved in
the murder of Sankararaman and has also given some press
statements and has thereby pre-empted a fair decision in the
criminal trial, as statements of persons holding such high offices and
specially those made on the floor of the House, are generally
believed to be correct and thus the accused stand condemned even
before the commencement of the trial.
(iii) A solatium of Rs 5 lakhs was paid by the Chief Minister of Tamil
Nadu to Padma Sankararaman (widow of deceased Sankararaman)
on 24-11-2004, long before completion of investigation and
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submission of charge-sheet, and this was given wide publicity in the
electronic media and newspapers, etc., which shows that the State
Government is taking special interest in the case and is too keen to
secure conviction of the accused in order to justify the stand taken
by it.
(iv) Concocted and false cases have been registered against 16 co-
accused. Even before their bail applications in the present case
could be heard, detention orders were passed against them under
the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Slum Grabbers and Video Pirates Act, 1982 (for short
"the Goondas Act") between 16-1-2005 and 6-2-2005 so that even
after grant of bail by the Court they may remain in custody.
(v) The advocates appearing for the petitioner and other co-accused
have been put under great threat on account of lodging of false and
fabricated criminal cases against them and a situation has been
created wherein they may not be in a position to defend the accused
properly. This will also have a general effect as other lawyers would
feel hesitant to conduct the case on behalf of the accused.
(vi) The Mutt and other associated and connected trusts have 183
accounts in banks, which were all frozen by SIT resulting in
paralysing the religious and other activities of the Mutt and other
connected bodies.
(vii) Criminal cases have been lodged against some leading
journalists of the country and other prominent personalities, who had
written articles criticising the arrest of the petitioner, which not only
violates right of free speech but also creates an atmosphere of
threat against anyone daring to speak or write in favour of the
accused and thus the accused seriously apprehend that they would
not get a fair trial in the State of Tamil Nadu.
(viii) Shri Prem Kumar, who is heading the Special Investigation
Team, is not a fair and upright officer and superior courts have
passed strictures against him several times in the past for his
uncalled-for actions in going out of the way to implicate innocent
persons in criminal cases.
23. We have discussed above many facets of the case which do
show that the State machinery in Tamil Nadu is not only taking an
undue interest but is going to any extent in securing the conviction of
the accused by any means and to stifle even publication of any
article or expression of dissent in the media or press, interview by
journalists or persons who have held high positions in public life and
22
are wholly unconnected with the criminal case. The affidavits and
the documents placed on record conclusively establish that a
serious attempt has been made by the State machinery to launch
criminal prosecution against lawyers, who may be even remotely
connected with the defence of the accused. The Superintendent of
Police, SIT and the Police Inspector connected with the investigation
even went to the extent of prompting the approver Ravi
Subramaniam to make insinuation against a very Senior Counsel,
who has been practising for over 43 years and is appearing as
counsel for the petitioner. The other counsel had to file writ petitions
in the Madras High Court for seeking a direction for transferring
investigation of the criminal cases registered against them from the
local police to CBI. The police submitted charge-sheet against two
junior lady lawyers under various sections of IPC including Section
201 IPC when even accepting every word in the FIR lodged by Smt
Chitra, wife of Ravi Subramaniam (approver) as correct, no offence
under the said provision is made out. Clause (1) of Article 22, which
finds place in Part III of the Constitution dealing with fundamental
rights, gives a guarantee to a person arrested and detained to be
defended by a legal practitioner of his choice. Section 303 of the
Code of Criminal Procedure says that any person accused of an
offence before a criminal court or against whom proceedings are
instituted under the Code, may of right be defended by a pleader of
his choice. Even under the British rule when the Code of Criminal
Procedure, 1898 was enacted, Section 340(1) thereof gave a similar
right to an accused. It is elementary that if a lawyer whom the
accused has engaged for his defence is put under a threat of
criminal prosecution, he can hardly discharge his professional duty
of defending his client in a fearless manner. A senior and respected
counsel is bound to get unnerved if an insinuation is made against
him in court that he approached the wife of a witness for not giving
evidence against the accused in the court. From the material placed
before us we are prima facie satisfied that a situation has arisen in
the present case wherein the lawyers engaged by the petitioner and
other co-accused cannot perform their professional duty in a proper
and dignified manner on account of various hurdles created by the
State machinery. The lawyers would be more concerned with
shielding their own reputation or their liberty rather than cross-
examining the prosecution witnesses for eliciting the truth. The
constant fear of not causing any annoyance to the prosecution
witnesses specially those of the Police Department would loom large
over their mind vitally affecting the defence of the accused. Passing
of the detention order against 16 co-accused soon after grant of bail
23
to the petitioner by this Court on 10-1-2005, which order could be of
some support in seeking parity or otherwise for securing bail in the
present murder case, is a clear pointer to the fact that the State
wanted to deprive them of any chance to secure release from
custody. Even though this Court has issued notice on the special
leave petition filed by the State against the order of the High Court
by which habeas corpus petition of the 16 co-accused was allowed,
yet the observations made in the said order show in unmistakable
terms that the even tempo of life was not disturbed, nor was public
order affected by the murder of Sankararaman and the detention
order was passed without any basis. Again, the action of the State in
directing the banks to freeze all the 183 accounts of the Mutt in the
purported exercise of the power conferred under Section 102 CrPC,
which had affected the entire activities of the Mutt and other
associated trusts and endowments only on the ground that the
petitioner, who is the head of the Mutt, has been charge-sheeted for
entering into a conspiracy to murder Sankararaman, leads to an
inference that the State machinery is not only interested in securing
conviction of the petitioner and the other co-accused but also to
bring to a complete halt the entire religious and other activities of the
various trusts and endowments and the performance of pooja and
other rituals in the temples and religious places in accordance with
the custom and traditions and thereby create a fear psychosis in the
minds of the people. This may deter anyone from appearing in court
and give evidence in defence of the accused. Launching of
prosecution against prominent persons who have held high political
offices and prominent journalists merely because they expressed
some dissent against the arrest of the petitioner shows the attitude
of the State that it cannot tolerate any kind of dissent, which is the
most cherished right in a democracy guaranteed by Article 19 of the
Constitution." (emphasis is ours)
Reference may also be made to the decision rendered by this Court in
Central Bureau of Investigation (CBI) v. Hopeson Ningshen, (2010) 5 SCC
115, wherein this Court recorded its conclusion in the following
paragraphs:
"18. CBI in its capacity as the investigating agency has clearly
conveyed the risks associated with conducting the trial in Manipur.
24
Even if one were to concede that the apprehension about social unrest
and communal tension between the Meteies and the Nagas were a little
exaggerated, there can be no quarrel that there exists a real possibility
of a physical attack on the respondent-accused as long as he is in
Manipur. It was precisely because of this consideration that the
respondent-accused is being held in custody at a distant location in
Delhi. Furthermore, conducting the trial in Manipur could also
reasonably lead to more friction in the State of Manipur which in turn
could affect the trial proceedings themselves.
19. We must especially take note of the fact that the killings took place
in a region where opinions are sharply divided on the justness of the
causes espoused by NSCN(IM) and that the respondent-accused is a
member of the same organisation. This creates a risk of intimidation of
the witnesses as well as undue prejudice seeping into the minds of
those who may be involved in the legal proceedings in different
capacities.
20. In this scenario, in our considered view it would be expedient in the
ends of justice to conduct the trial in Delhi. We accordingly direct that
the impugned cases be transferred from the Court of the Chief Judicial
Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a
judicial officer of the rank of a Sessions Judge) in New Delhi."
(emphasis is ours)
The scope of jurisdiction under Section 406 of the Code of Criminal
Procedure was also considered by this Court in Surendra Pratap Singh v.
State of Uttar Pradesh, (2010) 9 SCC 475, wherein this Court held as
under:
14. Mr Gupta submitted that except for wild allegations made against
the investigating authorities and the officials of the State Government,
nothing substantial has been disclosed from the submissions made on
behalf of the petitioner which would indicate that either the investigating
agencies or the prosecuting agency was in any way biased in favour of
Respondent 2. On the other hand, upon a fair investigation undertaken
by two separate agencies, which included CB CID, it had been found
that Respondent 2 was not in any way connected with the alleged
incident of 24-6-2005. In fact, at the relevant time, the party to which he
25
belonged was not in power which would enable him to influence the
course of investigation. Mr. Gupta submitted that no interference was
called for with the investigation reports submitted both by the local
police as also by CB CID, and the transfer petition was, therefore, liable
to be dismissed.
15. We have carefully considered the submissions made on behalf of
the respective parties. While the arrest of Respondent 2 may have been
stayed by the High Court, the circumstances in which the incident had
occurred on 24-6-2005 coupled with the fact that Respondent 2 was
returned as an MLA in the same elections, does to some extent justify
the apprehension of the petitioner that the perspective of the
prosecution may become polluted. There is no getting away from the
fact that Respondent 2 is an MLA and that too belonging to the present
dispensation. Since justice must not only be done but must also seem
to be done, this case, in our view, is an example where the said
idiomatic expression is relevant.
16. It would not be proper on our part to dilate on this question further
during the pendency of the trial. We are, however, of the view that in
order to do fair justice to all the parties, the trial should be held outside
the State of Uttar Pradesh and, accordingly, we allow the transfer
petition and direct that the matter be transferred to the High Court of
Madhya Pradesh which shall decide the place and the court before
which the trial may be conducted." (emphasis is ours)
The issue in hand was also examined by this Court in Nahar Singh Yadav
v. Union of India, (2011) 1 SCC 307. Relevant extract including the
parameters delineated by this Court which ought to be kept in mind while
considering an application for transfer and the consideration of the factual
matrix involved in the controversy dealt with are being extracted
hereunder:
"21. Reverting to the main issue, a true and fair trial is sine qua non
of Article 21 of the Constitution, which declares that:
26
"21. Protection of life and personal liberty.--No person shall be
deprived of his `life' or `personal liberty' except according to
procedure established by law."
It needs no emphasis that a criminal trial, which may result in
depriving a person of not only his personal liberty but also his life
has to be unbiased, and without any prejudice for or against the
accused. An impartial and uninfluenced trial is the fundamental
requirement of a fair trial, the first and the foremost imperative of the
criminal justice delivery system. If a criminal trial is not free and fair,
the criminal justice system would undoubtedly be at stake, eroding
the confidence of a common man in the system, which would not
augur well for the society at large. Therefore, as and when it is
shown that the public confidence in the fairness of a particular trial is
likely to be seriously undermined, for any reason whatsoever,
Section 406 CrPC empowers this Court to transfer any case or
appeal from one High Court to another High Court or from one
criminal court subordinate to one High Court to another criminal
court of equal or superior jurisdiction subordinate to another High
Court, to meet the ends of justice.
22. It is, however, the trite law that power under Section 406 CrPC
has to be construed strictly and is to be exercised sparingly and with
great circumspection. It needs little emphasis that a prayer for
transfer should be allowed only when there is a well-substantiated
apprehension that justice will not be dispensed impartially,
objectively and without any bias. In the absence of any material
demonstrating such apprehension, this Court will not entertain
application for transfer of a trial, as any transfer of trial from one
State to another implicitly reflects upon the credibility of not only the
entire State judiciary but also the prosecuting agency, which would
include the Public Prosecutors as well.
XXX XXX XXX XXX
29. Thus, although no rigid and inflexible rule or test could be laid
down to decide whether or not power under Section 406 CrPC
should be exercised, it is manifest from a bare reading of sub-
sections (2) and (3) of the said section and on an analysis of the
decisions of this Court that an order of transfer of trial is not to be
passed as a matter of routine or merely because an interested party
has expressed some apprehension about the proper conduct of a
trial. This power has to be exercised cautiously and in exceptional
27
situations, where it becomes necessary to do so to provide credibility
to the trial. Some of the broad factors which could be kept in mind
while considering an application for transfer of the trial are:
(i) when it appears that the State machinery or prosecution is
acting hand in glove with the accused, and there is likelihood of
miscarriage of justice due to the lackadaisical attitude of the
prosecution;
(ii) when there is material to show that the accused may
influence the prosecution witnesses or cause physical harm to
the complainant;
(iii) comparative inconvenience and hardships likely to be
caused to the accused, the complainant/the prosecution and the
witnesses, besides the burden to be borne by the State
exchequer in making payment of travelling and other expenses of
the official and non-official witnesses;
(iv) a communally surcharged atmosphere, indicating some
proof of inability of holding fair and impartial trial because of the
accusations made and the nature of the crime committed by the
accused; and
(v) existence of some material from which it can be inferred
that some persons are so hostile that they are interfering or are
likely to interfere either directly or indirectly with the course of
justice.
30. Having considered the rival claims of both the parties on the
touchstone of the aforestated broad parameters, we are of the view
that the apprehension entertained by CBI that the trial of the case at
Ghaziabad may not be fair, resulting in miscarriage of justice, is
misplaced and cannot be accepted. From the material on record, we
are unable to draw any inference of a reasonable apprehension of
bias nor do we think that an apprehension based on a bald
allegation that since the trial Judge and some of the named accused
had been close associates at some point of time and that some of
the witnesses are judicial officers, the trial at Ghaziabad would be
biased and not fair, undermining the confidence of the public in the
system. While it is true that Judges are human beings, not
automatons, but it is imperative for a judicial officer, in whatever
capacity he may be functioning, that he must act with the belief that
he is not to be guided by any factor other than to ensure that he
shall render a free and fair decision, which according to his
conscience is the right one on the basis of materials placed before
him. There is no exception to this imperative. Therefore, we are not
28
disposed to believe that either the witnesses or the Special Judge
will get influenced in favour of the accused merely because some of
them happen to be their former colleagues. As already stated,
acceptance of such allegation, without something more substantial,
seriously undermines the credibility and the independence of the
entire judiciary of a State. Accordingly, we outrightly reject this
ground urged in support of the prayer for transfer of the trial from
Ghaziabad.
31. As regards the plea that the Court of Special Judge, CBI,
Ghaziabad is already heavily overburdened, in our opinion, that is
again not a ground for transfer of trial. If at all the said court is
overburdened, it will be open to the High Court to request the State
Government to create another court of a Special Judge at
Ghaziabad and we are confident that having regard to the nature of
the case and the serious concern already shown by the State
Government by issuing Notification dated 10-9-2008 promptly and
expeditiously, the State Government will take appropriate steps in
that behalf so that the guilty are brought to book at the earliest not
only in this case but in other sensitive trials, stated to be pending in
that court, as well.
32. For the aforestated reasons, as at present, we do not find any
merit in the request of CBI for transfer of the trial from Ghaziabad to
any other place. Accordingly, the prayer is declined. The trial court is
directed to proceed with the case expeditiously."
(emphasis is ours)
The issue of transfer of proceedings under Section 406 of the Code of
Criminal Procedure was examined by this Court in Vikas Kumar
Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178, wherein this Court
observed as under:
"23. It is true that there must be reasonable apprehension on the
part of the party to a case that justice may not be done and mere
allegation that there is apprehension that justice will not be done
cannot be the basis for transfer. However, there is no manner of
doubt that the reasonable apprehension that there would be failure
29
of justice and acquittal of the accused only because the witnesses
are threatened is made out by the petitioner.
24. This Court, on various occasions, had opportunity to discuss the
importance of fair trial in criminal justice system and various
circumstances in which a trial can be transferred to dispense fair and
impartial justice. It would be advantageous to notice a few decisions
of this Court with regard to the scope of Section 406 of the Code of
Criminal Procedure.
XXX XXX XXX XXX
29. From the averments made in the petition it is evident that the
accused belong to a powerful gang operating in U.P. from which the
State of Uttarakhand is carved out. The petitioner has been able to
show the circumstances from which it can be reasonably inferred
that it has become difficult for the witnesses to safely depose truth
because of fear of being haunted by those against whom they have
to depose. The reluctance of the witnesses to go to the court at
Haridwar in spite of receipt of repeated summons is bound to
hamper the course of justice. If such a situation is permitted to
continue, it will pave way for anarchy, oppression, etc., resulting in
breakdown of criminal justice system. In order to see that the
incapacitation of the eyewitnesses is removed and justice triumphs,
it has become necessary to grant the relief claimed in the instant
petition. On the facts and in the circumstances of the case this Court
is of the opinion that interest of justice would be served if transfer of
the case from Haridwar to Delhi is ordered."
(emphasis
is ours)
Last of all reference may be made to the decision rendered by this Court in
Jahid Shaikh v. State of Gujarat, (2011) 7 SCC 762. The observations
made by this Court with reference to Section 406 of the Code of Criminal
Procedure, are placed below:
"39. However, such a ground, though of great importance, cannot be
the only aspect to be considered while deciding whether a criminal
trial could be transferred out of the State which could seriously affect
the prosecution case, considering the large number of witnesses to
30
be examined to prove the case against the accused. The golden
thread which runs through all the decisions cited on behalf of the
parties, is that justice must not only be done, but must also be seen
to be done. If the said principle is disturbed, fresh steps can always
be taken under Section 406 CrPC and Order 36 of the Supreme
Court Rules, 1966 for the same reliefs.
40. The offences with which the accused have been charged are of
a very serious nature, but except for an apprehension that justice
would not be properly administered, there is little else to suggest that
the charged atmosphere which existed at the time when the
offences were alleged to have been committed, still exist and was
likely to prejudice the accused during the trial. All judicial officers
cannot be tarred with the same brush and denial of a proper
opportunity at the stage of framing of charge, though serious, is not
insurmountable. The accused have their remedies elsewhere and
the prosecution still has to prove its case.
41. As mentioned earlier, the communally surcharged atmosphere
which existed at the time of the alleged incidents, has settled down
considerably and is no longer as volatile as it was previously. The
Presiding Officers against whom bias had been alleged, will no
longer be in charge of the proceedings of the trial. The conditions in
Gujarat today are not exactly the same as they were at the time of
the incidents, which would justify the shifting of the trial from the
State of Gujarat. On the other hand, in case the sessions trial is
transferred outside the State of Gujarat for trial, the prosecution will
have to arrange for production of its witnesses, who are large in
number, to any venue that may be designated outside the State of
Gujarat.
42. At the present moment, the case for transfer of the trial outside
the State of Gujarat is based on certain incidents which had
occurred in the past and have finally led to the filing of charges
against the accused. The main ground on which the petitioners have
sought transfer is an apprehension that communal feelings may,
once again, raise its ugly head and permeate the proceedings of the
trial if it is conducted by the Special Judge, Ahmedabad. However,
such an allegation today is more speculative than real, but in order
to dispel such apprehension, we also keep it open to the petitioners
that in the event the apprehension of the petitioners is proved to be
real during the course of the trial, they will be entitled to move afresh
31
before this Court for the relief sought for in the present transfer
petition." (emphasis is ours)
It is in light of the parameters recorded by this Court that we shall
endeavour to determine the veracity of the prayer made by the petitioners
for transfer of proceedings from the court of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P., to a court of competent jurisdiction in Delhi/New
Delhi.
15. First and foremost we shall deal with the ground of inconvenience
raised by the petitioners for seeking transfer of proceedings. In so far as
the instant issue is concerned, besides the judgments referred to
hereinabove, reference may be made to the decision rendered in Bhairu
Ram v. Central Bureau of Investigation, (2010) 7 SCC 799, wherein the
issue of inconvenience was considered, and this Court held as under:
"10. In the case on hand, except convenience, the petitioners have
not pressed into service any other ground for transfer. In fact, Mr
P.H. Parekh, informed this Court that the petitioners are willing to
attend the proceedings at Delhi, if the case is transferred to Special
Court, CBI, Delhi.
11. Mr H.P. Raval, learned Additional Solicitor General, after taking
us through specific averments made in the counter-affidavit filed on
behalf of Respondents 1 and 2 (CBI), submitted that the main
accused Shri B.R. Meena is a very influential person in the State of
Rajasthan and there is strong apprehension that due to influence of
Shri B.R. Meena, there would be no fair trial at Jaipur or any other
place in the State of Rajasthan. He also pointed out that the Court of
Special Judge, CBI at Greater Mumbai has ample jurisdiction to try
this case because various movable properties have been found in
Mumbai and the main accused, Shri B.R. Meena, was posted in
Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and
32
this is the period during which most of the properties were allegedly
acquired by him and his family members.
12. We have already adverted to the fact that against the main
accused Shri B.R. Meena, (IRS 1977), Commissioner of Income
Tax, Income Tax Appellate Tribunal, Mumbai, a case has been
registered on 29-9-2005 under Section 13(2) read with Section 13(1)
(e) of the Prevention of Corruption Act, 1988 for possession of
assets in his own name and in the name of his family members to
the extent of Rs 43,29,394 which were disproportionate to his known
sources of income and could not be satisfactorily accounted for. It
further shows that Respondent 3, during the check period i.e. 1-4-
1993 to 4-10-2005, acquired assets disproportionate to his known
sources of income to the extent of Rs 1,39,39,025.
13. The petitioners have been charge-sheeted for commission of
offences under Section 109 read with Section 193 IPC read with
Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988 for having actively aided and abetted
Respondents 3 to 4 by fabricating false evidence through
preparation of false agreements to sell with the object to
justify/explain the huge cash recoveries from the residential
premises of Respondent 3. It further reveals that the petitioners
entered into false transactions with Respondent 3 showing receipt of
cash amounts against alleged purchase of immovable properties
from him. The stamp papers were purchased against (sic after)
registration of case and false agreements to sell were prepared in
connivance with each other.
14. A perusal of the charge-sheet containing all these details clearly
shows that witnesses to be examined are not only from Jaipur,
Rajasthan, but also from various other places including Mumbai.
Though the petitioners may have a little inconvenience, the mere
inconvenience may not be sufficient ground for the exercise of
power of transfer but it must be shown that the trial in the chosen
forum will result in failure of justice.
15. We have already pointed out that except the plea of
inconvenience on the ground that they have to come all the way
from Rajasthan no other reason was pressed into service. Even, the
request for transfer to Delhi cannot be accepted since it would not
be beneficial either to the petitioners or to the prosecution. In fact,
33
the main accused, Respondents 3 and 4 have not filed any petition
seeking transfer. In such circumstances, the plea of the petitioners
for transfer of the case from the Court of Special Judge, CBI,
Greater Mumbai to Special Judge, CBI, Jaipur on the ground of
inconvenience cannot be accepted." (emphasis is
ours)
The ground of inconvenience for transfer again came up for consideration
before this Court in Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803,
wherein the Court observed as follows:
"5. It is true that in cases of dissolution of marriage, restitution of
conjugal rights or maintenance, this Court shows much indulgence
to the wife and ordinarily transfers the case to a place where it would
be more convenient for the wife to prosecute the proceedings. But a
criminal case is on a somewhat different footing. The accused may
not be able to attend the court proceedings at Indore for many
reasons, one of which may be financial constraints, but the
consequences of non-appearance of the accused before the Indore
Court would be quite drastic.
6. Having regard to the consequences of non-appearance of the
accused in a criminal trial, we are loath to entertain the petitioner's
prayer for transfer. In a criminal proceeding, the right of the accused
to a fair trial and a proper opportunity to defend himself cannot be
ignored for the convenience of the complainant simply because she
happens to be the estranged wife." (emphasis is ours)
From the two judgments, referred to hereinabove, it clearly emerges that
inconvenience cannot be a valid basis for transfer of "criminal proceedings"
from one court to another under Section 406 of the Code of Criminal
Procedure. Be that as it may, we are of the view that the instant
contention advanced at the hands of the learned counsel for the petitioner
is wholly frivolous. According to the factual position depicted by the
learned counsel for the petitioners themselves, the distance between
34
Noida and Ghaziabad is 35 kms. whereas the distance between Noida and
Delhi is 17 kms. Based on a simple mathematical conclusion the distance
between Delhi and Ghaziabad must be approximately 52 kms.
(35+17=52). It is ununderstandable how a plea of inconvenience can be
based to avoid travelling a distance of merely 52 kms. Even if it is
assumed that a couple of hours would be consumed for travelling to and
fro (from Delhi to Ghaziabad and back) the inconvenience would not be
such as can be the basis for seeking transfer. Jurisdiction of a court to
conduct criminal prosecution is based on the provisions of Code of
Criminal Procedure. Often either the complainant or the accused have to
travel across an entire State to attend to criminal proceedings, before a
jurisdictional court. In some cases to reach the venue of the trial court, a
complainant or an accused may have to travel across several States.
Likewise, witnesses too may also have to travel long distances, in order to
depose before the jurisdictional court. If the plea of inconvenience for
transferring the cases from one court to another, on the basis of time taken
to travel to the court conducting the criminal trial is accepted, the
provisions contained in the Criminal Procedure Code earmarking the
courts having jurisdiction to try cases would be rendered meaningless.
Convenience or inconvenience are inconsequential so far as the mandate
of law is concerned. The instant plea therefore, deserves outright
rejection.
35
16. In so far as the second contention advanced at the hands of the
counsel for the petitioner is concerned, transfer has been sought on the
issue of threatened personal security. The petitioners believed that their
personal security is at risk on account of a vicious attack with a cleaver's
knife on Dr. Rajesh Talwar, which resulted in his having suffered grievous
injuries not only on his face but on both his hands as well. The injuries are
stated to have rendered Dr. Rajesh Talwar handicapped for more than two
months. The aforesaid incident has allegedly had the effect of making
both the petitioners scared to attend any court-proceedings at the
Ghaziabad court-complex. The case set up by the petitioners is, that the
incident in question has completely shaken the confidence of the
petitioners, and that, it is unsafe for the petitioners to appear before the
Special Judicial Magistrate (CBI), Ghaziabad, U.P. to defend themselves.
Whilst we are of the view that all preventive measures should have been in
place to avoid any assault of the nature which Dr.Rajesh Talwar
encountered on 25.1.2011, we appreciate the impossibility of the aforesaid
task specially when the attacker is a person suffering from a mental
disability. Such an attack cannot be deemed to have been aimed at
disabling the petitioners to defend themselves. The physical assault
suffered by the petitioner was clearly unrelated to their court-proceedings.
In the aforesaid view of the matter, the incident relied upon by the learned
counsel for the petitioners to seek transfer of proceedings by invoking
36
Section 406 of the Code of Criminal Procedure, is clearly misconceived.
Even otherwise, the counter affidavit filed on behalf of the CBI is
categorical on the issue in hand, to the effect that the Sessions Judge,
Ghaziabad, has personally reviewed the security system in the entire
court-premises, security/police personnel have been deployed so that no
untoward incident occurs in future. Additionally, the venue of the court-
proceedings of the petitioners has been shifted to a new building which
has proper boundary walls on all sides, with only one small entrance. The
building where the petitioners are required to attend the court proceedings
is therefore totally safe. In the counter affidavit filed by the CBI it has been
expressed, that whenever the case of the petitioners' is to be heard,
adequate police force would be deployed by the local administration. The
aforesaid undertaking (expressed in the counter affidavit, filed on behalf of
the CBI has been endorsed by the learned counsel representing the State
of Uttar Pradesh. Even though it has been pointed out that the petitioners
have not moved any application either to the Special Judicial Magistrate
(CBI), Ghaziabad, U.P. or to the police for seeking protection; we are
assured, if such a request is made at the hands of the petitioners, the
same will be duly considered in accordance with law. We have extracted
a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar
Rai, Advocate in paragraph 8 hereinabove. While perusing the aforesaid
affidavit we noticed reference therein to an order dated 25.1.2011 passed
37
in respect of the proceedings pending before the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. While dealing with the contention in
hand, it is necessary to place on record the aforesaid order dated
25.1.2011, the same is accordingly being extracted hereunder:-
"Under the circumstances seeing the sensitivity of the case, by
invoking inherent provisions under section 327 Cr.P.C. the court
feels it in the interest of justice that during the proceedings of the
instant case no person shall be allowed to enter in the courtroom
except for the parties to the case and their respective counsels.
Sd/-
Special Judicial Magistrate
(CBI),Ghaziabad"
The aforesaid order reveals the seriousness of the presiding officer
concerned. So as to ensure not only the safety of the petitioners but also
a free and fair trial, keeping in mind the sensitive nature of the case, an
appropriate order has already been passed by the presiding officer. We
have no doubt in our mind, that the order dated 25.1.2011 shall be
enforced in letter and in spirit. In case of breach thereof we would expect
the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate
steps including coercive measures if necessary, to enforce the same. The
majesty of law must be maintained at all costs. In the background of the
aforesaid developments, we are of the view that the proceedings being
conducted at the court-complex at Ghaziabad, cannot be termed as
unsafe, so as to be considered as threatening the personal security of the
petitioners. As such, we find no merit in the prayer for transfer of
38
proceedings from Ghaziabad to Delhi/New Delhi even on the ground of
personal security.
17. The third ground raised by the petitioners, noticed in paragraph 7
hereinabove, needs no adjudication at our hands on account of the fact
that the same was not pressed by the learned counsel representing the
petitioners during the course of hearing. The details depicting the third
ground have been noticed only because the learned Senior Counsel
representing the respondents insisted on inviting our attention to the fact
that the petitioners had expressed baseless insinuations against the
presiding officer of the court. Based on certain insinuations the petitioners
had asserted, that they were not likely to get justice, as the concerned
court was proceeding in the matter with a pre-determined mind. The
insinuations levelled by the petitioners are based on an order passed by
the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011.
Learned counsel for the petitioners advisedly refrained from pressing the
instant ground during the course of hearing. Even raising such a ground in
the pleadings, to state the least, can certainly be termed as most
irresponsible. The impertinence of the petitioners in the instant case, is
magnified manifold because the order dated 28.2.2011 was assailed by
the petitioners before the High Court of Judicature at Allahabad, but the
challenge failed. In this view of the matter, the insinuations can also be
stated to have been aimed even at the High Court. Although we could
39
have initiated action against the petitioners, yet in the peculiar facts and
circumstances of this case, we refrain ourselves from doing so. However,
we consider it just and appropriate to warn the petitioners from any such
impertinence in future.
18. In so far as the last contention advanced at the hands of the learned
counsel for the petitioners is concerned, the same was based on the
affidavit of Shri Praveen Kumar Rai, Advocate dated 24.2.2012, as also,
an application filed by the said counsel on 4.2.2012 (Annexure A-3 with the
affidavit, independently extracted hereinabove). We find merit in the
contention advanced at the hands of the learned Senior Counsel
representing the respondents, that the application dated 4.2.2012
(Annexure A-3) as also the affidavit of Shri Praveen Kumar Rai, Advocate,
dated 24.2.2012 are vague, and as such, cannot be the basis of a
justifiable claim for supporting a prayer for transfer of proceedings, under
Section 406 of the Code of Criminal Procedure. As pointed out by the
learned counsel for the respondents, even though allegations have been
levelled in the application (dated 4.2.2012) as well as the affidavit (dated
24.2.2012), that the petitioners counsel were prevented from discharging
their responsibility appropriately; neither the application nor the affidavit
disclose what the petitioners counsel were prevent from, as also, the
identity of those responsible. Therefore, the last contention, in our
40
considered view, is also devoid of any merit and as such deserves
rejection.
19. For the reasons stated hereinabove, we find no merit in the Transfer
Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar.
It is not possible in the facts and circumstances of this case for us to
conclude, that the petitioners will be deprived of a free and fair trial at
Ghaziabad. We are also satisfied that there is no well-substantiated
apprehension, that justice will not be dispensed to the petitioners
impartially, objectively and without any bias. It is also not possible for us to
accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the
hands of a psychopath can be a valid basis for transfer of the present
proceedings from Ghaziabad to Delhi/New Delhi. In view of the measures
adopted by the Sessions Judge, the CBI and the State Administration
towards security arrangements in the court-premises generally, and also,
the special arrangements which the respondents have undertaken to
make, with particular reference to the petitioners, we are satisfied that
justice will be dispensed to the petitioners in an atmosphere shorn of any
fear or favour. We have extracted the order passed by the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in paragraph
16 hereinabove. We wish to reiterate, that the order dated 25.1.2011 shall
be enforced in letter and in spirit. In case of breach thereof we would
expect the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take
41
appropriate steps including coercive measures if necessary, to enforce the
same. The majesty of law must be maintained at all costs. We have no
doubt, that the basis on which the petitioners are seeking transfer of
proceedings are just speculative and unjustified apprehensions based
interalia on vague and non-specific allegations. The instant Transfer
Petitions are accordingly dismissed. We also wish to caution the
petitioners, from making any irresponsible insinuations with reference to
court-proceedings. The proper course would be, to assail before a
superior court, any order which may not be to the satisfaction of the
petitioners, in accordance with law.
..................................J.
(B.S. Chauhan)
..................................J.
(Jagdish Singh Khehar)
New Delhi;
March 2, 2012
