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SUPREME COURT OF INDIA
Hrishikesh Roy, J.
Jatinderveer Arora & Ors. – Appellants
Versus
State of Punjab – Respondent
Transfer Petition (Criminal) No. 452 of 2019 with Transfer Petition (Criminal) No. 459 of 2019; Transfer Petition (Criminal) No. 458 of 2019; Transfer Petition (Criminal) No. 461 of 2019; Transfer Petition (Criminal) No. 460 of 2019 and Transfer Petition (Criminal) No. 462 of 2019
Decided on : 25-11-2020
(A) Criminal Procedure Code, 1973 – Section 406 – Transfer of criminal case – For transfer of trial from one Court to another, Court must be fully satisfied about existence of such factors which would make it impossible to conduct a fair trial – General allegation of surcharged atmosphere is not sufficient – Apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of accused but reasons have to be more compelling than that – No universal Rules can be laid down for deciding transfer petitions and each one has to be decided in backdrop of that case alone – One must also be mindful of fact that when trial is shifted out from one State to another, it would tantamount to casting aspersions on Court having lawful jurisdiction to try the case – Powers under Section 406 Cr.P.C. must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible – If Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted – Transfer of trial from one State to another would inevitably reflect on credibility of State’s judiciary – Except for compelling factors and clear situation of deprivation of fair justice, transfer power should not be invoked. (Paras 11 and 21)
(B) Criminal Procedure Code, 1973 – Section 406 read with Order XXXIX of Supreme Court Rules – Transfer of criminal cases – Petitioners have not moved out and continue to reside in usual place of residence in the State and doing their work/business in a routine manner – No specific instance of prejudice has been brought to Court’s notice on account of social boycott call or appeal to Medical professionals or taxi operators, to deny co-operation – No complaint is lodged before court or to authorities about any threat or intimidation – While there is a specific instance of one of defence Lawyer disassociating himself from case on personal ground, two regular Lawyers continue to defend accused since January, 2019 without any break or difficulty – This would suggest that petitioners defence is not being compromised in Punjab and they are receiving adequate legal assistance – Order-sheet of proceedings reflects clearly that Magistrate administered caution and duly satisfied himself on both occasions to ensure that legal procedures were followed and statement was free and not under pressure – Matter emanates from State of Punjab and accused, witnesses and prosecutors are all from the State – If trial is shifted out, all of them will face difficulties – Petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition – If their threat perceptions were genuine, they could not have gone about their normal ways – Atmosphere in the State does not justify shifting of trial venue to another State – Convenience of all parties should be looked at and not just the party which is seeking transfer – Few instances mentioned by petitioners’ Counsel may suggest heightened feelings amongst different groups but they do not call for transfer of proceedings to another State – State must make all arrangement to ensure safe conduct of proceedings at trial courts and also provide adequate security to petitioners and their associates as might be warranted from security perspective – Cases dismissed. (Paras 4, 5, 6, 8, 13, 15, 18, 19, 22 and 23)
Facts of the case:
Present petitions are filed under Section 406 of Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab. According to the petitioners, the situation in Bhatinda and other places is communally surcharged where, fair trial is a near impossibility. The question to be answered here is whether situation in Punjab is so communally surcharged that petitioners will be deprived of fair trial, if they are to be conducted within the State.
Findings of Court:
From the available material, this Court cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. The few instances mentioned by the petitioners’ counsel may suggest heightened feelings amongst different groups but they do not in my estimation, call for transfer of proceedings to another State.
Result : Cases dismissed.
JUDGMENT
Hrishikesh Roy, J.
These petitions are filed under Section 406 of the Code of Criminal Procedure, 1973 (for short "the CrPC") read with Order XXXIX of the Supreme Court Rules seeking transfer of Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab.
2.1 Mr. Ranjit Kumar, the learned Senior Counsel for the petitioners submits that as the matters relate to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab, deep anguish and bitterness is generated amongst a particular religious group, who form majority of the population in the State of Punjab and therefore the accused who are members of the Dera Sacha Sauda sect, are facing bias and prejudice and are unlikely to get a fair trial in the face of strong presumption of culpability.
2.2 According to the petitioners, the situation in Bhatinda and other places is communally surcharged where, fair trial is a near impossibility. In support of such contention, the Senior Counsel refers to the murder of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha Central jail, which according to Mr. Kumar, clearly shows the threat to the lives of other co-accused in the hands of the radical elements in the State.
2.3 Moreover, public appeals have been made to socially boycott the accused and also to those dealing with them, such as lawyers, doctors and taxi drivers and these developments would indicate the serious difficulties faced by the accused in conducting their defence.
2.4 The learned Senior Counsel submits that a forced statement under Section 164 CrPC was obtained from the petitioner Jatinderveer Arora and this would suggest that in Punjab, an unbiased prosecution cannot be ensured.
2.5 The mass gathering in the court premises where these cases are listed on the given dates, is highlighted by the Senior Counsel to emphasize the threat to the life of the accused since adequate arrangement and security has not been provided by the State.
3.1 Representing the State of Punjab, Mr. Harin P Raval, learned Senior Counsel on the other hand argues that no case for transfer is made out by the petitioners. The Senior Counsel submits that although petitioners speak of surcharged atmosphere and threat to their life in Punjab, after getting bail, they continue to reside and conduct their affairs in their respective place without any threat or hindrance. The State Counsel then submits that petitioners have not suffered any prejudice in conducting their defence as the same two lead counsels continue to represent them since beginning. That apart, no specific instance, of denial of medical or transportation service or legal assistance is brought to the Court's notice, notwithstanding the so called public appeal made by few people.
3.2 According to the State's lawyer, the petitioners have suppressed material facts. Moreover, one solitary incident of Section 164 CrPC statement of one of the petitioners i.e. Jatinderveer Arora (CHI No. 3/2019) is being relied upon by the other petitioners to project prejudice although they are involved in other cases. It is then pointed out that Jatinderveer Arora while in judicial custody, volunteered to record his statement for which he was produced on 22.11.2018 before the JMIC, Phul but on that date, he developed cold feet and was taken back and the learned Magistrate directed the SSP, Bhatinda to ensure safety to the accused. Later, on 01.12.2018, the same person voluntarily recorded his statement before the Magistrate and this is now part of the court records. On that occasion, the concerned Magistrate administered caution and satisfied himself that the petitioner was not pressurized or threatened and made a voluntary disclosure.
3.3 On the security front, Mr. Raval submits, on instruction from State DGP, that
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