VENKATESAN BALASUBRAMANIYAN versus THE INTELLIGENCE OFFICER, D.R.I. BANGALORE on 20 November 2020

1. Leave granted. These three appeals have been filed againstthe common judgment dated 30.11.2018 of the High Court of Judicatureat Hyderabad in Criminal Petition No.10524 of 2018 filed by therespondent before the High Court. By the impugned judgment dated30.11.2018, the petition filed by respondent Under Section 439(2) Cr.P.C.Chas been allowed cancelling the bail granted to the appellants by orderdated 12.07.2018 by Metropolitan Sessions Judge, Hyderabad.

2. The facts and issues in these appeals being similar, it shall besufficient to refer to the pleadings in Criminal Appeal arising out SLP(Crl.) No.1452 of 2019- Venaktesan Balasubramaniyan Vs. TheIntelligence Officer for deciding all these appeals, brief facts of whichDare as under:- 2.1On 11.01.2018, car bearing No. KA 39 M 2117 wasintercepted by Directorate of Revenue Intelligence(hereinafter referred to as “D.R.I.”), Hyderabad at toll plaza,Kamkole Village, Munnipalli Mandal, Sangareddy District,ETelangana in which appellants (driver and two men) weretravelling. The appellants along with other two personsintroduced themselves on being asked as to whether theyhave secreted anything illegal in the car, the appellantsreplied in negative. The Officers searched the car and foundFfalse casing behind the rear seats on the side walls of theboot of the car with metal doors. The appellants openedthe door and few transparent packets with off-whitecoloured packets were found in the casing attached to thewalls of the boot. The appellants told that packets were ofNarcotic drug, which were loaded in the car by a personGnamed Suraj at Omerga, Osmanabad District Maharashtra,which were to be delivered at Chennai. The Officers inpresence of Panchas and the appellants opened the packetand tested the materials in the packet. The appellants weretaken to the office of D.R.I., Hyderabad. The total quantityof packets (Methaqualone) weighed to be 45.874 Kgs.

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2.2On 12.01.2018, the appellants were arrested in exercise ofpower conferred under Section 42 of NDPS Act, 1985(hereinafter referred to as “Act, 1985”). The D.R.I. officersprepared a crime report against all the accused-appellantsfor commission of offence under Sections 22, 28 and 29 ofNDPS Act and produced them before the VI AdditionalCMM, Hyderabad. The duty Magistrate on 12.01.2018allowed the application for remand and the appellants wereremanded till 25.01.2018. On 25.01.2018, the appellants-accused persons were produced before the Special SessionsJudge Court, D.R.I., Hyderabad. Remand of the appellantswas extended from time to time. On 10.07.2018 theappellants were remanded only for two days since 180 daysprescribed for filing charge sheet were coming to an endon 12.07.2018.

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2.3On 12.07.2018, since 180 days had expired, the appellantsfiled bail application. Learned Special Sessions Judge,DHyderabad granted bail to the appellants under Section167(2) Cr.P.C. On 12.07.2018, a letter was received fromthe Additional Sessions Judge, Omerga, Maharashtra askingto handover the custody of appellants to D.R.I., Bangaloreas they were required to appear before the AdditionalESessions Judge, Omerga, Maharashtra in Special Case(NDPS) No.17 of 2018. The Sessions Court, Hyderabadgranted the custody of three accused on 13.07.2018 to theD.R.I., Bangalore. D.R.I., Bangalore produced theappellants before Additional Sessions Judge, Omerga,Maharashtra on 14.07.2018 where they were remanded tillF27.07.2018.

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2.4On 02.08.2018, D.R.I., Bangalore filed application beforethe Special Court, Hyderabad to transfer the records in theHyderabad case to Omerga Sessions Court. On 24.08.2018,the Special Sessions Judge, Hyderabad transferred therecords to the Omerga Court. When Special Court, Omerga,Maharashtra came to know that the appellants-accusedhave already been granted bail on 12.07.2018 before whichdate charge sheet was already filed before the OmergaCourt on 06.07.2018 which was taken on file on 11.07.2018

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AA show cause notice was issued to D.R.I., Bangalore togive explanation. The D.R.I., Bangalore filed an applicationfor cancellation of bail under Section 439(2) Cr.P.C. in theHigh Court by filing Criminal Petition No. 10524 of 2018.The High Court by the impugned order dated 30.11.2018cancelled the bail granted under Section 167(2) Cr.P.C.Bdated 12.07.2018. Aggrieved against the order dated30.11.2018, these appeals have been filed by the threeaccused-appellants.

3. This Court on 22.02.2019 noticed that only one of the appellants,i.e., Villayutham Nagu, has been released in pursuance of the bail orderCdated 12.07.2018, interim order was passed in the special leave petitionfiled by Villayutham Nagu alone and other two appellants being still undercustody, notices were issued in all the matters.

4. We have heard Shri M. Karpaga Vinayagam, learned seniorcounsel for the appellants. Shri Vikramjit Banerjee, learned AdditionalDSolicitor General has appeared for the respondent.

5. Learned senior counsel for the appellants submits that beforethe Special Judge, Hyderabad when the case was taken on 12.07.2018neither any charge sheet was filed before the Special Court Hyderabadnor any information was given to the Special Court that any chargeEsheet has been filed in Omerga Court, Maharashtra. No complaint underSection 36A(d) of NDPS Act having been filed by 12.07.2018 by whichperiod, 180 days had lapsed, the learned Special Court had granted defaultbail on 12.07.2018 to all the appellants. The accused were entitled fordefault bail under Section 167(2) Cr.P.C. Learned Senior counsel submitsFthat instead of filing an application for cancellation of the bail before theSpecial Court under Section 439(2) Cr.P.C., the respondent approachedbefore the High Court under Section 439(2) Cr.P.C. When the bail orderwas passed by the Special Court, D.R.I., Bangalore ought to haveinformed the Special Court seeking the cancellation of the bail by givingexplanation as to why the fact of filing combined complaint was notGinformed to the Special Court. It is submitted that recovery of contrabandfrom accused by the D.R.I. Hyderabad is entirely different from theOmerga case, which is relating to the recovery of the contrabandmanufactured at the factory situated at Omerga. The appellants are tobe charged only for the offence of possession and the transport. TheHappellants have no role to play with reference to the manufacture of contraband in the factory at Omerga. The seizure of the contrabandwas made by the D.R.I., Hyderabad on 11.01.2018 only during the timebetween 12 PM to 3:30 PM at Hyderabad whereas the recovery ofcontraband from the factory at Omerga was made by the D.R.I.,Bangalore only on 11.01.2018 at 4.30 PM and on 12.01.2018. It is furthersubmitted that when the Special Court was not informed either on10.07.2018 or 12.07.2018 that any charge sheet has been filed on06.07.2018, no error was committed by Special Court in granting thedefault bail under Section 167(2) Cr.P.C.

6. Learned Additional Solicitor General refuting the submissionsof the learned senior counsel for the appellants contends that theappellant’s Car was intercepted at Hyderabad on basis of specific andcredible information that huge quantity of NDPS substance being illegallymanufactured in premises of M/s. Pragati Electrical Work Omerga,which is being transported to Chennai. A total of 45.874 Kgs of NDPSsubstance from the appellants was seized on the basis of specificintelligence. In the voluntary statements of accused Nos. 5, 6 and 7(appellants), recorded under Section 67 of the Act, 1985 in connectionwith the seizure of 45.874 Kgs. of substance, they have stated that startedfrom Omerga for Chennai. It is submitted that a combined charge sheethas been filed taking into consideration the entire sequence of eventsincluding the seizure of 45.874 Kgs. NDPS substance by D.R.I.,Hyderabad in which present appellants are accused Nos. 5, 6 and 7. Itwas due to non-communication of information of combined complainthaving been filed on 06.07.2018, the order was passed by the SpecialCourt on 12.07.2018 granting default bail whereas on the same day, aletter was received by Special Court, Hyderabad where the SpecialCourt, Omerga has asked for the custody of the accused. All theappellants filed a bail petition on 18.07.2018 before the Omerga Courtunder Section 439 Cr.P.C., which bail application was subsequentlywithdrawn on 25.09.2018. On 31.10.2018, upon fulfilling the conditionsby one of the accused, Villayutham Nagu, the learned Omerga Courtwas pleased to release the said accused on 31.10.2018 and rest of thetwo accused are still in Osmanabad Jail. The High Court rightly cancelledthe bail, which was earlier granted by the learned Special Judge and thecombined complaint having been filed on 06.07.2018, which was alsotaken on file on 11.07.2018, the appellants were not entitled for grant ofdefault bail under Section 167(2) Cr.P.C.

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A7. We have considered the submissions of the learned counsel forthe parties and have perused the records.

8. The appellants’ car by which they were travelling from Omergato Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials ofHyderabad Zonal Unit near the Kamkole near Hyderabad and from theBpossession of the appellants 45.874 Kgs of narcotic substance wasrecovered. Appellants in the statement recorded under Section 67 ofNDPS Act have stated that they have started from Omerga to Chennaiin the car in which the narcotic substance was being transported. Theremand of the appellants was extended from time to time till 12.07.2018by Special Court, Hyderabad. On 11.01.2018, recovery of narcoticCsubstance was also made at Omerga in the factory premises ofM/s Pragati Electrical Work, MIDC Omerga, Maharashtra, on whichD.R.I. has registered a case and a combined complaint dated 06.07.2018was submitted by Intelligence Officer, D.R.I., Bangalore before theSpecial Court, Omerga. Complaint under Section 36A(1)(d) of NDPSDAct for offences under Section 8(c) punishable under Section 21(c),22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act has beenfiled dated 06.07.2018 by Intelligence Officer, D.R.I. in Omerga Court.The appellants have been made accused Nos. 5, 6 and 7 in the complaint.The combined complaint has been brought on the record by therespondent alongwith additional documents in which with regard toEaccused Nos. 5, 6 and 7, i.e., appellants in these appeals, apart fromother allegations and facts, following has been stated in paragraphs 110and 111:-

“110. The complainant submits that, accused No. 5, 6 and 7 i.e.Shri Villautham Nagu (A5), Shri Venkatesan BalasubramaniyanF(A6) and Shri Vijay Kumar L (A7), who were possessing / carryingthe “Ketamlne Hydrochloride” a psychotropic substance incommercial quantity in their car bearing No. KA-39-M-2117 fromOmerga to Chennai and the same was seized on 11.01.2018.Hence, they had committed an offence under Section 8(c) andG9A are liable to be punished under Section 21(c), Section 22(c),Section 23(c) read with Section 28, Section 29 and Section 38 ofthe NDPS Act, 1985.

111. Ketamine Hydrochloride seized from accused No. 5, 6 and7 under Mahazar dated 11.01.2018, under Mahazar dated11/ 12.01.2018 and under 11.02.2018 have been submitted to theH

Hon’ble Court vide various Memos in a sealed cover are liablefor confiscation under the provisions of Section 60, 61, 62 and 63of the NDPS Act. This Hon’ble Court may be pleased to passappropriate order relating to the confiscation of the above saidgoods in terms of Section 63 of the NDPS Act.

9. The High Court in the impugned judgment noted that chargesheet having been filed on 06.07.2018, i.e., well within the stipulatedperiod of 180 days, the accused could not have been granted the benefitunder Section 167 Cr.P.C. In paragraph 8, following has been observedby the High Court:- “8. ……………….It can be culled out from the record that filingof the single charge sheet on 06.07.2018 before the AdditionalSessions Court, Omerga, was not brought to the notice of theMetropolitan Sessions Court, Hyderabad for whatever reason maybe. Since the factual aspect remains that the charge sheet wasfiled on 06.07.2018 i.e., well within the stipulated period of 180days, the respondents-accused are not entitled for the benefit underSection 167(2) Cr.P.C. Under these circumstances, therespondents-accused are entitled for bail in accordance with theprovisions laid down under the NDPS Act read with Sections 437and 439 Cr.P.C. and accordingly they are entitled to work out theremedies under the said provisions.”

10. It is true that the bail granted under Section 167(2) Cr.P.c.could have been cancelled under Section 439(2) Cr.P.C.. This Court inPandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008)17 SCC 745 while considering the case where bail granted under Section167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learnedSessions Judge after noticing the facts upheld the order under Section439 Cr.P.C. cancelling the bail. Paragraphs 7, 8 and 9 of the judgmentare as follows:- A

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A“7. In the present case, against the accused, FIR for the offencespunishable under Sections 302, 307, 147, 148, 149, 324 and 323IPC and Section 27 of the Arms Act was registered. The accusedwere arrested on 28-10-2000 and were produced before theJudicial Magistrate. They filed an application under Section 167(2)CrPC on 25-1-2001 for releasing them on bail on the ground thatBcharge-sheet was not submitted within the stipulated time and thecourt released them on bail on the same date by exercisingjurisdiction under Section 167(2) CrPC. The State filed anapplication on 31-1-2001 under Section 437(5) and Section 439(2)CrPC before the Sessions Judge, Kolhapur for cancellation ofCbail. Before the said application could be finally disposed of, theaccused preferred an application Ext. 8 submitting that anapplication under Sections 437(5) and 439(2) was not maintainablebefore the Sessions Court and the State ought to have approachedthe learned Magistrate for cancellation of the bail. That applicationwas rejected by the learned Additional Sessions Judge by orderDdated 3-3-2001. Thereafter, the learned Additional Sessions Judgeby judgment and order dated 2-5-2001 allowed the said applicationand set aside the order passed by the Judicial Magistrate on theground that the accused were released on the 89th day, that is,before expiry of 90 days.

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8. In our view, it appears that the High Court has committed basicerror in not referring to the provisions of Section 439(2) CrPCwhich specifically empower the High Court or the Court of Sessionto cancel such bail. Section 439(2) reads as under:

“439. Special powers of High Court or Court of Sessionregarding bail.—(1)***

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(2) A High Court or Court of Session may direct that any personwho has been released on bail under this Chapter be arrestedand commit him to custody.”

G9. The proviso to Section 167 itself clarifies that every personreleased on bail under Section 167(2) shall be deemed to be soreleased under Chapter XXXIII. Therefore, if a person is illegallyor erroneously released on bail under Section 167(2), his bail canbe cancelled by passing appropriate order under Section 439(2)CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] hasHalso clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancellingthe bail on the ground that the accused has misconducted himselfor because of some new facts requiring such cancellation.”

11. It is not even submitted before us that Omerga Court wherecommon complaint has been filed against the accused had no jurisdictionto inquire and try the offence. It was due to some miscommunicationthat at the time when Court passed the order on 12.07.2018, the factumof filing of combined complaint dated 06.07.2018 was not brought intothe notice of Special Court, Hyderabad. Although, letter of the samedate 12.07.2018 was received by Special Court, Hyderabad from SpecialCourt, Omerga praying for custody of the appellants, which custodywas also granted by the Special Court, Hyderabad on the next day, i.e.,13.07.2018. All these facts were brought before the High Court inapplication filed under Section 439(2) Cr.P.C. and the High Court hasrightly cancelled the bail order dated 12.07.2018. We do not find anyerror in the order of the High Court cancelling the bail order dated12.07.2018.

12. It is true that two offences, one at Hyderabad being at theinstance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registeredand another case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore,Zonal Unit. A combined complaint taking care of both the offences wasfiled before the Special Court, Omerga as noted above wherein offencescommitted by the accused were also inquired and dealt with. There isample material in the complaint that the transportation of narcoticsubstance started from Omerga, Maharashtra and was being allegedlyto be taken to Chennai and intercepted at Hyderabad. The complaint,which has been brought on the record gives the detailed facts includingthe journey and the interception of appellants at Hyderabad. The combinedcomplaint having been filed on 06.07.2018, i.e., well within 180 days, theHigh Court did not commit any error in cancelling the default bail grantedto the appellants on 12.07.2018.

13. We, thus, are of the view that there is no ground for interferingwith the impugned judgment /order of the High Court. We have notedabove that regular bail application under Section 439 Cr.P.C. was filedbefore the Omerga Court by the appellants, which was withdrawn on25.09.2018, we are of the view that it is open for the appellants to fileregular bail application before Omerga Court under Section 439 Cr.P.C.afresh, which may be considered on merits without being influenced by AB

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Aany observations made by the order passed by the High Court in theimpugned judgment or observations made by us. We further observethat bail application to be filed by the appellants under Section 439 Cr.P.C.be considered and decided expeditiously. The order dated 12.07.2018having been set aside by the High Court, which order having beenconfirmed by this Court, the appellant, Villayutham Nagu is to surrenderBbefore the Special Court, Omerga. All the appeals are dismissed subjectto liberty granted to the appellants as above.

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[2020] 9 S.C.R. 953

JATINDERVEER ARORA & ORS.

v.

STATE OF PUNJAB

(Transfer Petition (Criminal) No. 452 of 2019)

NOVEMBER 25, 2020

[HRISHIKESH ROY, J.]

Code of Criminal Procedure, 1973:

s. 406 – Power under – Scope of – Held: Powers u/s. 406must be exercised sparingly and only in deserving cases – Eachcase has to be decided on its own facts – Apprehension of not gettinga fair and impartial trial cannot be founded on general allegations– Consideration for transfer cannot be just the convenience of thepetitioner, but also of the complainant, witnesses and the prosecution– The transfer would also reflect on the credibility of the judiciary– Facts of the present case do not show that situation in the Statewas not conducive for a fair trial for the prosecution and warranttransfer of the case to another State – However, State is directed toensure safe conduct of proceedings at the trial courts and to provideadequate security to the petitioners.

Dismissing the tranfser petitions, the Court HELD: 1. For transfer of trial from one Court to another,the Court must be fully satisfied about existence of such factorswhich would make it impossible to conduct a fair trial. Generalallegation of surcharged atmosphere is not however sufficient.The apprehension of not getting a fair and impartial trial, cannotbe founded on certain grievances or convenience of the accusedbut the reasons have to be more compelling than that. Nouniversal Rules can however be laid down for deciding transferpetitions and each case has to be decided in the backdrop of thatcase alone. One must also be mindful of the fact that when trial isshifted out from one State to another, it would tantamount tocasting aspersions on the Court, having lawful jurisdiction to trythe case. Hence powers under Section 406 CrPC must beexercised sparingly and only in deserving cases when fair andimpartial trial uninfluenced by external factors, is not at all

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Apossible. If the Courts are able to function uninfluenced by publicsentiment, shifting of trial would not be warranted. [Para 11][962-B-D]

Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4SCC 167 : Abdul Nazar Madan v. State of T.N. & Anr.B(2000) 6 SCC 204 : [2000] 3 SCR 1028; R. BalakrishnaPillai v. State of Kerala (2000) 7 SCC 129 : [2000] 3Suppl. SCR 26; Zahira Habibullah H. Sheikh v. Stateof Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050;Sri Jayendra Saraswathy Swamigal (II), T.N. v. State ofT.N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR 556;CCaptain Amrinder Singh v. Prakash Singh Badal & Ors.(2009) 6 SCC 260 : [2009] 9 SCR 194; Nahar SinghYadav & Others v. Union of India & Ors. (2011) 1 SCC307 : [2010] 13 SCR 851; Umesh Kumar Sharma v.State of Uttarakhand (2020) SCC OnLine SC 845 -Drelied on.

2. The projection of surcharged atmosphere is not borneout by the corresponding reaction of the petitioners, who are outon bail. Being residents of Punjab, they continue to reside attheir usual place and are going about their routine affairs. If theirEthreat perceptions were genuine, they could not have gone abouttheir normal ways. For this reason, the Court is inclined to believethat the atmosphere in the State does not justify shifting of thetrial venue to another State. [Para 13][962-G; 963-A]

3. While there is a specific instance of one of the defenceFlawyer disassociating himself from the case on personal ground,the two regular lawyers continue to defend the accused withoutany break or difficulty. This would suggest that petitioners defenceis not being compromised in Punjab and they are receivingadequate legal assistance. [Para 5][960-B-C]

G4. The solitary instance pertaining to one of the petitionersis banked upon by all the other petitioners without any basis.The order sheet of the proceedings reflects clearly that theMagistrate administered caution and duly satisfied himself to H

ensure that legal procedures were followed and statement wasfree and not under pressure. [Para 6][960-D-E]

5. Insofar as the death of one of the accused in jail isconcerned, the projection of the State is that he was murdered byjail inmates undergoing life imprisonment in some other casesand for this incident FIR is registered, chargesheet has beenfiled and trial has commenced. It is not possible at this stage tosay if this incident has any link with the other cases or it is astandalone event. Barring this issue, none of the petitioners haveraised any grievances before the court or before the police andinference must accordingly will have to be drawn against theirtransfer plea. [Para 14][963-C-D]

6. The sacrilege incidents occurred in 2015 and it has beenmore than 2 years since the petitioners were arrayed as accusedin the cases. During this long period, no complaint has been madeby the petitioners of any threat to their security or to theirassociates. The zimni orders of the Trial Court does not reflectany bias faced, either by the accused or their family. [Para 14][963-B-C]

7. The matter emanates from the State of Punjab and theaccused, the witnesses and the prosecutors are all from the State.If the trial is shifted out, all of them will face difficulties. TheState’s pleading shows that those accused who have a threatimplication, have been provided personal security by the districtpolice. Elaborate arrangements have been made on orders ofthe State’s DGP and on the trial date, additional force are deployedin the concerned Courts, to ensure safety of the petitioners andall other stakeholders. [Para 8][961-D-E]

8. Out of the six cases, the trial in one case is at the stageof final arguments. The other five cases are at the stage ofevidence or charge stage. It will therefore not be fair to theprosecution, the State and the witnesses who are yet to testify, toshift the proceeding without compelling reasons as it will inevitablydelay the trial. Convenience of all parties should be looked atand not just the party which is seeking transfer. [Para 15][963-E-F]

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A9. In relation to the FIR in respect of one of the accused,application with prayer to shift the case from JMIC, Phul to anyother Court in Bhatinda was filed by the complainant. The accusedhad opposed the transfer application. In such circumstances, thecontrary plea for shifting of trial venue made before this Court,would suggest that the Petitioners have taken conflicting standBon shifting of trial venue before different forums. [Para 16][963-G-H]

Sri Jayendra Saraswathy Swamigal (II), T.N. v. State ofT.N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR 556;Zahira Habibullah H. Sheikh v. State of Gujarat (2004)C4 SCC 158 : [2004] 3 SCR 1050 – distinguished.

10. From the available material, the Court cannotreasonably conclude that the situation in Punjab is not conducivefor a fair trial for the petitioners. The few instances may suggestheightened feelings amongst different groups, but they do notDcall for transfer of proceedings to another State. [Para 18][964-D-E]

11. Moreover, it cannot just be the convenience of thepetitioner but also of the Complainant, the Witnesses, theProsecution. The larger issue of trial normally being conductedEby the jurisdictional Court must also weigh on the issue. Whenrelative convenience and difficulties of all the parties involved inthe process are taken into account, the conclusion is inevitablethat no credible case for transfer of trial to alternative venuesoutside the State of Punjab is made out, in the present matters.F[Para 19][964-E-F]

12. The transfer of trial from one State to another wouldinevitably reflect on the credibility of the State’s judiciary. Exceptfor compelling factors and clear situation of deprivation of fairjustice, the transfer power should not be invoked. The presentGbunch of cases are not perceived to be amongst such exceptionalcategories. [Para 21][965-A]

13. The alternative plea that if the Trials cannot be shiftedto Delhi, they should be shifted to Chandigarh, was not thepleaded case of the Petitioners. The suggested alternate venueHis Punjab’s capital and even though Chandigarh is an Union A

Territory, the population pattern in the city is like the rest ofPunjab. Such alternative plea on the grounds pleaded in thesematters cannot therefore be countenanced. [Para 20][964-G-H]

14. Nonetheless, the State as assured to this Court, mustmake all arrangement to ensure safe conduct of proceedings atthe trial courts and also provide adequate security to thepetitioners and their associates as might be warranted from thesecurity perspective. [Para 22][965-B]

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Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Transfer Petition(Criminal) No. 452 of 2019.

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Petitions filed under Section 406 of the Code of Criminal Procedure,1973 read with Order XXXIX of the Supreme Court Rules, 2013 fortransfer of Chi No. 3/2019.

With

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Transfer Petition (Criminal) Nos. 458, 459, 460, 461 and 462 of2019.

Ms. Monalisa Kosaria, B.Shravanth Shanker, Ms. Jaspreet Gogia,Karanvir Gogia, Ms. Shivangi Singhal, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. These petitions are filed under Section 406 of the Code ofCriminal Procedure, 1973 (for short “the CrPC”) read with Order XXXIXof the Supreme Court Rules seeking transfer of Trial of criminal casesBpending before the Courts at Bhatinda, Moga and Faridkot districts tocompetent Court in Delhi or to any nearby State, out of Punjab.

2.1 Mr. Ranjit Kumar, the learned Senior Counsel for the petitionerssubmits that as the matters relate to alleged sacrilege of the holy book,Shri Guru Granth Sahibji in different places in Punjab, deep anguish andCbitterness is generated amongst a particular religious group, who formmajority of the population in the State of Punjab and therefore the accusedwho are members of the Dera Sacha Sauda sect, are facing bias andprejudice and are unlikely to get a fair trial in the face of strong presumptionof culpability.D

2.2 According to the petitioners, the situation in Bhatinda and otherplaces is communally surcharged where, fair trial is a near impossibility.In support of such contention, the Senior Counsel refers to the murderof the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the NabhaCentral jail, which according to Mr. Kumar, clearly shows the threat tothe lives of other co-accused in the hands of the radical elements in theEState.

2.3 Moreover, public appeals have been made to socially boycottthe accused and also to those dealing with them, such as lawyers, doctorsand taxi drivers and these developments would indicate the seriousFdifficulties faced by the accused in conducting theirdefence.

2.4 The learned Senior Counsel submits that a forced statementunder Section 164 CrPC was obtained from the petitioner JatinderveerArora and this would suggest that in Punjab, an unbiased prosecutioncannot be ensured.

2.5 The mass gathering in the court premises where these casesare listed on the given dates, is highlighted by the Senior Counsel toemphasize the threat to the life of the accused since adequatearrangement and security has not been provided by the State.

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3.1 Representing the State of Punjab, Mr. Harin P Raval, learnedSenior Counsel on the other hand argues that no case for transfer ismade out by the petitioners.The Senior Counsel submits that althoughpetitioners speak of surcharged atmosphere and threat to their life inPunjab, after getting bail, they continue to reside and conduct their affairsin their respective place without any threat or hindrance. The StateCounsel then submits that petitioners have not suffered any prejudice inconducting their defence as the same two lead counsels continue torepresent them since beginning. That apart, no specific instance, of denialof medical or transportation service or legal assistance is brought to theCourt’s notice, notwithstanding the so called public appeal made by fewpeople.

3.2 According to the State’s lawyer, the petitioners have suppressedmaterial facts. Moreover, one solitary incident of Section 164 CrPCstatement of one of the petitioners i.e. Jatinderveer Arora (CHI No.3/2019) is being relied upon by the other petitioners to project prejudicealthough they are involved in other cases. It is then pointed out thatJatinderveer Arora while in judicial custody, volunteered to record hisstatement 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 andthe learned Magistrate directed the SSP, Bhatinda to ensure safety tothe accused. Later, on 01.12.2018, the same person voluntarily recordedhis statement before the Magistrate and this is now part of the courtrecords. On that occasion, the concerned Magistrate administered cautionand satisfied himself that the petitioner was not pressurized or threatenedand made a voluntary disclosure.

3.3 On the security front, Mr. Raval submits, on instruction fromState DGP, that fool proof arrangements will be made and security willbe provided, to allay all apprehensions of the petitioners.

3.4 The difficulties for the witnesses and the prosecution, if thetrial venue is to be shifted out of Punjab, is also highlighted from therespondents side.

4. The question to be answered here is whether the situation inPunjab is so communally surcharged that the petitioners will be deprivedof fair trial, if they are to be conducted within the State. According to thepetitioners, the situation in the State is surcharged and non-conducive A

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Afor them. Yet, as can be seen, the petitioners have not moved out andcontinue to reside in the usual place of residence in the State and doingtheir work/business in a routine manner. No specific instance of prejudicehas been brought to this Court’s notice on account of social boycott callor appeal to the Medical professionals or taxi operators, to deny co-operation. Most particularly, no complaint is lodged before the court orBto the authorities about any threat or intimidation.

5. While there is a specific instance of one of the defence lawyerdisassociating himself from the case on personal ground, the two regularlawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accusedsince January, 2019 without any break or difficulty. This would suggestCthat petitioners defence is not being compromised in Punjab and theyare receiving adequate legal assistance.

6. The case materials reflect that one of the petitioners,Jatinderveer Arora on the first occasion, backed off from recording hisSection 164 CrPC statement on 22.11.2018, but the same personDvoluntarily recorded his statement on 01.12.2018 and this is now part ofthe trial Court records. This solitary instance pertaining to the CHI No.3/2019 (relating to one of the petitioners of the TP(Crl.) No.452/2019), ishowever banked upon by all the other petitioners without any basis. Theorder sheet of the proceedings reflects clearly that the MagistrateEadministered caution and duly satisfied himself on both occasions toensure that legal procedures were followed and statement was free andnot under pressure. The recording of the statement on 01.12.2018 in theCHI No.3/2019 is found mentioned in the additional affidavit filed by thepetitioner.F7. It would be appropriate at this stage to note the cases for whichthese transfer petitions are filed and the involvement of the petitioners inwhich of those. The following chart will reflect this and the earlier stageof those cases:

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JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB[HRISHIKESH ROY, J.]

8. This Court is conscious that the matter emanates from theState of Punjab and the accused, the witnesses and the prosecutors areall from the State. If the trial is shifted out, all of them will face difficulties.The State’s pleading shows that those accused who have a threatimplication have been provided personal security by the district police.The learned Senior Counsel for the State in the context submits thatelaborate arrangements have been made on orders of the State’s DGPand on the trial date, additional force are deployed in the concernedCourts, to ensure safety of the petitioners and all other stakeholders.Moreover, as the sacrilege incidents occurred in 2015, with passage oftime, the atmosphere is expected to have mellowed down considerably.This can also be gathered from the fact that the petitioners who reside indifferent districts in Punjab are doing their work or business in a routinemanner, without any inhibition.

9. In such a scenario, it has to be evaluated whether fair trial is animpossibility, before the Courts in Punjab or is it a case of mereapprehension by the accused.

10. In support of their rival contentions, learned Senior CounselMr. Ranjit Kumar for the petitioners and Mr. Harin P Rawal, the learnedSenior Advocate for the State of Punjab, have relied on Maneka SanjayGandhi Vs. Rani Jethmalani[1], Abdul Nazar Madan Vs. State of T.N.& Anr.[2], R. Balakrishna Pillai Vs. State of Kerala[3], Zahira 1 (1979) 4 SCC 1672 (2000) 6 SCC 2043 (2000) 7 SCC 129

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AHabibullah H. Sheikh Vs. State of Gujarat[4], Sri Jayendra SaraswathySwamigal (II), T.N. Vs. State of T.N.[5], Captain Amrinder Singh Vs.Prakash Singh Badal & Ors.[6] and Nahar Singh Yadav & Others Vs.Union of India & Ors[7].

11. The proposition of law that emanates from the above judgmentsBis that for transfer of trial from one Court to another, the Court must befully satisfied about existence of such factors which would make itimpossible to conduct a fair trial. General allegation of surchargedatmosphere is not however sufficient. The apprehension of not getting afair and impartial trial cannot be founded on certain grievances orconvenience of the accused but the reasons have to be more compellingCthan that. No universal Rules can however be laid down for decidingtransfer petitions and each one has to be decided in the backdrop of thatcase alone. One must also be mindful of the fact that when trial is shiftedout from one State to another, it would tantamount to casting aspersionson the Court, having lawful jurisdiction to try the case. Hence powersDunder Section 406 CrPC must be exercised sparingly and only indeserving cases when fair and impartial trial uninfluenced by externalfactors, is not at all possible. If the Courts are able to function uninfluencedby public sentiment, shifting of trial would not be warranted.

12. Analyzing the earlier precedents on the issue, this Court inEUmesh Kumar Sharma Vs. State of Uttarakhand[8], stated the legalposition as under:- “20. The above legal enunciations make it amply clear that transferpower under section 406 of the Code is to be invoked sparingly.Only when fair justice is in peril, a plea for transfer might beFconsidered. The court however will have to be fully satisfied thatimpartial trial is not possible. Equally important is to verify that theapprehension of not getting a level playing field, is based on somecredible material and not just conjectures and surmises.”

13. Here the projection of surcharged atmosphere is not borneout by the corresponding reaction of the petitioners, who are out on bail.GBeing residents of Punjab, they continue to reside at their usual place 4 (2004) 4 SCC 1585 (2005) 8 SCC 7716 (2009) 6 SCC 2607 (2011) 1 SCC 307H8 2020 SCC OnLine SC 845

and are going about their routine affairs. If their threat perceptions weregenuine, they could not have gone about their normal ways. For thisreason, the Court is inclined to believe that the atmosphere in the Statedoes not justify shifting of the trial venue to another State.

14. We must also be mindful of the fact that the sacrilege incidentsoccurred in 2015 and it has been more than 2 years since the petitionerswere arrayed as accused in the cases. During this long period, nocomplaint has been made by the petitioners of any threat to their securityor to their associates. The zimni orders of the Trial Court does not reflectany bias faced, either by the accused or their family. Insofar as thedeath of the accused Bittoo in Nabha jail,the projection of the State isthat he was murdered by jail inmates undergoing life imprisonment insome other cases and for this incident FIR under Section 302, 34, 120BIPC is registered in PS Sadar, Nabha, chargesheet has been filed andtrial has commenced. It is not possible at this stage to say if this incidenthas any link with the other cases or it is a standalone event. Barring thisissue, none of the petitioners have raised any grievances before thecourt or before the police and inference must accordingly will have to bedrawn against their transfer plea.

15. The learned State counsel informs the Court that out of thesix cases mentioned in the chart (not up-to-date), the trial in one case(FIR 79/2015- State Vs. Prithvi Singh) is at the stage of final arguments.The other five cases are at the stage of evidence or charge stage. It willtherefore not be fair to the prosecution, the State and the witnesses whoare yet to testify, to shift the proceeding without compelling reasons as itwill inevitably delay the trial. One must also remember that convenienceof all parties should be looked at and not just the party which is seekingtransfer.

16. Another vital aspect, as has been pointed out by the statecounsel, will bear consideration. The Complainant Iqbal Singh, in relationto the FIR 161/15(Jatinderveer Arora Vs. State of Punjab) filedapplication with prayer to shift the case from JMIC, Phul to any otherCourt in Bhatinda. The said application came to be dismissed by thelearned Chief Judicial Magistrate, Bhatinda by an order dated 04.02.2020,wherein it has been recorded that the accused opposed the transferapplication. In such circumstances, the contrary plea for shifting of trialvenue made before this Court would suggest that the Petitioners havetaken conflicting stand on shifting of trial venue before different forums.

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A17. Mr. Ranjit Kumar, the learned Senior Counsel has heavilyrelied upon two judgments of this Court [Sri Jayendra SaraswathySwamigal (II) (supra) and Zahira Habibullah H. Sheikh (supra)] wherechange of trial venue was allowed. In the present matter, although thecase could generate strong feelings between the opposing groups, nosuch overwhelming factors as was visible in Sri Jayendra SaraswathyBSwamigal (II)(supra) are brought to light by the learned counsel. In thesecond case i.e. Zahira Habibullah H. Sheikh (supra), the Court foundthat the State was conducting the investigation in a partisan manner andlikelihood of miscarriage of justice was visible. The subversion of justicedelivery system in the concerned State was seen and congenialCatmosphere was found missing. For such compelling factors, the Courtdirected that re-trial shall be done by a Court under the jurisdiction of theBombay High Court and public prosecutor be changed. However, thecircumstances in the present matters cannot be equated with those noticedin Zahira Habibullah H. Sheikh (supra) or in Sri JayendraSaraswathy Swamigal (II) (supra). Therefore, I am of the consideredDopinion that similar relief cannot be granted in the present proceedings.

18. From the available material, this Court cannot reasonablyconclude that the situation in Punjab is not conducive for a fair trial forthe petitioners. The few instances mentioned by the petitioners’ counselmay suggest heightened feelings amongst different groups but they doEnot in my estimation, call for transfer of proceedings to another State.

19. Moreover, it cannot just be the convenience of the petitionerbut also of the Complainant, the Witnesses, the Prosecution. The largerissue of trial normally being conducted by the jurisdictional Court mustalso weigh on the issue. When relative convenience and difficulties ofFall the parties involved in the process are taken into account, the conclusionis inevitable that no credible case for transfer of trial to alternative venuesoutside the State of Punjab is made out, in the present matters.

20. The final submission of Petitioners’counsel was that, if theTrials cannot be shifted to Delhi, they should be shifted to Chandigarh.GThis was not the pleaded case of the Petitioners. The suggested alternatevenue is Punjab’s capital and even though Chandigarh is an UnionTerritory, the population pattern in the city is like the rest of Punjab.Such alternative plea on the grounds pleaded in these matters cannottherefore be countenanced.

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21. The transfer of trial from one state to another would inevitablyreflect on the credibility of the State’s judiciary. Except for compellingfactors and clear situation of deprivation of fair justice, the transfer powershould not be invoked. The present bunch of cases are not perceived tobe amongst such exceptional categories.

22. For the above reasons, these cases are found devoid of merit.Nonetheless, the State as assured to this Court, must make all arrangementto ensure safe conduct of proceedings at the trial courts and also provideadequate security to the petitioners and their associates as might bewarranted from the security perspective. It is however made clear thatthe observations in this judgment are only for disposal of these petitionsand should have no bearing for any other purpose.

23. Subject to the aforesaid cautionary observation, the cases aredismissed.

Transfer Petitions dismissed.

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