SUNIL SAINI & ORS. versus THE STATE OF HARYANA & ORS. on 30 January 2023

JUDGMENT

(1) The relief sought for in the transfer petition is as follows:

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D“(a) Transfer the case bearing S.C. No.285 of 2016arising out of FIR No.116 dated 22.02.2016 u/S 148, 149, 186,302, 307, 435, 436, 449, 395, 323, 326 IPC and Section 25 ofthe Arms Act, 1959, Police Station-Jhajjar, titled “State ofHaryana versus Sandeep @ Kala & Anr.”, pending before theCourt of Additional Sessions Judge, Jhajjar to the CompetentECourt in New Delhi.”

(2) The case of the petitioners in a nutshell is that an agitationwas carried out by members of the Jat community in the State ofHaryana in 2016. They sought reservation in Government jobs andeducational institutions.During thisagitation, the members of JatFcommunity vandalized and committed acts of arson which allegedlycaused huge irreparable damage to the petitioners by setting theirhouses, godowns and their every belonging on fire.

(3) An allegation is made against an advocate who is allegedto be very influential and who had remained President of the Bar. ItGis alleged that because of this connivance, 2-3 material witnesseshave been forced to turn hostile as well as material documentaryevidence has not been placed on record.

(4) It is their further case that an application was filed underSection 319 of the Code of Criminal Procedure, 1973 to summon theHadvocate and his son but their application was not countersigned by

the Public Prosecutor. The petitioners, therefore, knocked at the doorof this Court by filing this petition to get their case transferred toanother state so that interest of justice is sub-served.

(5) Counter Affidavit as well as an application to file additionaldocuments have been filed by respondent Nos. 2 & 3. In theapplication for additional documents, it is sought to be establishedthat, in fact, the first petitioner before this Court was examined asPW-2 and he has deposed in his deposition that he could not identifywho the accused are. PW-15 purported to identify one of the accused.At the instance of PW-15, an application was filed under Section 319of the Cr.P.C. to summon certain persons (advocate in question),which has been rejected.

(6) Learned counsel for the petitioners, in fact, would submitthat the order rejecting the application under Section 319 has beenupheld by the High Court. The learned counsel for the petitionerswould point out that it is a gross case where there is a completebreak down of the law and order resulting in gross damage havingbeen caused. It is also pointed out that two persons lost their lives.

(7) It is their case that there is no chance for the petitionersgetting justice in the Courts in the State of Haryana, having regard tothe pervasive influence of the community in question. What is more,even the prosecuting team is not acting in a fair and fearless manner.

(8) As of today, it is brought to our notice that 42 witnesseshave been examined. Learned counsel for the petitioners would pointout that at this stage, atleast this Court may consider directing thatan independent and upright Special Prosecutor be appointed so thatthe needful is done and there is no sabotage of the proceedings. Hewould submit that a case may exist for recalling witnesses who havealready been examined.

(9) Learned counsel appearing on behalf of the first respondent-State, on the other hand, would point out that the Public Prosecutorhas been appointed on 13.05.2022. He is the person who has been aPublic Prosecutor since 29.03.2003 and conducted nearly 500 casesunder Section 302 IPC, two cases arising out of the agitation andalso two other cases of honour killings. What is more important, it ispointed out that there are no allegations levelled against the PublicProsecutor who has been appointed as aforesaid.

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(10) Learned counsel for the petitioners have raised anothercomplaint as well. It is pointed out that on a regular basis, thepetitioners who are witnesses have been under threats by the other-side. He would submit that despite a request being made, protectionhas not been accorded.

B(11) Learned counsel for the first respondent-State, on the otherhand, points out that there is a Witness Protection Scheme, 2018. Awitness who is intimidated will always have a right to write to thepresiding Judge or Public Prosecutor or the Superintendent of Policeof concerned District. Only one request has been received on thelast date of hearing, it is submitted.C

(12) As far as transferring the case out of the State isconcerned, we would think that due to the passage of time and thefact that nearly 42 witnesses have already been examined, we donot think that, as things stand, the case is to be transferred.

D(13) We must pause here for a moment and however makethese observations:

The State exists on the basis of implied consent of the Governed.The principal reason for people to come together under the organizationof the state is the fundamental principle that the State will be in aEposition to always protect the lives and properties of the citizens.This is the fundamental unalterable premise for the creation, existenceand preservation of any civilized State. It is all the more so, when theState is functioning under a written constitution which guaranteesfundamental rights such as ours. It is accordingly that rule of law isrightfully treated as part of the basic structure of the Constitution. ItFis the bounden duty of any State to ensure that the lives of its citizensand other persons are at all times protected. The same goes for theirproperties. This is the elementary function of the State. We are notat this stage called upon to deal with the duties of the State with themantle of a welfare State falling upon it. Even if this indispensableGfunction to constitute a State is not performed, it would be a lamentablestate of affairs.

(14) The principal mechanism for vindicating the rule of lawand upholding the rights of the citizens is the judicial branch of theState. One of the fundamental methods by which Rule of law ispreserved consists of sanctions of which the criminal law is theH

principal branch. The criminal courts must be allowed to function ina manner by which at the end of the day the guilty are punished andinnocent are exonerated.

(15) The role of the Public Prosecutor in all of this is paramount.He is duty bound to always act in a fair manner; not of course,to secure conviction by hook or crook but at the same time, it is hisduty to fearlessly adduce evidence so that those who are guilty donot get away scot free. Unless this is done, it is very likely that thecommon man will cease to have faith in the very functioning of theState itself. It is therefore, integral to the upholding of the integrity ofthe State itself that the access to justice which is also comprehendedin the principle that an offence is committed against the State andthe State therefore prosecutes the offender is always borne in mind.

(16) Every attempt which succeeds at the hands of anyonewhereby the efficacy of criminal law is diluted, will remove the veryedifice of the rule of law fatally.

(17) It is, therefore, of the utmost importance that in the casein hand, the Special Public Prosecutor who has been appointed willhopefully uphold the highest principles and play the difficult role sothat while the innocent are not convicted, the guilty do not escapedue punishment.

(18) In the facts of this case, noticing that the Special PublicProsecutor has been appointed only recently and not being unmindfulalso of his credentials which have been brought to our notice, at thisstage we are not persuaded to direct that another person be appointedin his place. However, this is not to be the end of the destiny of thiscase. Accordingly, we dispose of the petition as follows:

(i) It will be open to the petitioners to approach theDirector of Prosecution in case they believe that even theSpecial Public Prosecutor appointed is not discharging hisduties in a fair and impartial manner.

(ii) It is thereupon for the Director(Prosecution) tolook into the matter and take appropriate steps. As far asprotection to the witness is concerned, it will be open to thepetitioners to move the presiding Judge or Special PublicProsecutor or the Superintendent of Police of the concerned A

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1110SUPREME COURT REPORTS

ADistrict seeking protection in which case needful shall bedone in accordance with law.

(iii) Needless to say that any observation which wehave made in this judgment shall not stand in the way of theCourt taking a decision on the basis of the evidence and onBthe basis of law applicable.

The transfer petition is disposed of accordingly.

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Nidhi Jain

(Assisted by : Shashwat Jain, LCRA)

Transfer petition disposed of.

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