2000 Supreme(SC) 998

2000(3) Supreme 738
SUPREME COURT OF INDIA
(Under Section 406 Crl. P.C.)
K.T. Thomas & R.P. Sethi, JJ.
Abdul Nazar Madani etc. -Petitioners
versus
State of Tamil Nadu & Anr. -Respondents
Transfer Petition (Crl.) No. 183 of 1999
With
Transfer Petition (Crl.) No. 26 of 2000
Decided on 5-5-2000
Counsel for the Parties :
For the Petitioners : Dr. A.M. Singhvi, V.K. Beeram, Sr. Advocates, Haris Beeram, S. Dave, Shakil Ahmed Syed, S.U.K. Sagar, Advocates.
For the Respondents : V.R. Reddy, Sr. Advocate, V.G. Pragasam, Advocate.

IMPORTANT POINTS
1. Mere existence of a surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made a ground for transfer of a case.
2. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.

Headnote:Code of Criminal Procedure, 1973-Section 406-Transfer of case for trial-Petitioners are Muslim accused in Coimbatore-Bomb Blast case-Special Court established to conduct trial at Coimbatore-Allegation of petitioner that in State of Tamil Nadu both Hindu and Muslim fundamentalists are inciting trouble which has surcharged communal atmosphere making conduct of fair trial impossible-Prayer to transfer case to any Court in Kerala from where petitioners hail-Allegations lawyer from Tamil Nadu not prepared to appear for him-Mere existence of surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made ground for transfer of a case-Nothing placed on record to prove allegations made in petition-Apart from petitioners there are 152 other accused persons out of which 150 are from Coimbatore-State Govt. made elaborate arrangement spending lakhs of rupees for conduct of smooth, speedy, fair and impartial trial-Transfer of case not only against interest of other accused persons but also against interest of prosecution and witnesses-Petition dismissed.

       The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. (Para 6)

       The mere existence of a surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made a ground for transfer of a case. Alleged communally surcharged atmosphere has to be considered in the light of the accusations made and the nature of the crime committed by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged communal atmosphere, the case should be transferred from the area where existence of such surcharged atmosphere is alleged. (Para 7)

       Petitioners in the instant case have made wild and general allegations of the surcharged atmosphere against a particular community of the society in the whole of the State of Tamil Nadu. We are of the opinion that in a secular, democratic country governed by the rule of law, the appropriate State Government is responsible for ensuring free, fair and impartial trial to the accused notwithstanding the nature of accusations made against them. Nothing has been placed on record nor was it possible to allege that the whole of the State of Tamil Nadu has become a communal State which cannot ensure a free, fair and impartial trial against the petitioners. If such a situation is shown to be existing, the State Government has no constitutional and moral right to rule the State as it would amount to perpetuating the continuance of a Government against the provisions of the Constitution which ensures and guarantees of a secular, democratic system of governance. The respondent have very emphatically submitted and we have no reason to doubt that the atmosphere in the State is not communally surcharged to the extent that holding of criminal trial against the petitioners and others is not possible in any part of the State. Even if some communal tension is shown to be in existence as perhaps is likely to be in view of the nature of offence committed and the accusations made against the petitioner and other accused persons, it is the obligation of the State Government to ensure the safety and security of the accused persons to stand free and impartial trial. It is true that in the detention order dated 7.7.1998 against the petitioner, the Commissioner of Police has mentioned that on account of the communal riots the Coimbatore City had become communally hypersensitive but those averments cannot be stretched to hold firstly that the whole State of Tamil Nadu has become communally surcharged and secondly that Coimbatore City itself continues to be so communally hypersensitive till date that the trial against the petitioners and other accused persons is not likely to be free, fair and impartial. (Para 8)

       We do not find any substance in the submission of the petitioners that as they and other accused persons are not likely to get proper legal assistance, the case should be transferred to some other State. We are also satisfied that the petitioners and other accused are adequately represented in the court and even if not, they can get the legal services from Palghat in Kerala where they want the case to be transferred. It may be noticed that Palghat is approximately 40 kilometers from Coimbatore and it is not difficult for any number of advocates to travel or stay at Coimbatore during the conduct of the trial. We are sure that if any advocate from outside the State of Tamil Nadu appears for any of the accused, the State Government shall provide him appropriate security to ensure him the discharge of his professional obligation towards the accused persons facing the trial in the case filed against them. (Para 9)

       At present there exists conducive atmosphere at Coimbatore where free, fair and impartial trial is possible to be conducted against the accused persons. This Court cannot loose sight of the fact that despite the petitioners there are 152 other accused persons out of which more than 150 are from Coimbatore and the State Government have made elaborate arrangements for their stay in the Central Prison, Coimbatore by making provision of having specified cells for the accused persons. We cannot forget the expenses of Rs. 22.40 lacs incurred by the State Government for re-modelling the building adjacent to the Central Prison to accommodate the special court for which even a judicial officer has been appointed who is stated to have taken charge on 7.4.2000. Lakhs of rupees are shown to have been spent for the conduct of smooth, speedy, fair and impartial trial. The transfer of the case, at this stage, is not only against the interests of the prosecution but also against the interests of the other accused persons, the prosecution witnesses and the convenience of all concerned in the matter. We are satisfied that a fair and speedy trial of the case is possible at Coimbatore and the accused persons including the petitioners need not have any cause for apprehension. (Para 10)