2020 Supreme(SC) 604

SUPREME COURT OF INDIA
HRISHIKESH ROY, J.
Umesh Kumar Sharma – Petitioner
Versus
State of Uttarakhand & Ors. – Respondents
Transfer Petition (Crl.) Nos. 534-536 of 2019
Decided On : 16-10-2020

IMPORTANT POINTS
(1) Transfer power under Section 406 of Cr.P.C. is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered.
(2) Transfer of criminal cases – While considering plea for transfer, convenience of parties would be a relevant consideration. It cannot just be convenience of petitioner but also of Complainant, Witnesses, Prosecution besides larger issue of trial being conducted under jurisdictional Court.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 404 – Transfer of criminal case – Transfer power under Section 406 of Code is to be invoked sparingly – Only when fair justice is in peril, a plea for transfer might be considered – Court however will have to be fully satisfied that impartial trial is not possible – Equally important is to verify that apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises – While assurance of a fair trial needs to be respected, plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. (Paras 20 and 21)

(B) Supreme Court Rules, 1966 – Order XXXIX – Criminal Procedure Code, 1973 – Section 406 – Transfer of criminal cases – Charge sheet is already filed and case is scheduled to go for trial in Dehradun Court – Role of State will now be limited to prove prosecution case before Trial Court – In such Court controlled proceeding, prosecution will have to marshal their evidence which is to be evaluated by Presiding Officer of concerned Court – Apprehension of malicious prosecution because of steps taken by public prosecutor against petitioner in 2018, is not acceptable – Our courts are capable of deciding cases on merits of evidence – In his pleadings and arguments, petitioner has failed to demonstrate that because of what he endured in 2018, it is not possible for courts in the State to dispense justice objectively and without any bias – It cannot also be overlooked that petitioner is involved in several cases and this year itself has generated few on his own in state of Uttarakhand – It is difficult to accept that justice for petitioner can only be ensured by transfer of three cases mentioned in these petitions – While considering plea for transfer, convenience of parties would be a relevant consideration – It cannot just be convenience of petitioner but also of Complainant, Witnesses, Prosecution besides larger issue of trial being conducted under jurisdictional Court – When relative convenience and difficulties of all parties involved in the process are taken into account, petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State – Petitioner is not pointing any fingers towards courts and his apprehension is based only on action taken by the State – Transfer of trials from one state to another would inevitably reflect on credibility of State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice, transfer power should not be invoked – This case is not perceived to be one of those exceptional categories – Transfer Petitions dismissed. (Paras 12, 21, 22, 23 and 25)

Facts of the case:

Present petitions are filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand. Petitioner apprehends threat to his life and will be prejudiced in conducting his defence in the courts at Dehradun. The basic premise for such apprehension is that on account of his work as an investigative journalist against the Ruling dispensation, the State is targeting the petitioner for vindictive prosecution. It is pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister, his relatives and associates in the State of Uttarakhand and therefore he is being targeted for malicious prosecution within the State.

Findings of Court:

Credibility of the journalistic activity of the petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, prosecution in the concerned three cases cannot prima facie be said to be on account of malicious prosecution.

Result : Transfer Petitions dismissed.