Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1592-1593 of 2015
(@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)
Usmangani Adambhai Vahora …Appellant
Versus
State of Gujarat & Anr. …Respondents
J U D G M E N T
Dipak Misra, J.
The seminal issue that has emerged for consideration in these appeals
is whether the High Court in exercise of jurisdiction under Article 227 of
the Constitution of India is justified in quashing the order dated
14.08.2015 passed by the Principal Sessions Judge, Kheda at Nadiad in
Criminal Miscellaneous Application No. 545 of 2015 arising from the
Sessions Case No. 291 of 2003 instituted for the offences punishable under
Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of the Indian
Penal Code (IPC) and further directing the learned Principal Sessions Judge
to transfer the Sessions Case to any other court of the learned Additional
Sessions Judge in the same Sessions Division from the court of the 3rd
Additional Sessions Judge, Kheda.
2. Be it stated at the beginning, the High Court has posed two questions
– one of which pertains to exercise of power under sub-section (1) of
Section 408 of the Code of Criminal Procedure, 1973 (CrPC) by the Sessions
Judge to transfer a case from one Additional Sessions Judge to any other
Additional Sessions Judge in his Sessions Division after commencement of
the trial, and the other, whether the case deserves to be transferred.
Answering the first issue, the High Court has opined that the transfer
petition preferred under Section 408 CrPC before the learned Principal
Sessions Judge is maintainable. The view expressed by the High Court on
this score appears to be correct and hence, we affirm the same. The
principal issue warranting delineation is the justification for allowing
application for transfer from the court where the trial was pending to the
court of another learned Additional Sessions Judge.
3. The facts which are essential to be stated are that the 2nd
respondent faced trial for the offences mentioned hereinbefore in Sessions
Case No. 291 of 2003. After examination of 18 prosecution witnesses, the
informant preferred an application under Section 319 CrPC for arraigning
one Natubhai Maganbhai Edanwala as an accused in the sessions case. The
said application was rejected by the learned trial judge vide order dated
18.05.2006. Aggrieved by the aforesaid rejection, the informant preferred
Special Criminal Application No. 1444 of 2006 before the High Court which
vide order dated 02.12.2011 rejected the same. The said order was assailed
before this Court in Special Leave Petition (Criminal) No. 17262 of 2012
which was dismissed on 11.01.2013 with the observation that it would be
open to the informant to file an appropriate application under Section 319
CrPC, if at the end of the examination of all the witnesses, some material
is found to connect the person sought to be arraigned as an accused in the
alleged crime. As the factual matrix would exposit, the informant filed
another application under Section 319 CrPC after the examination of the
prosecution witnesses Nos. 19 to 23 and the application was allowed. The
newly arraigned accused preferred Special Criminal Application No. 1731 of
2013 before the High Court challenging the said order, and the High Court
had stayed the same.
4. As the factual score would undrape on 31.07.2015 when the sessions
trial was fixed before the learned 3rd Additional Sessions Judge, Kheda at
Nadiad, as alleged, the second respondent was standing in the parking area
meant for the four wheelers and at that time he could overhear certain
conversation between the informant and his son that the trial would be
surely taken up for hearing from the next date onwards and all the accused
persons would definitely be convicted. As further alleged, the Presiding
Officer said something regarding the trial which the accused correlated
with the conversation he had overheard between the informant and his son.
Under such circumstances, he filed Criminal Miscellaneous Application No.
545 of 2015 under Section 408 CrPC before the Principal Sessions Judge,
Kheda for transfer of the sessions case to any other court in the same
Sessions Division. The learned Principal Sessions Judges called for the
remarks of the concerned Presiding Officer and, after taking into
consideration the remarks and adverting to the position of law, rejected
the application. The learned Principal Sessions Judge while rejecting the
application had observed that once the trial commenced, he had no
jurisdiction to transfer the case in exercise of the power under Section
408 CrPC. As has been stated earlier, the High Court had unsettled the said
view and we have no hesitation to say correctly so.
5. The High Court, as has been indicated earlier, has referred to the
conversation between the parties and the impression of the accused. After
narrating the same, the High Court has observed that the accused-petitioner
definitely is in dilemma and whether to term his apprehension as reasonable
or not, the result of the reaction of a hypersensitive mind is the
question. Thereafter, the High Court has proceeded to observe that the
learned trial Judge had not examined any witness; that all witnesses
examined so far were examined by his predecessor in office; that the
Presiding Officer himself had also not indicated his disinclination to hear
the matter, and that apart, he had offered quite a stiff resistance to the
plea of transfer as the same is revealed from his remarks forwarded to the
Principal Sessions Judge. After so stating, the learned single Judge has
held thus:-
“…I am sure that the present Additional Sessions Judge would have acted in
a true sense of a Judicial Officer. But nevertheless, to ensure that
justice is not only done, but also seems to be done and in the peculiar
facts of the case, I feel that it will be appropriate if the Principal
Sessions Judge transfers the case to any other Additional Sessions Judge in
the same Sessions Division. I make it abundantly clear that the transfer
shall not be construed as casting any aspersions on the learned Additional
Sessions Judge.”
6. On a careful scrutiny of the order passed by the High Court, it is
not clear whether the High Court has been convinced that the accused has
any real apprehension or bias against the trial judge. However, the
observations of the learned single Judge, as it seems to us, is
fundamentally based on apprehension and to justify the same, he has
referred to the remarks offered by the learned Additional Sessions Judge to
the Sessions Judge when explanation was called for. First, we shall refer
to the issue of apprehension. The apprehension is based on some kind of
conversation between the informant and another that the accused persons
shall be convicted. There is also an assertion that the trial judge is a
convicting Judge and that is why, the High Court has observed that he is in
dilemma.
7. So far as apprehension is concerned, it has to be one which would
establish that justice will not be done. In this context, we may profitably
refer to a passage from a three-Judge Bench decision in
Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:-
“… The law with regard to transfer of cases is well-settled. A case is
transferred if there is a reasonable apprehension on the part of a party to
a case that justice will not be done. A petitioner is not required to
demonstrate that justice will inevitably fail. He is entitled to a transfer
if he shows circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the circumstances alleged. It
is one of the principles of the administration of justice that justice
should not only be done but it should be seen to be done. However, a mere
allegation that there is apprehension that justice will not be done in a
given case does not suffice. The Court has further to see whether the
apprehension is reasonable or not. To judge of the reasonableness of the
apprehension the state of the mind of the person who entertains the
apprehension is no doubt relevant but that is not all. The apprehension
must not only be entertained but must appear to the Court to be a
reasonable apprehension.”
8. This Court in Abdul Nazar Madani v. State of T.N.[2] has ruled that:-
“…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. In Captain Amarinder Singh v. Parkash Singh Badal and others[3],
while dealing with an application for transfer petition preferred under
Section 406 CrPC, a three-Judge Bench has opined that for
transfer of a criminal case, there must be a reasonable apprehension on the
part of the party to a case that justice will not be done. It has also been
observed therein that mere an allegation that there is an apprehension that
justice will not be done in a given case alone does not suffice. It is
also required on the part of the Court to see whether the apprehension
alleged is reasonable or not, for the apprehension must not only be
entertained but must appear to the Court to be a reasonable apprehension.
In the said context, the Court has held thus:-
“19. Assurance of a fair trial is the first imperative of the dispensation
of justice. The purpose of the criminal trial is to dispense fair and
impartial justice uninfluenced by extraneous considerations. When it is
shown that the public confidence in the fairness of a trial would be
seriously undermined, the aggrieved party can seek the transfer of a case
within the State under Section 407 and anywhere in the country under
Section 406 CrPC.
20. However, the apprehension of not getting a fair and impartial inquiry
or trial is required to be reasonable and not imaginary. Free and fair
trial is sine qua non of Article 21 of the Constitution. If the criminal
trial is not free and fair and if it is biased, judicial fairness and the
criminal justice system would be at stake, shaking the confidence of the
public in the system. The apprehension must appear to the court to be a
reasonable one.”
10. In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand[4], the
Court, repelling the submission that because some of the distantly related
members were in the midst of the Chief Minister, opined that from the said
fact it cannot be presumed that the Presiding Judge would conclude against
the appellant. From the said decision, we think it appropriate to
reproduce the following passage:-
“Independence of judiciary is the basic feature of the Constitution. It
demands that a Judge who presides over the trial, the Public Prosecutor who
presents the case on behalf of the State and the lawyer vis-à-vis amicus
curiae who represents the accused must work together in harmony in the
public interest of justice uninfluenced by the personality of the accused
or those managing the affairs of the State. They must ensure that their
working does not lead to creation of conflict between justice and
jurisprudence. A person whether he is a judicial officer or a Public
Prosecutor or a lawyer defending the accused should always uphold the
dignity of their high office with a full sense of responsibility and see
that its value in no circumstance gets devalued. The public interest
demands that the trial should be conducted in a fair manner and the
administration of justice would be fair and independent.”
11. The aforesaid passage, as we perceive, clearly lays emphasis on
sustenance of majesty of law by all concerned. Seeking transfer at the
drop of a hat is inconceivable. An order of transfer is not to be passed
as a matter of routine or merely because an interested party has expressed
some apprehension about proper conduct of the trial. The power has to be
exercised cautiously and in exceptional situations, where it becomes
necessary to do so to provide credibility to the trial. There has to be a
real apprehension that there would be miscarriage of justice. [See : Nahar
Singh Yadav and another v. Union of India and others[5]].
12. In the instant case, we are disposed to think that apprehension that
has been stated is absolutely mercurial and cannot remotely be stated to be
reasonable. The learned single Judge has taken an exception to the remarks
given by the learned trial judge and also opined about non-examination of
any witness by him. As far as the first aspect is concerned, no exception
can be taken to it. The learned Sessions Judge, while hearing the
application for transfer of the case, called for remarks of the learned
trial judge, and in such a situation, he is required to give a reply and
that he has done. He is not expected to accept the allegations made as
regards his conduct and more so while nothing has been brought on record to
substantiate the same. The High Court could not have deduced that he should
have declined to conduct the trial. This kind of observation is absolute
impermissible in law, for there is no acceptable reason on the part of the
learned trial judge to show his disinclination. Solely because an accused
has filed an application for transfer, he is not required to express his
disinclination. He is required under law to do his duty. He has to perform
his duty and not to succumb to the pressure put by the accused by making
callous allegations. He is not expected to show unnecessary sensitivity to
such allegations and recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in the adjudicatory
process. The unscrupulous litigants will indulge themselves in court
haunting. If they are allowed such room, they do not have to face the
trial before a court in which they do not feel comfortable. The High Court
has gravely erred in this regard. So far as the non-examination of the
witnesses is concerned, as the factual score would uncurtain, the matter
had travelled to the High Court in revision assailing the order passed
under Section 319 CrPC. Be that as it may, the High Court has not
adverted to the issue who was seeking adjournment and what was the role of
the learned trial judge. Grant of adjournment could have been dealt with
by the High Court in a different manner. It has to be borne in mind that a
judge who discharges his duty is bound to commit errors. The same have to
be rectified. The accused has never moved the superior court seeking its
intervention for speedy trial. The High Court has innovated a new kind of
approach to transfer the case. The High Court should have kept in view the
principles stated in K.P. Tiwari v. State of M.P.[6] which are to the
following effect:-
“… 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.”
13. Thus analysed, we are unable to sustain the order of transfer passed
by the High Court. Consequently, the appeals are allowed in part. The
finding recorded as regards the jurisdiction of the learned Sessions Judge
is sustained, and as far as the direction to the Principal Sessions Judge
to transfer the case from the 3rd Additional Sessions Judge to some other
court being vulnerable and wholly unsustainable is set aside. The learned
trial judge shall proceed with the trial and dispose of the same within six
months.
.................................J.
[Dipak Misra]
.................................J.
[Prafulla C. Pant]
NEW DELHI
JANUARY 8, 2016
-----------------------
[1] AIR 1966 SC 1418
[2] (2000) 6 SCC 204
[3] (2009) 6 SCC 260
[4] (2013) 8 SCC 593
[5] (2011) 1 SCC 307
[6] 1994 Supp. (1) SCC 540
-----------------------
14
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1592-1593 of 2015
(@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)
Usmangani Adambhai Vahora …Appellant
Versus
State of Gujarat & Anr. …Respondents
J U D G M E N T
Dipak Misra, J.
The seminal issue that has emerged for consideration in these appeals
is whether the High Court in exercise of jurisdiction under Article 227 of
the Constitution of India is justified in quashing the order dated
14.08.2015 passed by the Principal Sessions Judge, Kheda at Nadiad in
Criminal Miscellaneous Application No. 545 of 2015 arising from the
Sessions Case No. 291 of 2003 instituted for the offences punishable under
Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of the Indian
Penal Code (IPC) and further directing the learned Principal Sessions Judge
to transfer the Sessions Case to any other court of the learned Additional
Sessions Judge in the same Sessions Division from the court of the 3rd
Additional Sessions Judge, Kheda.
2. Be it stated at the beginning, the High Court has posed two questions
– one of which pertains to exercise of power under sub-section (1) of
Section 408 of the Code of Criminal Procedure, 1973 (CrPC) by the Sessions
Judge to transfer a case from one Additional Sessions Judge to any other
Additional Sessions Judge in his Sessions Division after commencement of
the trial, and the other, whether the case deserves to be transferred.
Answering the first issue, the High Court has opined that the transfer
petition preferred under Section 408 CrPC before the learned Principal
Sessions Judge is maintainable. The view expressed by the High Court on
this score appears to be correct and hence, we affirm the same. The
principal issue warranting delineation is the justification for allowing
application for transfer from the court where the trial was pending to the
court of another learned Additional Sessions Judge.
3. The facts which are essential to be stated are that the 2nd
respondent faced trial for the offences mentioned hereinbefore in Sessions
Case No. 291 of 2003. After examination of 18 prosecution witnesses, the
informant preferred an application under Section 319 CrPC for arraigning
one Natubhai Maganbhai Edanwala as an accused in the sessions case. The
said application was rejected by the learned trial judge vide order dated
18.05.2006. Aggrieved by the aforesaid rejection, the informant preferred
Special Criminal Application No. 1444 of 2006 before the High Court which
vide order dated 02.12.2011 rejected the same. The said order was assailed
before this Court in Special Leave Petition (Criminal) No. 17262 of 2012
which was dismissed on 11.01.2013 with the observation that it would be
open to the informant to file an appropriate application under Section 319
CrPC, if at the end of the examination of all the witnesses, some material
is found to connect the person sought to be arraigned as an accused in the
alleged crime. As the factual matrix would exposit, the informant filed
another application under Section 319 CrPC after the examination of the
prosecution witnesses Nos. 19 to 23 and the application was allowed. The
newly arraigned accused preferred Special Criminal Application No. 1731 of
2013 before the High Court challenging the said order, and the High Court
had stayed the same.
4. As the factual score would undrape on 31.07.2015 when the sessions
trial was fixed before the learned 3rd Additional Sessions Judge, Kheda at
Nadiad, as alleged, the second respondent was standing in the parking area
meant for the four wheelers and at that time he could overhear certain
conversation between the informant and his son that the trial would be
surely taken up for hearing from the next date onwards and all the accused
persons would definitely be convicted. As further alleged, the Presiding
Officer said something regarding the trial which the accused correlated
with the conversation he had overheard between the informant and his son.
Under such circumstances, he filed Criminal Miscellaneous Application No.
545 of 2015 under Section 408 CrPC before the Principal Sessions Judge,
Kheda for transfer of the sessions case to any other court in the same
Sessions Division. The learned Principal Sessions Judges called for the
remarks of the concerned Presiding Officer and, after taking into
consideration the remarks and adverting to the position of law, rejected
the application. The learned Principal Sessions Judge while rejecting the
application had observed that once the trial commenced, he had no
jurisdiction to transfer the case in exercise of the power under Section
408 CrPC. As has been stated earlier, the High Court had unsettled the said
view and we have no hesitation to say correctly so.
5. The High Court, as has been indicated earlier, has referred to the
conversation between the parties and the impression of the accused. After
narrating the same, the High Court has observed that the accused-petitioner
definitely is in dilemma and whether to term his apprehension as reasonable
or not, the result of the reaction of a hypersensitive mind is the
question. Thereafter, the High Court has proceeded to observe that the
learned trial Judge had not examined any witness; that all witnesses
examined so far were examined by his predecessor in office; that the
Presiding Officer himself had also not indicated his disinclination to hear
the matter, and that apart, he had offered quite a stiff resistance to the
plea of transfer as the same is revealed from his remarks forwarded to the
Principal Sessions Judge. After so stating, the learned single Judge has
held thus:-
“…I am sure that the present Additional Sessions Judge would have acted in
a true sense of a Judicial Officer. But nevertheless, to ensure that
justice is not only done, but also seems to be done and in the peculiar
facts of the case, I feel that it will be appropriate if the Principal
Sessions Judge transfers the case to any other Additional Sessions Judge in
the same Sessions Division. I make it abundantly clear that the transfer
shall not be construed as casting any aspersions on the learned Additional
Sessions Judge.”
6. On a careful scrutiny of the order passed by the High Court, it is
not clear whether the High Court has been convinced that the accused has
any real apprehension or bias against the trial judge. However, the
observations of the learned single Judge, as it seems to us, is
fundamentally based on apprehension and to justify the same, he has
referred to the remarks offered by the learned Additional Sessions Judge to
the Sessions Judge when explanation was called for. First, we shall refer
to the issue of apprehension. The apprehension is based on some kind of
conversation between the informant and another that the accused persons
shall be convicted. There is also an assertion that the trial judge is a
convicting Judge and that is why, the High Court has observed that he is in
dilemma.
7. So far as apprehension is concerned, it has to be one which would
establish that justice will not be done. In this context, we may profitably
refer to a passage from a three-Judge Bench decision in
Gurcharan Dass Chadha v. State of Rajasthan[1], wherein it has been held:-
“… The law with regard to transfer of cases is well-settled. A case is
transferred if there is a reasonable apprehension on the part of a party to
a case that justice will not be done. A petitioner is not required to
demonstrate that justice will inevitably fail. He is entitled to a transfer
if he shows circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the circumstances alleged. It
is one of the principles of the administration of justice that justice
should not only be done but it should be seen to be done. However, a mere
allegation that there is apprehension that justice will not be done in a
given case does not suffice. The Court has further to see whether the
apprehension is reasonable or not. To judge of the reasonableness of the
apprehension the state of the mind of the person who entertains the
apprehension is no doubt relevant but that is not all. The apprehension
must not only be entertained but must appear to the Court to be a
reasonable apprehension.”
8. This Court in Abdul Nazar Madani v. State of T.N.[2] has ruled that:-
“…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. In Captain Amarinder Singh v. Parkash Singh Badal and others[3],
while dealing with an application for transfer petition preferred under
Section 406 CrPC, a three-Judge Bench has opined that for
transfer of a criminal case, there must be a reasonable apprehension on the
part of the party to a case that justice will not be done. It has also been
observed therein that mere an allegation that there is an apprehension that
justice will not be done in a given case alone does not suffice. It is
also required on the part of the Court to see whether the apprehension
alleged is reasonable or not, for the apprehension must not only be
entertained but must appear to the Court to be a reasonable apprehension.
In the said context, the Court has held thus:-
“19. Assurance of a fair trial is the first imperative of the dispensation
of justice. The purpose of the criminal trial is to dispense fair and
impartial justice uninfluenced by extraneous considerations. When it is
shown that the public confidence in the fairness of a trial would be
seriously undermined, the aggrieved party can seek the transfer of a case
within the State under Section 407 and anywhere in the country under
Section 406 CrPC.
20. However, the apprehension of not getting a fair and impartial inquiry
or trial is required to be reasonable and not imaginary. Free and fair
trial is sine qua non of Article 21 of the Constitution. If the criminal
trial is not free and fair and if it is biased, judicial fairness and the
criminal justice system would be at stake, shaking the confidence of the
public in the system. The apprehension must appear to the court to be a
reasonable one.”
10. In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand[4], the
Court, repelling the submission that because some of the distantly related
members were in the midst of the Chief Minister, opined that from the said
fact it cannot be presumed that the Presiding Judge would conclude against
the appellant. From the said decision, we think it appropriate to
reproduce the following passage:-
“Independence of judiciary is the basic feature of the Constitution. It
demands that a Judge who presides over the trial, the Public Prosecutor who
presents the case on behalf of the State and the lawyer vis-à-vis amicus
curiae who represents the accused must work together in harmony in the
public interest of justice uninfluenced by the personality of the accused
or those managing the affairs of the State. They must ensure that their
working does not lead to creation of conflict between justice and
jurisprudence. A person whether he is a judicial officer or a Public
Prosecutor or a lawyer defending the accused should always uphold the
dignity of their high office with a full sense of responsibility and see
that its value in no circumstance gets devalued. The public interest
demands that the trial should be conducted in a fair manner and the
administration of justice would be fair and independent.”
11. The aforesaid passage, as we perceive, clearly lays emphasis on
sustenance of majesty of law by all concerned. Seeking transfer at the
drop of a hat is inconceivable. An order of transfer is not to be passed
as a matter of routine or merely because an interested party has expressed
some apprehension about proper conduct of the trial. The power has to be
exercised cautiously and in exceptional situations, where it becomes
necessary to do so to provide credibility to the trial. There has to be a
real apprehension that there would be miscarriage of justice. [See : Nahar
Singh Yadav and another v. Union of India and others[5]].
12. In the instant case, we are disposed to think that apprehension that
has been stated is absolutely mercurial and cannot remotely be stated to be
reasonable. The learned single Judge has taken an exception to the remarks
given by the learned trial judge and also opined about non-examination of
any witness by him. As far as the first aspect is concerned, no exception
can be taken to it. The learned Sessions Judge, while hearing the
application for transfer of the case, called for remarks of the learned
trial judge, and in such a situation, he is required to give a reply and
that he has done. He is not expected to accept the allegations made as
regards his conduct and more so while nothing has been brought on record to
substantiate the same. The High Court could not have deduced that he should
have declined to conduct the trial. This kind of observation is absolute
impermissible in law, for there is no acceptable reason on the part of the
learned trial judge to show his disinclination. Solely because an accused
has filed an application for transfer, he is not required to express his
disinclination. He is required under law to do his duty. He has to perform
his duty and not to succumb to the pressure put by the accused by making
callous allegations. He is not expected to show unnecessary sensitivity to
such allegations and recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in the adjudicatory
process. The unscrupulous litigants will indulge themselves in court
haunting. If they are allowed such room, they do not have to face the
trial before a court in which they do not feel comfortable. The High Court
has gravely erred in this regard. So far as the non-examination of the
witnesses is concerned, as the factual score would uncurtain, the matter
had travelled to the High Court in revision assailing the order passed
under Section 319 CrPC. Be that as it may, the High Court has not
adverted to the issue who was seeking adjournment and what was the role of
the learned trial judge. Grant of adjournment could have been dealt with
by the High Court in a different manner. It has to be borne in mind that a
judge who discharges his duty is bound to commit errors. The same have to
be rectified. The accused has never moved the superior court seeking its
intervention for speedy trial. The High Court has innovated a new kind of
approach to transfer the case. The High Court should have kept in view the
principles stated in K.P. Tiwari v. State of M.P.[6] which are to the
following effect:-
“… 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.”
13. Thus analysed, we are unable to sustain the order of transfer passed
by the High Court. Consequently, the appeals are allowed in part. The
finding recorded as regards the jurisdiction of the learned Sessions Judge
is sustained, and as far as the direction to the Principal Sessions Judge
to transfer the case from the 3rd Additional Sessions Judge to some other
court being vulnerable and wholly unsustainable is set aside. The learned
trial judge shall proceed with the trial and dispose of the same within six
months.
.................................J.
[Dipak Misra]
.................................J.
[Prafulla C. Pant]
NEW DELHI
JANUARY 8, 2016
-----------------------
[1] AIR 1966 SC 1418
[2] (2000) 6 SCC 204
[3] (2009) 6 SCC 260
[4] (2013) 8 SCC 593
[5] (2011) 1 SCC 307
[6] 1994 Supp. (1) SCC 540
-----------------------
14
