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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1592-1593 of 2015 (@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)

Usmangani Adambhai Vahora …Appellant

Versus

State of Gujarat & Anr. …Respondents

J U D G M E N T

Dipak Misra, J.

The seminal issue that has emerged for consideration  

in these appeals is whether the High Court in exercise of  

jurisdiction under Article 227 of the Constitution of India is  

justified in quashing the order dated 14.08.2015 passed by  

the Principal Sessions Judge, Kheda at Nadiad in Criminal  

Miscellaneous Application No. 545 of 2015 arising from the  

Sessions Case No. 291 of 2003 instituted for the offences

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punishable under Sections 147, 148, 149, 364A, 120B, 447,  

342 and 506(2) of the Indian Penal Code (IPC) and further  

directing the learned Principal  Sessions Judge to transfer  

the  Sessions  Case  to  any  other  court  of  the  learned  

Additional  Sessions  Judge  in  the  same Sessions  Division  

from the court of the 3rd Additional Sessions Judge, Kheda.

2. Be it stated at the beginning, the High Court has posed  

two questions – one of which pertains to exercise of power  

under sub-section (1) of Section 408 of the Code of Criminal  

Procedure, 1973 (CrPC) by the Sessions Judge to transfer a  

case  from  one  Additional  Sessions  Judge  to  any  other  

Additional  Sessions  Judge  in  his  Sessions  Division  after  

commencement of the trial, and the other, whether the case  

deserves to  be  transferred.  Answering  the  first  issue,  the  

High Court has opined that the transfer petition preferred  

under  Section  408  CrPC  before  the  learned  Principal  

Sessions Judge is maintainable. The view expressed by the  

High Court on this score appears to be correct and hence,  

we  affirm  the  same.  The  principal  issue  warranting  

delineation is  the  justification for  allowing  application for  

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transfer from the court where the trial was pending to the  

court of another learned Additional Sessions Judge.

3. The facts which are essential to be stated are that the  

2nd respondent  faced  trial  for  the  offences  mentioned  

hereinbefore  in  Sessions  Case  No.  291  of  2003.    After  

examination  of  18  prosecution  witnesses,  the  informant  

preferred  an  application  under  Section  319  CrPC  for  

arraigning  one  Natubhai  Maganbhai  Edanwala  as  an  

accused  in  the  sessions  case.  The  said  application  was  

rejected  by  the  learned  trial  judge  vide  order  dated  

18.05.2006.  Aggrieved  by  the  aforesaid  rejection,  the  

informant preferred Special Criminal Application No. 1444  

of  2006  before  the  High  Court  which  vide  order  dated  

02.12.2011 rejected the same.  The said order was assailed  

before  this  Court  in  Special  Leave  Petition  (Criminal)  No.  

17262 of 2012 which was dismissed on 11.01.2013 with the  

observation that it would be open to the informant to file an  

appropriate application under Section 319 CrPC, if  at the  

end of the examination of all the witnesses, some material is  

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found to connect the person sought to be arraigned as an  

accused in the alleged crime.  As the factual matrix would  

exposit,  the  informant  filed  another  application  under  

Section 319 CrPC after the examination of the prosecution  

witnesses Nos. 19 to 23 and the application was allowed.  

The  newly  arraigned  accused  preferred  Special  Criminal  

Application  No.  1731  of  2013  before  the  High  Court  

challenging the said order, and the High Court had stayed  

the same.  

4. As  the  factual  score  would  undrape  on  31.07.2015  

when  the  sessions  trial  was  fixed  before  the  learned  3rd  

Additional Sessions Judge, Kheda at Nadiad, as alleged, the  

second respondent was standing in the parking area meant  

for  the four wheelers and at that  time he could overhear  

certain conversation between the informant and his son that  

the trial would be surely taken up for hearing from the next  

date onwards and all the accused persons would definitely  

be convicted. As further alleged, the Presiding Officer said  

something regarding the trial which the accused correlated  

with  the  conversation  he  had  overheard  between  the  

informant and his son.  Under such circumstances, he filed  

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Criminal Miscellaneous Application No. 545 of 2015 under  

Section  408  CrPC  before  the  Principal  Sessions  Judge,  

Kheda for transfer of the sessions case to any other court in  

the same Sessions Division.  The learned Principal Sessions  

Judges called for  the remarks of  the concerned Presiding  

Officer and, after taking into consideration the remarks and  

adverting to the position of law, rejected the application. The  

learned  Principal  Sessions  Judge  while  rejecting  the  

application had observed that once the trial commenced, he  

had no jurisdiction to transfer the case in exercise of  the  

power under Section 408 CrPC. As has been stated earlier,  

the High Court had unsettled the said view and we have no  

hesitation to say correctly so.

5. The  High  Court,  as  has  been  indicated  earlier,  has  

referred  to  the  conversation  between the  parties  and the  

impression of  the  accused.  After  narrating  the  same,  the  

High  Court  has  observed  that  the  accused-petitioner  

definitely  is  in  dilemma  and  whether  to  term  his  

apprehension as reasonable or not, the result of the reaction  

of a hypersensitive mind  is the question.   Thereafter, the  

High Court has proceeded to observe that the learned trial  

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Judge  had  not  examined  any  witness;  that  all  witnesses  

examined so far were examined by his predecessor in office;  

that the Presiding Officer himself had also not indicated his  

disinclination to hear the matter,  and that  apart,  he had  

offered quite a stiff resistance to the plea of transfer as the  

same  is  revealed  from  his  remarks  forwarded  to  the  

Principal  Sessions  Judge.   After  so  stating,  the  learned  

single Judge has held thus:-

“…I am sure that the present Additional Sessions  Judge  would  have  acted  in  a  true  sense  of  a  Judicial Officer.  But nevertheless, to ensure that  justice  is  not  only  done,  but  also  seems to  be  done and in the peculiar facts of the case,  I feel  that  it  will  be  appropriate  if  the  Principal  Sessions Judge transfers the case to any other  Additional Sessions Judge in the same Sessions  Division.   I  make  it  abundantly  clear  that  the  transfer  shall  not  be  construed  as  casting  any  aspersions  on  the  learned  Additional  Sessions  Judge.”

6. On a careful scrutiny of the order passed by the High  

Court,  it  is  not  clear  whether  the  High  Court  has  been  

convinced that the accused has any real apprehension or  

bias against the trial  judge.  However,  the observations of  

the  learned  single  Judge,  as  it  seems  to  us,  is  

fundamentally  based  on  apprehension  and  to  justify  the  

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same, he has referred to the remarks offered by the learned  

Additional  Sessions  Judge  to  the  Sessions  Judge  when  

explanation was called for. First, we shall refer to the issue  

of apprehension.  The apprehension is based on some kind  

of conversation between the informant and another that the  

accused  persons  shall  be  convicted.  There  is  also  an  

assertion that the trial judge is a convicting Judge and that  

is why, the High Court has observed that he is in dilemma.  

7. So far as apprehension is concerned, it has to be one  

which would establish that justice will not be done. In this  

context,  we  may  profitably  refer  to  a  passage  from  a  

three-Judge Bench decision in  Gurcharan Dass Chadha  

v. State of Rajasthan1, wherein it has been held:-

“…  The law with  regard to  transfer  of  cases  is  well-settled.  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.  

1 AIR 1966 SC 1418

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The  Court  has  further  to  see  whether  the  apprehension is  reasonable  or  not.  To judge  of  the reasonableness of the apprehension the state  of  the  mind  of  the  person  who  entertains  the  apprehension is no doubt relevant but that is not  all.  The  apprehension  must  not  only  be  entertained but must appear to the Court to be a  reasonable apprehension.”

8. This Court in Abdul Nazar Madani v. State of T.N.2  

has ruled 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. If it appears that the  dispensation  of  criminal  justice  is  not  possible  impartially and objectively and without any bias,  before  any  court  or  even  at  any  place,  the  appropriate  court  may  transfer  the  case  to  another court where it feels that holding of fair  and  proper  trial  is  conducive.  No  universal  or  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.  Convenience  of  the  parties  including  the  witnesses  to  be produced at  the trial  is  also  a  relevant  consideration  for  deciding  the  transfer  petition. The convenience of the parties does not  necessarily  mean  the  convenience  of  the  petitioners  alone  who approached the  court  on  misconceived  notions  of  apprehension.  Convenience for the purposes of transfer means  the  convenience  of  the  prosecution,  other  accused, the witnesses and the larger interest of  the society.”

2 (2000) 6 SCC 204

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9. In  Captain  Amarinder  Singh  v.  Parkash  Singh  

Badal and others3,  while dealing with an application for  

transfer  petition  preferred  under  Section  406  CrPC,  a  

three-Judge Bench has opined that for transfer of a criminal  

case, there must be a reasonable apprehension on the part  

of the party to a case that justice will not be done. It has  

also  been  observed  therein  that  mere  an  allegation  that  

there is an apprehension that justice will not be done in a  

given case alone does not suffice.  It is also required on the  

part of the Court to see whether the apprehension alleged is  

reasonable or not, for the apprehension must not only be  

entertained but must appear to the Court to be a reasonable  

apprehension.   In  the  said  context,  the  Court  has  held  

thus:-  

“19. Assurance  of  a  fair  trial  is  the  first  imperative  of  the  dispensation  of  justice.  The  purpose of  the criminal  trial  is to dispense fair  and impartial justice uninfluenced by extraneous  considerations. When it is shown that the public  confidence  in  the  fairness  of  a  trial  would  be  seriously  undermined,  the  aggrieved  party  can  seek the transfer of a case within the State under  Section 407 and anywhere in the country under  Section 406 CrPC.

3 (2009) 6 SCC 260

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20. However,  the apprehension of  not  getting a  fair and impartial inquiry or trial is required to be  reasonable and not imaginary. Free and fair trial  is sine qua non of Article 21 of the Constitution.  If the criminal trial is not free and fair and if it is  biased, judicial fairness and the criminal justice  system would be at stake, shaking the confidence  of  the  public  in  the  system.  The  apprehension  must appear to the court to be a reasonable one.”

10. In Lalu Prasad alias Lalu Prasad Yadav v. State of  

Jharkhand4,  the  Court,  repelling  the  submission  that  

because some of the distantly related members were in the  

midst of the Chief Minister, opined that from the said fact it  

cannot  be  presumed  that  the  Presiding  Judge  would  

conclude against the appellant.  From the said decision, we  

think it appropriate to reproduce the following passage:-

“Independence of judiciary is the basic feature of  the Constitution.  It demands that a Judge who  presides over the trial, the Public Prosecutor who  presents the case on behalf of the State and the  lawyer vis-à-vis amicus curiae who represents the  accused must work together in harmony in the  public  interest  of  justice  uninfluenced  by  the  personality of the accused or those managing the  affairs of the State. They must ensure that their  working  does  not  lead  to  creation  of  conflict  between  justice  and  jurisprudence.  A  person  whether  he  is  a  judicial  officer  or  a  Public  Prosecutor  or  a  lawyer  defending  the  accused  should  always uphold  the  dignity  of  their  high  office with a full sense of responsibility and see  that its value in no circumstance gets devalued.  

4 (2013) 8 SCC 593

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The public interest demands that the trial should  be  conducted  in  a  fair  manner  and  the  administration  of  justice  would  be  fair  and  independent.”

11. The  aforesaid  passage,  as  we  perceive,  clearly  lays  

emphasis on sustenance of majesty of law by all concerned.  

Seeking transfer at the drop of a hat is inconceivable.   An  

order of transfer is not to be passed as a matter of routine  

or merely because an interested party has expressed some  

apprehension about proper conduct of the trial.  The power  

has to be exercised cautiously and in exceptional situations,  

where it becomes necessary to do so to provide credibility to  

the trial.  There has to be a real apprehension that there  

would be miscarriage of justice. [See : Nahar Singh Yadav  

and another v. Union of India and others5].

12. In  the  instant  case,  we  are  disposed  to  think  that  

apprehension that has been stated is absolutely mercurial  

and  cannot  remotely  be  stated  to  be  reasonable.   The  

learned single Judge has taken an exception to the remarks  

given by the learned trial judge and also opined about non-

5 (2011) 1 SCC 307

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examination  of  any  witness  by  him.   As  far  as  the  first  

aspect is concerned, no exception can be taken to it. The  

learned Sessions Judge,  while  hearing the application for  

transfer of the case, called for remarks of the learned trial  

judge, and in such a situation, he is required to give a reply  

and that  he has done.  He is  not  expected to accept the  

allegations made as regards his conduct and more so while  

nothing  has  been  brought  on  record  to  substantiate  the  

same.  The  High  Court  could  not  have  deduced  that  he  

should  have  declined  to  conduct  the  trial.   This  kind  of  

observation is absolute impermissible in law, for there is no  

acceptable reason on the part of the learned trial judge to  

show his disinclination. Solely because an accused has filed  

an application for transfer, he is not required to express his  

disinclination. He is required under law to do his duty. He  

has to perform his duty and not to succumb to the pressure  

put by the accused by making callous allegations. He is not  

expected to show unnecessary sensitivity to such allegations  

and  recuse  himself  from  the  case.   If  this  can  be  the  

foundation to transfer a case, it will bring anarchy in the  

adjudicatory  process.   The  unscrupulous  litigants  will  

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indulge themselves in court haunting.  If they are allowed  

such room, they do not have to face the trial before a court  

in which they do not feel comfortable.  The High Court has  

gravely erred in this regard.  So far as the non-examination  

of the witnesses is concerned, as the factual  score would  

uncurtain,  the matter  had travelled to the High Court  in  

revision assailing the order passed under Section 319 CrPC.  

Be that as it may, the High Court has not adverted to the  

issue who was seeking adjournment and what was the role  

of the learned trial judge.  Grant of adjournment could have  

been dealt with by the High Court in a different manner.  It  

has to be borne in mind that a judge who discharges his  

duty  is  bound  to  commit  errors.  The  same  have  to  be  

rectified. The accused has never moved the superior court  

seeking its intervention for speedy trial. The High Court has  

innovated a new kind of approach to transfer the case.  The  

High Court should have kept in view the principles stated in  

K.P. Tiwari v. State of M.P.6 which are to the following  

effect:-

6 1994 Supp. (1) SCC 540  

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“…  It has also to be remembered that the lower  judicial  officers  mostly  work  under  a  charged  atmosphere  and  are  constantly  under  a  psychological  pressure  with  all  the  contestants  and  their  lawyers  almost  breathing  down their  necks—more correctly up to their nostrils. They  do not have the benefit of a detached atmosphere  of  the higher  courts  to think coolly  and decide  patiently. Every error, however gross it may look,  should not, therefore, be attributed to improper  motive.”

13. Thus analysed, we are unable to sustain the order of  

transfer  passed  by  the  High  Court.   Consequently,  the  

appeals are allowed in part.  The finding recorded as regards  

the jurisdiction of the learned Sessions Judge is sustained,  

and as far as the direction to the Principal Sessions Judge  

to transfer the case from the 3rd Additional Sessions Judge  

to  some  other  court  being  vulnerable  and  wholly  

unsustainable  is  set  aside.   The learned trial  judge shall  

proceed with the trial and dispose of the same within six  

months.  

.................................J. [Dipak Misra]

.................................J.       [Prafulla C. Pant]

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NEW DELHI JANUARY 8, 2016   

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