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General allegation of surcharged atmosphere is not sufficient: SC on transfer of trial [406 Cr.P.C]

The proposition of law that emanates from the above judgments is that for transfer of trial from one Court to another, the 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 however sufficient. The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone. One must also be mindful of the fact that when trial is shifted out from one State to another, it would tantamount to casting aspersions on the Court, having lawful jurisdiction to try the case. Hence powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. (Para 11)



NOVEMBER 25, 2020

Learned Senior Counsels:

Mr. Ranjit Kumar for the Petitioners

Mr. Harin P Rawal for the State of Punjab,

The Hon'ble Supreme Court Justice Hrishikesh Roy dismissed the petitions filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules.

The petitions were filed praying for the transfer of Trial of criminal cases pending before the Courts at Bhatinda, Moga, and Faridkot districts to competent Court in Delhi or any nearby State, out of Punjab.

The learned Senior Counsel for the petitioners stated that the matters relate to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab. Thus, deep anguish and bitterness arouse amongst a particular religious group, who are the majority of the population in the State of Punjab. So, the accused, who are members of the Dera Sacha Sauda sect, were facing bias and prejudice. They prayed for the transfer of the case as they felt unlikely to get a fair trial in the face of a strong presumption of culpability. According to the petitioners, the situation in Bhatinda and other places is communally surcharged where; a fair trial is a near impossibility.

The issue raised before the Hon’ble Court was that:

Whether the situation in Punjab is so communally surcharged that the petitioners will be deprived of fair trial, if they are to be conducted within the State? (para 4)

The petitioners contention was that,

The murder of one of the accused Mohinder Pal Singh Bittoo inside the Nabha Central jail clearly showed the threat to their lives in the hands of the radical elements in the State. A forced statement under Section 164 CrPC was obtained from the petitioner. The mass gathering in the court premises where these cases are listed on the given dates emphasizes the threat to their life since adequate arrangement and security were not been provided by the State. 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 created serious difficulties in conducting the defense.

The Senior Counsel on behalf of the State contends that,

The Petitioners, although say about the threat to their life, after getting bail, they continue to reside and conduct their affairs in their respective place without any threat or hindrance.

No specific instance, of denial of medical or transportation service or legal assistance, was brought to the Court’s notice. It was pointed out that Jatinderveer Arora while in judicial custody, volunteered to record his statement for which he was produced before the JMIC. It would be difficult for the witnesses and the prosecution if the trial venue is to be shifted out of Punjab. No complaint is lodged before the court or to the authorities about any threat or intimidation.

The Court observed that the accused continued to reside at their usual place and were going about their routine affairs. If their threat perceptions were genuine, they could not have gone about their normal ways.

It will therefore not be fair to the prosecution, the State and the witnesses who are yet to testify, to shift the proceeding without compelling reasons as it will inevitably delay the trial. One must also remember that convenience of all parties should be looked at and not just the party which is seeking transfer (Para 15).

The Court further stated that,

‘Transfer of trial from one Court to another, the Court must be fully satisfied with existence of such factors which would make it impossible to conduct a fair trial. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone.’

Umesh Kumar Sharma Vs. State of Uttarakhand stated the legal position as under:-

“20. The above legal enunciations make it amply clear that transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that an impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.”

With the above findings, the Court held that it cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. And these cases were found devoid of merit.

The Court ordered to make all arrangements to ensure safe conduct of proceedings at the trial courts and also provide adequate security to the petitioners and their associates as might be warranted from the security perspective and it was also assured by the State.

And finally, the cases were dismissed.