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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 222   OF 2015 (Arising out of SLP (Crl.) No.881 of 2014)

Kanaklata  …Appellant

Versus

State of (NCT) of Delhi & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of an order dated 29th August,  

2013 passed by a learned Single Judge of the High Court of  

Delhi  whereby  the  High  Court  has  dismissed  T.P.  (Crl.)  

No.31  of  2013  filed  by  the  appellant  seeking  transfer  of  

Sessions Case No.1006 of 2009 from the Court where it is  

presently pending to any other Sessions Court at Rohini or  

Tis Hazari.

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3. Sessions  Case  No.1006  of  2009  arises  out  of  FIR  

No.156/2008  registered  at  P.S.  Mukherjee  Nagar  for  

commission of offences punishable under Sections 323/354  

of  the  IPC  and  Sections  3(i)  (X)  (XI)  (XV)  of  Scheduled  

Caste  and  Scheduled  Tribe  (Prevention  of  Atrocities  Act),  

1989.  Additional Sessions Judge, Rohini, before whom the  

matter  is  currently  pending,  appears  to  have  heard  the  

parties  on the  question  of  framing of  charges  and by  an  

order  dated  22nd March,  2010  discharged  the  accused  

persons for  the offences under  the Scheduled Castes and  

Scheduled Tribes (Prevention of Atrocities Act), 1989. The  

case was in that view made over to the illaqa Magistrate for  

consideration whether charges under the Indian Penal Code  

need to be framed in the case.   

4. The complainant questioned the discharge order passed  

by the trial Court before the High Court in a revision petition  

which was allowed by the High Court by its order dated 10th  

December, 2012 with a direction to the trial Court to pass a  

fresh order on the subject after hearing both the parties. It  

was  at  this  stage,  that  the  complainant  expressed  an  

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apprehension about the fairness of the approach which the  

trial Court may adopt in view of the findings recorded in the  

order of discharge earlier passed by her. The complainant  

(appellant herein) expressed these fears first in T.P. (Crl.)  

No.31 of 2013 filed before the Sessions Judge, Rohini which  

was dismissed by the said court by order dated 22nd May,  

2013  holding  that  since  no  other  officer  in  North  West  

District in Delhi has been notified for trial of cases under the  

Scheduled  Caste  and  Scheduled  Tribe  (Prevention  of  

Atrocities Act), 1989 the prayer for transfer in essence was  

tantamount to asking for a transfer to another district which  

could be allowed only by the High Court. It was in the above  

backdrop that the complainant filed T.P. (Crl.) No.31 of 2013  

before the High Court seeking transfer of the case to any  

other  Court  competent  to  try  the  same  outside  Rohini  

District.  That  application,  as  noticed  above,  has  been  

dismissed by the High Court in terms of the order impugned  

in the present appeal primarily on the ground that the order  

passed by the High Court has made it sufficiently clear that  

the observations made in the order passed by the trial Court  

shall not influence any fresh order which the said Court may  

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pass pursuant to the remand made by the High Court. The  

High  Court  has  also  observed  that  the  complainant  

(appellant herein) had while filing Crl. R.P. No.242 of 2010  

against the discharge order expressed no apprehension nor  

sought  transfer  of  the  case  from  the  Court  where  it  is  

pending to any other Court.

5. We have heard learned counsel for the parties at some  

length. It is true that the trial Court had while discharging  

the accused persons under the Special Act mentioned above,  

made certain observations about the alleged misuse of the  

provisions of the said Act by unscrupulous elements and also  

certain suggestions for remedying that situation. It is also  

true that the trial  Court had come to the conclusion that  

there is no real basis for it to frame any charge against the  

accused persons under the said Act. But it is equally true  

that  while  setting  aside  that  order  and  directing  a  fresh  

order on the question of charge, the High Court has clearly  

mentioned that the trial Court shall remain uninfluenced by  

the observation made in its earlier order. That observation  

is, in the opinion of the High Court, a sufficient safeguard  

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against any possible prejudice to the complainant-appellant  

herein making transfer of the case from the Court at Rohini  

to any other Court unnecessary.  Now in the ordinary course  

if an order passed by the Court is set aside the observations  

and  findings  recorded  therein  also  get  obliterated  for  all  

intents and purposes. So also if the High Court makes the  

position clear that any such observation shall not influence  

the Court concerned while making a fresh order the same  

should  ordinarily  put  the  matter  beyond  the  pale  of  any  

controversy. Having said that, there may still be situations  

where  the  nature  of  the  observations  made by  the  court  

concerned create a reasonable apprehension in the mind of  

the litigant that the Court has so committed itself to a given  

approach or thought process that it may not be possible for  

it to retrace its steps to take a fair and non-partisan view in  

the matter. The present appears to be one such case where  

despite  the  safeguards  provided  by  the  High  Court’s  

observations, the apprehension of the complainant continues  

to subsist. We do not think that such apprehension is wholly  

misconceived nor  can it  be dubbed as  forum shopping in  

disguise.  The earlier  order passed by the trial  Court is so  

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strongly worded that it could in all likelihood give rise to a  

reasonable  apprehension  in  the  mind  of  the  complainant  

which cannot be lightly brushed aside.  We must hasten to  

add  that  we  are  not  in  the  least  suggesting  that  the  

Presiding  Officer  of  the  trial  Court  is  totally  incapable  of  

adopting  a  fair  approach  while  passing  a  fresh  order  but  

then  the  question  is  not  whether  the  Judge  is  biased  or  

incapable of rising above the earlier observations made by  

her.  The  question  is  whether  the  apprehension  of  the  

complainant is reasonable for us to direct a transfer.  Justice  

must not only be done but must seem to have been done.  A  

lurking suspicion in the mind of the complainant will leave  

him with a brooding sense of having suffered injustice not  

because he had no case, but because the Presiding Officer  

had a preconceived notion about it. On that test we consider  

the present to be a case where the High Court ought to have  

directed a transfer.  In as much as it did not do so, we have  

no option but to interfere and direct transfer of the case to  

another Court.

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6. We are mindful of the fact that the transfer ordered by  

us may cause inconvenience and harassment to the accused  

persons but that can, in our opinion, be taken care of by  

directing  that  in  case  an  application  for  exemption  from  

personal  appearances  is  filed,  the  Court  concerned  shall  

consider  the  same  and  pass  appropriate  orders  in  

accordance with law.  

7. In the result, we allow this appeal, set aside the order  

passed  by  the  High  Court  and  direct  that  Sessions  Case  

No.1006 of 2009 pending in the Court of Additional District  

and Sessions Judge, Rohini shall stand transferred from that  

Court to the Court of Sessions Judge, Tis Hazari, who shall  

try the same himself or make it over to any other Court duly  

notified and competent to do so. Record of the case shall be  

transmitted to the transferee Court expeditiously.  

………………………………….…..…J.          (T.S. THAKUR)

………………………………….…..…J. New Delhi,      (ADARSH KUMAR GOEL)   February 4, 2015

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  222    OF 2015 (Arising out of S.L.P. (Crl.) No. 881/2014)

KANAKLATA       ..Appellant

Versus

STATE (NCT) OF DELHI & ORS. .. Respondents

J U D G M E N T

R. BANUMATHI, J.

I have had the benefit of going through the judgment  

proposed by his Lordship Justice T.S. Thakur.  For the reasons  

which I have indicated below, I  am unable to agree with the  

proposed final decision and in my view, the present appeal is  

liable to be dismissed.

2. The  appellant  seeks  transfer  of  Sessions  Case  

No.1006/2009  arising  out  of  FIR  No.156/2008  registered  at  

Police Station Mukherjee Nagar, Delhi.  As per the allegations  

made by the complainant/appellant in the FIR dated 4.5.2008,  

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they have been  the tenants  under the accused persons and on  

3.5.2008,  accused/respondent  Nos.  2  to  10  obstructed   and  

abused  them by  uttering  objectionable  caste  based  remarks  

against  them.  On the basis  of  the complaint  lodged by the  

complainant,  FIR  was  registered  under  Sections  323/341/354  

and 34 IPC and Section  3(i)  (x),  (xi)  and (xv)  of  Scheduled  

Castes  and  Scheduled  Tribes  (Prevention  of  Atrocities)  

Act,1989.   On the discharge petition filed by respondent Nos.2  

to 10,  learned Additional  Sessions Judge,  Rohini  Courts,  vide  

Order dated 22.3.2010 discharged all the respondents.  Being  

aggrieved, the complainant moved the High Court in revision  

petition being Criminal Revision No. 242/2010 challenging the  

order of discharge.   Vide  Order dated 10.12.2012, the High  

Court  set  aside  order  of  discharge  and  remitted  the  matter  

back  to  the  trial  court  to  consider  the  matter  afresh  being  

uninfluenced  by  the  observations  made  in  the  earlier  order  

dated 22.3.2010.  Thereafter, the complainant moved a transfer  

petition before the District & Sessions Judge, Rohini Courts and  

also the High Court.   Both the petitions were dismissed vide  

Order  dated  22.5.2013  and  29.8.2013  respectively.  Being  

aggrieved,  the  complainant  has  filed  this  appeal  by  way  of  

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special  leave,  seeking  transfer  of  the  Sessions  Case  

No.1006/2009  expressing  apprehension  that  in  spite  of  the  

direction of the High Court, the trial court might proceed on a  

pre-conceived notion.

3. We have heard the learned counsel for the appellant  

and Ms.  Pinky  Anand,  learned Additional  Solicitor  General  of  

India for respondent No.1 and Ms. Susmita Lal, learned counsel  

for respondent Nos. 2 to 10.   

4. An application for transfer of a case pending against  

the accused cannot be permitted merely because the learned  

Sessions  Judge had made certain  observations  and recorded  

finding in the earlier order dated 22.3.2010 while allowing the  

discharge petition.   The said  order  dated 22.3.2010 was set  

aside by the High Court and the matter was remanded to the  

Sessions  Court  to  consider  the  matter  afresh  being  

uninfluenced  by  any  observation  made  in  the  earlier  order.  

When the earlier order has been set aside by the High Court  

and the matter  was remitted back to the Sessions Court  for  

consideration  of  the  matter  afresh,  apprehension  of  the  

appellant  that  the  learned  trial  judge  may  not  adopt  a  fair  

approach is untenable.

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5. As rightly pointed out by the High Court, earlier when  

the revision petition was allowed by the High Court  and the  

matter was remitted back to the trial court, no apprehension of  

bias was expressed nor any request was made for a transfer of  

the case from the Special Court to some other court.  On behalf  

of the appellant, it is now contended that in the said revision  

petition, the appellant could not have asked for transfer of the  

criminal case.  In my considered view, such contention cannot  

be countenanced.  Under Section 482 Cr.P.C., in order to secure  

ends  of  justice,  the  High  Court  has  inherent  power  to  pass  

appropriate order. Having accepted the order of remand to the  

trial court for consideration of the matter afresh, the appellant  

is not justified in seeking transfer.  The appellant has neither  

challenged  the  said  order  of  remand  nor  raised  the  

apprehension that the trial court may not adopt a fair approach.  

6. It  is  pertinent  to  note  that  the  case  has  been  

registered by the complainant who were the tenants against  

the respondents-landlords numbering as many as nine persons  

and the matter is pending trial since 2009.  By filing transfer  

petition in 2013, the appellant seems to appear to be interested  

only in delaying the matter.

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7. In considering the transfer application, it is to be kept  

in mind that whether a litigant could reasonably apprehend a  

bias attributable to a presiding Judge.  Transfer of a case from  

one  court  to  another  has  serious  effects  on  the  Judge  from  

whom the case is sought to be transferred. Mere presumptions  

or possible assumptions are not sufficient for transfer of a case.  

Only on good and sufficient grounds a transfer can be ordered.  

In  my considered view,  the appellant  has not  made out any  

good and sufficient ground for transfer.

8. It  is  also  pertinent  to  note  that  any  casual  

observations made by a presiding officer of trial court would not  

be a sufficient ground for transfer for the reason that the trial  

courts work in a charged atmosphere and they do not have the  

benefit of a detached atmosphere of the higher courts so as to  

think  cooly  and  decide  patiently.    In  this  regard,  we  may  

usefully refer to the decision of this Court in K.P. Tiwari v. State  

of  M.P.,  1994  (Supp.  1)  SCC  540, in  which  this  Court  has  observed as under:-

“…The higher courts every day come across orders of  the lower courts which are not justified either in law or in  fact and modify them or set them aside. That is one of  the functions  of  the superior  courts.  Our legal  system  acknowledges  the  fallibility  of  the  judges  and  hence  provides  for  appeals  and  revisions.  A  judge  tries  to  

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discharge his duties to the best of his capacity. While  doing so, sometimes, he is likely to err. It is well  said  that a judge who has not committed an error is yet to be  born. And that applies to judges at all levels from the  lowest  to  the  highest.  Sometimes,  the  difference  in  views  of  the  higher  and  the  lower  courts  is  purely  a  result  of  a  difference  in  approach and perception.  On  such  occasions,  the  lower  courts  are  not  necessarily  wrong and the higher courts always right. 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….”  

9. Appellant has not made out any sufficient ground for  

transfer and the request for transfer is bereft of merits.  The  

High Court has rightly dismissed the transfer petition and same  

does not warrant any interference by this Court.   The appeal is  

dismissed.

…….....................…………..J.                                                    (R. Banumathi)

New Delhi;  February 4, 2015

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