JAHID SHAIKH & ORS. Vs STATE OF GUJARAT & ANR.
Bench: ALTAMAS KABIR,CYRIAC JOSEPH, , ,
Case number: Transfer Petition (Crl.) 55 of 2010
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL) NO.55 OF 2010
JAHID SHAIKH & ORS. … PETITIONERS Vs.
STATE OF GUJARAT & ANR. … RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, J.
1. This Transfer Petition has been filed by one
Jahid and 62 other Petitioners under Section 406 of
the Code of Criminal Procedure for transfer of
Sessions Case No.38 of 2009 pending before the
Special Judge, Ahmedabad, for trial outside the
State of Gujarat.
2. The aforesaid Sessions Case arises out of FIR
Nos.1-236 of 2008 of Shahibaug Police Station and
various other FIRs lodged with different Police
Stations in the State of Gujarat. Apart from FIR
Nos.I-236 of 2008 of Shahibaug Police Station, the
aforesaid Sessions Case No.38 of 2009 also involves
the following FIRs in which the Petitioners have
been implicated :-
(a) I-203 of 2008, I-204 of 2008, I-205 of 2008 and I-206 of 2008 of Maninagar Police Station;
(b) I-338 of 2008 and I-339 of 2008 of Odhav Police Station;
(c) I-400 of 2008 and I-401 of 2008 of Naroda Police Station;
(d) I-321 of 2008 and I-322 of 2008 of Ramol Police Station;
(e) I-190 of 2008 of Isanpur Police Station;
(f) I-218 of 2008 of Vatva Police Station;
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(g) I-273 of 2008 of Amraiwadi Police Station;
(h) I-71 of 2008 of Khadia Police Station;
(i) I-220 of 2008 of Bapunagar Police Station;
(j) I-123 of 2008 of Kalupur Police Station;
(k) I-140 of 2008 of Danilimbda Police Station;
(l) I-181 of 2008 of Sarkhej Police Station;
(m) I-200 of 2008 of Kalol Police Station;
(n) 176 of 2008, 175 of 2008, 179 of 2008 and 180 of 2008 of Kapodra Police Station;
(o) 365 of 2008, 363 of 2008, 364 of 2008, 369 of 2008 and 366 of 2008 of Varacha Police Station;
(p) 203 of 2008 and 208 of 2008 of Katargam Police Station;
(q) 651 of 2008 of Umrah Police Station;
(r) 3019 of 2008 of DCB Police Station;
(s) 208 of 2008 and 209 of 2008 of Mahidharpura Police Station.
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All the aforesaid FIRs have been lodged in
connection with the series of bomb blasts that
occurred in 2008 all over the country in major
cities like Delhi, Mumbai, Jaipur, Ahmedabad and
Bengaluru, killing many and injuring several
others. As a response to the aforesaid blasts which
were declared to be acts of terrorism by the State
Government, a large number of young men belonging
to the Muslim community were arrested both from
within and outside the State of Gujarat.
3. Appearing in support of the Transfer
Petition, learned Advocate, Mr. Prashant Bhushan,
submitted that the Transfer Petition seeking
transfer of the trial of the accused in the
Ahmedabad bomb blast cases, as well as in the cases
relating to planting of bombs in Surat, out of the
State of Gujarat, was necessitated on account of
the attitude and conduct of the local authorities.
Mr. Bhushan submitted that the local police
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authorities, jail authorities and the public
prosecutor had conducted themselves in a manner
which reflects total bias and prejudice against the
accused and the same has created more than a
reasonable apprehension in their mind that they
would not get a fair and free trial in the State of
Gujarat.
4. Among the more glaring examples of bias and
prejudice pointed out by Mr. Prashant Bhushan was
the allegation that charges were framed against the
accused without supplying them with the essential
documents which were required to be supplied under
Section 207 of the Code of Criminal Procedure
(Cr.P.C.), particularly when the majority of the
accused were not being represented through counsel.
Mr. Bhushan submitted that in cases instituted upon
a police report, Section 207 Cr.P.C. makes it
obligatory on the part of the Magistrate to provide
the accused, without delay, free of cost, copies of
the police report, the First Information Report
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recorded under Section 154 Cr.P.C., the statements
recorded under Sub-Section (3) of Section 161
Cr.P.C. of all the persons whom the prosecution
proposed to examine as its witnesses, the
confessions and statements recorded under Section
164 Cr.P.C., as well as any other document or
relevant extract forwarded to the Magistrate with
the police report under Sub-Section (5) of Section
173 Cr.P.C. Mr. Bhushan urged that under Section
227 Cr.P.C. the accused have a right to oppose the
framing of charges on the basis of the evidence
gathered during investigation, which requires the
accused to have copies of all the documents
mentioned in Section 207 of the Code. Mr. Bhushan
submitted that the said right to have the police
papers had been violated by the Respondents,
inasmuch as, most of the accused did not have
access to all the papers at the time of framing of
charges against them. Mr. Bhushan submitted that
those who had been favoured with copies of the
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police papers were unable to understand the same,
as they were in Gujarati which language was not
known to most of the accused, most of them were
from outside the State of Gujarat. Mr. Bhushan
also submitted that the learned Advocates of those
who were provided with copies of the charge-sheets
in Gujarati were barely given four days’ time to
consider the same to prepare their case for
discharge of the accused.
5. Despite the fact that on the date of framing of
charges, many of the accused had not been served
with copies of the charge-sheet and connected
papers, such as the statement of witnesses and
confessional statements of the accused recorded
under Section 164 Cr.P.C., and other documents, and
those who had been served, were served with copies
of the same in Gujarati, the learned Designated
Judge framed charges against the accused persons on
11th January, 2010. Mr. Bhushan submitted that the
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majority of the accused were provided with lawyers
and copies of the charge-sheet and other documents
after charge had already been framed. [Emphasis Supplied] Mr. Bhushan submitted that some of the
accused, who did not receive the said documents,
moved an Application on 15th February, 2010, but the
same was rejected without such copies being
supplied.
6. Mr. Bhushan urged that apart from the above,
one other serious grievance which the accused had,
which has led to the apprehension of bias, was that
the counsel for the accused were not permitted to
meet their clients even for 10 minutes in their
Court chambers, without the police being present,
despite the applications made on behalf of the
accused that they would not be in a position to
speak freely in the presence of the police for fear
of subsequent reprisal at the hands of the police.
Mr. Bhushan submitted that although the Court was
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fully aware of the fact that the accused would not
be able to speak freely about the torture inflicted
on them while in custody, it decided to look the
other way to prevent the learned advocates for the
accused to obtain a true picture of the allegations
made by the accused of torture at the hands of
police while in custody. Mr. Bhushan submitted
that the Court chose to disregard the reality that
after their production in Court, the accused would
have to go back to the custody of police and to
suffer the consequences of their disclosures in
Court. Mr. Bhushan submitted that even in the
light of the serious allegations made against the
police of torture and the evidence in support
thereof, the Court did not think it necessary to
even order an independent investigation to verify
the truth or otherwise of such allegations. Mr.
Bhushan urged that on account of the disinterest
shown by the Courts with regard to the complaints
of torture made by the accused, the jail
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authorities became emboldened and subjected the
accused to other indignities, including the
storming of the barracks of the accused on 27th
March, 2009, and severely beating the inmates
thereof.
7. Mr. Bhushan submitted that several affidavits
had been filed by the relatives of the accused
which revealed the severe physical torture
inflicted on the accused which were supported by
medical reports of doctors who examined the
victims, but despite such evidence, the trial court
did not order an independent probe into the
incident and, instead, sought a report from the
jail authorities who, as it could have been
expected, stated that it was the accused who had
revolted and had to be subdued by the jail
authorities. It was the aforesaid explanation of
the jail authorities which was ultimately upheld by
the Court. Mr. Bhushan submitted that the jail
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authorities had placed reliance on a report by the
Additional Principal Judge into an incident which
had taken place prior to the incident of 27th March,
2009. In other words, the matter referred to in
the order dated 5th December, 2009, passed by the
Gujarat High Court had no connection with the
incident forming the basis of the transfer
petition.
8. Mr. Bhushan contended that apart from the
above, there were several other instances of bias
indicated hereinbelow, which had given rise to the
apprehension in the minds of the accused that they
would not get a free and fair trial as is
guaranteed under Article 21 of the Constitution,
before the learned Designated Judge, namely,
a) On the date of hearing, the Investigating Officer, Mr. Tolia, was seen leaving the Chamber of the learned Designated Judge, which fact was admitted, but was attempted to be
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explained on the ground that such visits were in connection with other matters pertaining to the bomb blast cases. An application made thereafter, requesting the learned Judge to recuse herself from the cases remained undecided.
b) On 15th February, 2010, this Court stayed the proceedings before the Designated Judge and, although, the same was orally conveyed to the learned Judge, she rejected all the applications praying for adjournment, and completed framing of charge and fixed 19th February, 2010, for evidence. Within two weeks thereafter on 21st March, 2010, the Designated Judge also rejected the application
for transit remand for 11 accused to be brought to Delhi for framing of charge in connection with the case pending in Delhi, on the ground that charge had already been framed against them and the trial had been stayed by this Court.
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c) Although, out of 64 accused, 42 were from outside Gujarat from eight different States, copies of the charge-sheet in Gujarati were attempted to be served on some of the accused in a show of compliance with the provisions of Section 173 Cr.P.C. which would not enable the accused to make an effective representation at the time of framing of charge. Even the copies which were served on 22 of the accused, who were Gujaratis, were found to be illegible.
d) The accused were severely prejudiced by the fact that although the orders passed by the Metropolitan Magistrate or the Designated Judge were appealable, it was impossible for them to seek any further relief since the majority of the accused were from outside Gujarat and their cases were being looked after by Legal Aid counsel or by counsel appearing pro bono.
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9. Mr. Bhushan submitted that it is now well-
settled by this Court in the case of Zahira
Habibulla H. Sheikh Vs. State of Gujarat [(2004) 4
SCC 158] and Maneka Sanjay Gandhi & Anr. Vs. Miss
Rani Jethmalani [(1979) 4 SCC 169], etc., that in
the event local communal feelings, which are borne
out from the manner in which the accused were
treated by the police, jail staff and the Courts
are such that they create an atmosphere which is
not conducive to the holding of a fair trial, the
cases should be transferred to a neutral location
in the interest of justice. Mr. Bhushan submitted
that as was held in Maneka Sanjay Gandhi’s case
(supra) and quoted with approval in Zahira
Habibulla H. Sheikh’s case (supra), one of the more
serious grounds which disturbed the conscience of
the Court in more ways than one, is the alleged
absence of a congenial atmosphere for a fair and
impartial trial. Mr. Bhushan submitted that such a
sentiment had been expressed as far back as in 1958
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by Justice Vivian Bose in the case of G.X. Francis
& Ors. Vs. Banke Behari Singh & Anr. [1958 Crl.L.J.
569= AIR 1958 SC 309], where his Lordship observed
that good grounds for transfer had been made out
because of the bitterness of the local communal
feeling and the tenseness of the atmosphere there.
His Lordship also observed that public confidence
in the fairness of a trial held in such an
atmosphere would be seriously undermined,
particularly amongst reasonable Christians all over
India, not because the Judge was unfair or biased, but because the machinery of justice is not geared to work in the midst of such conditions. [Emphasis Supplied]
10. In support of his aforesaid contention, Mr.
Prashant Bhushan also referred to the decisions of
this Court in K. Anbazhagan Vs. Supdt. Of Police
[(2004 (3) SCC 767], Surendra Pratap Singh Vs.
State of U.P. & Ors. [(2010) 9 SCC 475], and
Gurcharan Dass Chadha Vs. State of Rajasthan
15
[(1966) 2 SCR 678 = AIR 1966 SC 1418]. Mr. Bhushan
submitted that the law as settled by this Court for
transferring a trial did not require the Petitioner
to prove that he would be deprived of a free and
fair trial, but the test is whether there are
circumstances which create a reasonable
apprehension that he might not get a free and fair
trial. Learned counsel further submitted that the
contention of the State that the case was no longer
before the Metropolitan Magistrate and that even
the Designated Judge had since been changed, was of
little consequence, since trial by a different
Judge would not restore the invaluable rights which
had been denied to the accused at the stage of
framing of charge.
11. Mr. Prashant Bhushan submitted that in the
circumstances indicated, it was only just and
proper that the Transfer Petition be allowed and
that Sessions Case No.38 of 2009 pending before the
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Special Judge, Ahmedabad, be transferred outside
the State of Gujarat for trial.
12. Appearing for the State of Gujarat and the
Inspector General of Prisons, Ms. Hemantika Wahi,
learned Advocate, strongly opposed the Transfer
Petition and contended that it was only after
intensive investigation that charge-sheets had been
filed against the accused persons who had travelled
to different parts of Gujarat as a part of a
criminal conspiracy under false and vexatious names
and planted bombs at different locations in
thickly-populated public places to cause the
maximum amount of damage and terror. It was
submitted that the allegation made relating to the
alleged bias and/or lack of confidence in getting a
free and fair trial before the Magistrate and the
Designated Sessions Judge, was entirely without
foundation, as were the allegations also made
against the Jail Authorities. Ms. Wahi submitted
that a few orders, even if held to be incorrect,
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could not be a ground for transferring the entire
prosecution out of the State of Gujarat as that
would lead to various difficulties for the
prosecution in producing witnesses at the time of
trial. Ms. Wahi submitted that there were a large
number of witnesses in respect of the cases
relating to Ahmedabad and Surat and that it would
be impossible for such a large number of witnesses
to be produced before a Court outside the State of
Gujarat for giving evidence before a Court where
the language used was not Gujarati. Apart from
the above, in all the offences which had been
consolidated in one Sessions Case, there were 144
charge-sheets/supplementary charge-sheets, each
containing on an average 2000 to 3000 pages. It
was submitted that if the prayer made in the
Transfer Petition was allowed, it would result in
complete injustice, as it was most likely that the
trial would end in acquittal of the accused.
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13. Ms. Wahi also contended that the allegation of
bias made against the Magistrate or Sessions Judge
was no longer relevant since the matter had already
been committed by the Magistrate to the Court of
Sessions while the learned Sessions Judge had since
been elevated as a Judge of the Gujarat High Court
and the trial would be conducted by a Judge other
than the said Judge against whom the allegation of
bias had been made. Ms. Wahi submitted that it was
not as if the Petitioners were aggrieved by the
entire judiciary in the State, inasmuch as, such an
allegation would be entirely misplaced and in the
changed circumstances the arguments advanced in
favour of transfer of the Sessions Case outside the
State of Gujarat could no longer be justified and
were liable to be rejected.
14. Ms. Wahi submitted that the decision in Zahira
Habibulla H. Sheikh’s case (supra) was on a
completely different set of facts, and, in any
event, each case would have to be treated on its
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own set of facts and merits. Even the allegation
of torture in custody has not been proved to the
satisfaction of the Court.
15. Ms. Wahi submitted that the case attempted to
be made out on behalf of the Petitioners for
transfer of the Sessions Trial outside the State of
Gujarat, is based on suppression of material facts
relating to the alleged non-supply of charge-sheet
papers. It was urged that the same had been
refused despite having been offered to the
Petitioners and that an opportunity was duly given
to the Petitioners to engage Advocates of their
choice on their refusal to accept legal aid as
offered by the Court or even from the State Legal
Services Authority. In fact, most of the accused
persons subsequently engaged Advocates of their
choice to represent and defend them at the time of
trial, which fact had been withheld from the Court.
Ms. Wahi submitted that all the allegations made by
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the Petitioners against the Respondents were
entirely false and merited rejection.
16. Having regard to the nature of the relief
sought for by the Petitioners, we have considered
the submissions made on behalf of respective
parties and the materials on record with care and
caution. It appears to us that at the initial
stages of the investigation and filing of charge-
sheets some amount of bias could well have been
detected. However, once the matter had gone out of
the hands of the Magistrate concerned, no further
bias could be attributed to him. Similarly, the
allegation of bias against the District & Sessions
Judge was no longer available since the incumbent
had been elevated to the Bench and the trial will
be conducted by another learned Judge.
17. However, as pointed out by Mr. Prashant
Bhushan, learned counsel appearing for the
Petitioners, the manner in which the charges had
21
been framed, without giving the Petitioners a
meaningful opportunity of meeting the allegations
made against them in the charge-sheet, will
ultimately have a direct bearing on the trial
itself. The duty of the Sessions Court to supply
copies of the charge-sheet and all the relevant
documents relied upon by the prosecution under
Sections 207 and 208 Cr.P.C. is not an empty
formality and has to be complied with strictly so
that the accused is not prejudiced in his defence
even at the stage of framing of charge. The fact
that many of the accused persons were not provided
with copies of the charge-sheet and the other
relevant documents, as indicated in Sections 207
and 208 Cr.P.C., seriously affects the right of an
accused to a free and fair trial. In the instant
case, in addition to the above, it has also to be
kept in mind that most of the accused persons in
this case are from outside the State of Gujarat and
are not, therefore, in a position to understand the
22
documents relied upon by the police authorities as
they were in Gujarati which most of the accused
were unable to comprehend. Their demand for
translated copies of the documents met with no
response, and ultimately it was the very same
documents in Gujarati, which were supplied to some
of the accused in some of the cases.
18. The physical torture which was said to have
been inflicted on the Petitioners has come on
record by way of affidavits to which there is no
suitable explanation. Furthermore, the accused
persons were not allowed to meet their lawyers
without police presence, and as stated by them, it
is only natural that an accused in custody will
have second thoughts before making or reiterating
allegations of torture against the very persons to
whose custody they would have to return.
19. Apart from the above, we also have to consider
Ms. Wahi’s submissions regarding the convenience of
23
the prosecution which intends to produce a large
number of witnesses, who are all said to be
residents of the State of Gujarat. It has been
submitted by Ms. Wahi that the examination of such
a large number of witnesses could be compromised
and/or jeopardized in the event they are required
to travel outside the State of Gujarat in
connection with the trial. There will also be a
language problem for the witnesses to be examined
outside the State of Gujarat, since the majority of
the witnesses were acquainted mostly with Gujarati
and would be at a disadvantage in providing a true
picture of the series of incidents relating to the
bomb blasts which were triggered off in the cities
of Ahmedabad and Surat on 26th July, 2008.
20. However, in our criminal justice delivery
system the balance tilts in favour of the accused
in case of any doubt in regard to the trial. The
Courts have to ensure that an accused is afforded a
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free and fair trial where justice is not only done,
but seen to be done and in the process the accused
has to be given the benefit of any advantage that
may enure to his/her favour during the trial. As
was observed by this Court in Commissioner of
Police Vs. Registrar, Delhi High Court [(1996) 6
SCC 323], Article 21 of the Constitution enshrines
and guarantees the precious right of life and
liberty to a person, deprivable only on following
the procedure established by law in a fair trial,
assured of the safety of the accused. Except in
certain matters relating to economic offences or in
regard to national security, the burden lies
heavily on the prosecution to prove its case to the
hilt and it is rarely that the accused is called
upon to prove his innocence.
21. This is a case where the apprehension of the
accused being denied a free and fair trial within
the State of Gujarat has to be considered on the
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weight of the materials produced on behalf of the
accused in support of such apprehension and the
prejudice that may also be caused to the
prosecution in presenting its case. That the facts
involved in this case are of a sensitive nature,
cannot be denied, but that by itself cannot be a
ground for transfer of the trial outside the State
of Gujarat. A good deal of care and caution has to
be exercised to see whether the accused/petitioners
have been able to make out a case of bias and
prejudice on the part of the State or the
prosecuting authorities which raises a very real
and plausible ground for transferring the trial
pending before the Special Judge, Ahmedabad outside
the State of Gujarat. Apart from the above, what
has also to be taken into consideration is a
conceivable surcharged communal climate which could
have a direct bearing on the trial itself. The
Court has to undertake a balancing act between the
interest of the accused, the victims and society at
26
large in the focus of Article 21 of the
Constitution to ensure a free and fair trial to the
accused.
22. The question involved in this case has earlier
fallen for consideration in various other cases
before this Court which have been referred to
hereinbefore. It will be profitable to refer to
some of the observations made by this Court in such
cases.
23. In this regard, we may first refer to a three-
Judge Bench decision in the case of G.X. Francis &
Ors. (supra), where also this Court was considering
a Transfer Petition filed on the apprehension of
bias in the minds of the accused. The said
petition involved the transfer of a complaint
wherein the accused were said to have been
concerned in one way or the other in defamatory
statements against the complainant regarding a
publication known as the “Niyogi Report”.
27
Authoring the judgment on behalf of the Bench,
Vivian Bose, J. observed that where there is
unanimity of testimony from both sides about the
nature of the surcharged communal tension in the
area in question and the local atmosphere is not
conducive to a fair and impartial trial, there is a
good ground for transfer. The learned Judge also
observed that public confidence in the fairness of
a trial held in such an atmosphere would be
seriously undermined, particularly among reasonable
Christians all over India, not because the Judge
was unfair or biased but because the machinery of
justice is not geared to work in the midst of such
conditions. The calm detached atmosphere of a fair
and impartial judicial trial would be wanting and
even if justice were done it would not be “seen to
be done”.
24. We may now refer to another three-Judge Bench
decision of this Court in the case of Gurcharan
Dass Chadha Vs. State of Rajasthan [(1966) 2 SCR
28
678 = AIR 1966 SC 1418], which also involved a
Transfer Petition based on the ground of reasonable
apprehension on the part of the petitioner that
justice would not be done to him by the Court
before whom the trial was pending under the
provisions of the Penal Code and the Prevention of
Corruption Act. While disposing of the matter,
this Court observed as follows :
“A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not.”
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25. The aforesaid question once again cropped up in
Maneka Sanjay Gandhi & Anr. Vs. Miss Rani
Jethmalani [(1979) 4 SCC 169], in a Transfer
Petition filed, inter alia, on three grounds,
namely,
(i) that the parties (complainant and
petitioners) reside in Delhi and some
formal witnesses also belong to Delhi;
(ii) that the petitioner is not able to procure
competent legal service in Bombay; and
(iii) that the atmosphere in Bombay is not
congenial to a fair and impartial trial of
the case against her.
Referring to the decision in G.X. Francis’s
case (supra) a Three-Judge Bench of this Court,
dismissed the Transfer Petition upon holding that
none of the allegations made by the petitioner made
out a case that a fair trial was not possible in
30
the Court where the matter was pending. The mere
words of an interested party was insufficient to
convince the Court that she was in jeopardy or the
Court might not be able to conduct the case under
conditions of detachment, neutrality or
uninterrupted progress. This Court, however, went
on to say that it could not view with unconcern the
potentiality of a flare up and the challenge to a
fair trial. In such circumstances, this Court made
certain precautionary observations to protect the
petitioner and to ensure for her a fair trial. In
K. Anbazhagan Vs. Superintendent of Police, Chennai
& Ors. [(2004) 3 SCC 788], while disposing of two
transfer petitions, the learned Judges observed as
follows :
“A free and fair trial is a sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would
31
be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the minds of the petitioner.”
26. Before we proceed to the latest views expressed
by this Court in a Transfer Petition also praying
for transfer of a trial outside the State of
Gujarat on account of bias and a vitiated communal
atmosphere, we may refer to a slightly different
view taken by this Court by a Bench of two-Judges
in the case of Abdul Nazar Madani Vs. State of T.N.
& Anr. [(2000) 6 SCC 204]. While disposing of a
Transfer Petition filed by the accused in the
Coimbatore Serial Bomb Blasts case on the
allegation that the atmosphere in the State of
Tamil Nadu in general and in Coimbatore in
particular, being so communally surcharged that his
fair and impartial trial there would be seriously
impaired, this Court held that the purpose of a
criminal trial is to dispense fair and impartial
32
justice uninfluenced by extraneous considerations.
This Court observed that the apprehension of not
getting a fair and impartial inquiry or trial is
required to be reasonable and not imaginary, based
upon conjectures and surmises. The mere existence
of a surcharged atmosphere without there being
proof of inability of the Court of holding a fair
and impartial trial, could not be made a ground for
transfer of a case. The alleged communally
surcharged atmosphere has to be considered in the
light of the accusations made and the nature of the
crimes committed by the accused seeking transfer of
the case. It was observed that no universal and
hard and fast rules can be prescribed for deciding
a Transfer Petition which has always to be decided
on the basis of the facts of each case.
27. As has been stated hereinbefore, in Zahira
Habibulla H. Sheikh’s case (supra), in order to
ensure a free and fair trial the atmosphere in
33
which the case is tried should be conducive to the
holding of a fair trial. The absence of a
congenial atmosphere for such a fair and impartial
trial was held to be a good ground for transfer of
the case from Gujarat to Maharashtra.
28. However, such a ground, though of great
importance, cannot be the only aspect to be
considered while deciding whether a criminal trial
could be transferred out of the State which could
seriously affect the prosecution case, considering
the large number of witnesses to be examined to
prove the case against the accused. The golden
thread which runs through all the decisions cited
on behalf of the parties, is that justice must not
only be done, but must also be seen to be done. If
the said principle is disturbed, fresh steps can
always be taken under Section 406 Cr.P.C. and Order
XXXVI of the Supreme Court Rules, 1966 for the same
reliefs.
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29. The offences with which the accused have been
charged are of a very serious nature, but except
for an apprehension that justice would not be
properly administered, there is little else to
suggest that the charged atmosphere which existed
at the time when the offences were alleged to have
been committed, still exist and was likely to
prejudice the accused during the trial. All
judicial officers cannot be tarred with the same
brush and denial of a proper opportunity at the
stage of framing of charge, though serious, is not
insurmountable. The accused have their remedies
elsewhere and the prosecution still has to prove
its case. As mentioned earlier, the communally
surcharged atmosphere which existed at the time of
the alleged incidents, has settled down
considerably and is no longer as volatile as it was
previously. The Presiding Officers against whom
bias had been alleged, will no longer be in charge
of the proceedings of the trial. The conditions in
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Gujarat today are not exactly the same as they were
at the time of the incidents, which would justify
the shifting of the trial from the State of
Gujarat. On the other hand, in case the Sessions
Trial is transferred outside the State of Gujarat
for trial, the prosecution will have to arrange for
production of its witnesses, who are large in
number, to any venue that may be designated outside
the State of Gujarat. At the present moment, the
case for transfer of the trial outside the State of
Gujarat is based on certain incidents which had
occurred in the past and have finally led to the
filing of charges against the accused. The main
ground on which the Petitioners have sought
transfer is an apprehension that communal feelings
may, once again, raise its ugly head and permeate
the proceedings of the trial if it is conducted by
the Special Judge, Ahmedabad. However, such an
allegation today is more speculative than real, but
in order to dispel such apprehension, we also keep
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it open to the Petitioners that in the event the
apprehension of the petitioners are proved to be
real during the course of the trial, they will be
entitled to move afresh before this Court for the
relief sought for in the present Transfer Petition.
30. The Transfer Petition is disposed of with the
aforesaid observations. There will be no order as
to costs.
…………………………………J. (ALTAMAS KABIR)
…………………………………J. (CYRIAC JOSEPH)
NEW DELHI, DATED: JULY 6, 2011
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