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  

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[(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  

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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  

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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  

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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  

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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”.  

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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

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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  

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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  

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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  

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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  

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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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