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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER     PETITION     (CRL.)     NO.17     OF     2012   

Mrudul M. Damle & Anr. …Petitioners

Versus

C.B.I. New Delhi …Respondent

J     U     D     G     M     E     N     T   

T.S.     THAKUR,     J.   

1. In this petition under Section 406 of the Code of  

Criminal Procedure, 1973, the petitioners pray for transfer  

of Criminal Case No. 45 of 2008 pending in the Court of  

Special Judge, CBI Cases, Rohini Courts, New Delhi to the  

Court of Special Judge, CBI Cases, Court of Sessions at  

Thane, Maharashtra on the ground of convenience of the  

parties and the witnesses cited in the charge sheet by the  

prosecution.  1

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2. Petitioners are husband and wife. While petitioner  

No.2-husband is currently posted as Assistant  

Commissioner, Central Excise, Customs and Service Tax at  

Vapi, Gujarat, petitioner No.1-wife is practicing as a  

Chartered Accountant in the State of Maharashtra.  Both  

the petitioners are facing prosecution in Criminal Case  

No.45 of 2008 for offences punishable under Sections 13(1)

(e) and 13(2) of the Prevention of Corruption Act, 1988  

read with Section 109 IPC.  The said case was registered on  

14th July, 2005 against the petitioner-husband on the basis  

of recovery of cash and other property in the course of  

searches conducted at his houses in New Delhi and Thane.  

The bank locker in the name of the petitioner No.1-wife was  

also seized in the course of the said search operations.  

3. The prosecution case, it appears, is that the petitioner  

No.2-Milind Purushottam Damle while posted as Assistant  

Commissioner, Central Excise, Customs and Service Tax at  

New Delhi, has amassed assets disproportionate to the  

known sources of his income in his name and in the name  

of his family during the period 1.4.2000 to 2.2.2005.  Upon  

completion of the investigation a charge-sheet was filed  

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against the couple in which the prosecution charged the  

husband with the commission of offences punishable under  

Sections 13(1)(e) and 13(2) of the Prevention of Corruption  

Act, 1988 while the wife was accused of abetment of the  

said offence punishable under Sections 13(1)(e) and 13(2)  

of the Prevention of Corruption Act, 1988 read with Section  

109 IPC.  The charge-sheet in question was initially filed  

before the Special Judge, CBI cases, Patiala House, New  

Delhi but subsequently transferred to the Court of Special  

Judge, CBI cases, Rohini, New Delhi.  The charge-sheet  

enlists as many as 92 witnesses to prove the prosecution  

case. It is not in dispute that 88 out of the said 92  

witnesses are from the State of Maharashtra, most of them  

being either from Thane, Mumbai or Navi Mumbai districts  

while some are from Pune or Satara districts of that State.  

The remaining 4 witnesses cited at serial nos.62, 68, 91  

and 92 of the charge-sheet are from Delhi. Two of the said  

four witnesses are said to be no longer in Delhi.  The  

petitioners allege that they have been regularly attending  

the Court in Delhi ever since the charge-sheet was filed but  

not much progress has been made towards the conclusion  

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of the trial so far.  Petitioner No.1, who happens to be a  

practising Chartered Accountant in Thane, has apart from  

her professional commitments, responsibility towards her  

mother who is aged 75 years and who stays with her.  

Appearance of the said petitioner in Delhi would, therefore,  

cause inconvenience to her on personal, professional and  

even the family front. So also petitioner No.2 who is  

currently posted at Gujarat finds it extremely inconvenient  

to travel all the way to Delhi on every date of hearing. The  

petitioners assert that transfer of the case from Delhi to  

Thane would, in the above circumstances, not only be  

convenient to the two accused persons facing the trial but  

also to the witnesses cited by the prosecution who shall find  

it easier to appear for their deposition at Thane rather than  

travelling all the way to Delhi.

4. The petition has been opposed by the respondent who  

has filed a counter-affidavit sworn by Sr. Supdt. of Police,  

ACU-IV, CBI, New Delhi, in which the respondent has tried  

to justify the filing of the chargesheet in Delhi on the  

ground that petitioner No.2 was during the check period i.e.  

1.4.2000 to 2.2.2005 posted at Central Excise, New Delhi  4

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as Assistant Commissioner w.e.f. 19th December, 2002 till  

the registration of the FIR.  The counter-affidavit does not  

however dispute the fact that 88 out of 92 witnesses cited  

by the prosecution are from Maharashtra.

5. We have heard learned counsel for the petitioners and  

Mr. H.P. Rawal, Additional Solicitor General for the  

respondent.  Section 406 of the Cr.P.C. empowers this  

Court to transfer cases from one High Court to another  

High Court or from a Criminal Court subordinate to one  

High Court to another Criminal Court of equal or superior  

jurisdiction subordinate to another High Court whenever it  

is made to appear to this Court that an order to that effect  

is expedient for the ends of justice. The source and the  

plentitude of the power to transfer are not disputed before  

us by Mr. Rawal, counsel appearing for the respondent.  

Even otherwise as observed by this Court in Dr.  

Subramaniam Swamy v. Ramakrishna Hegde (1990)  

1 SCC 4, the question of expediency depends upon the  

facts of each case, the paramount consideration being the  

need to meet the ends of justice.   

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6. The material facts relevant to the determination of the  

question of expediency are not in dispute inasmuch as the  

respondent do not dispute that the chargesheet enlists 92  

witnesses, 88 out of whom are from outside Delhi and from  

different places in Maharashtra.  It is also not in dispute  

that petitioner No.1 is a Chartered Accountant practising in  

Thane, petitioner No.2 who is the only other accused in the  

case who is currently posted at Vapi in the State of Gujarat  

which is in comparison to Delhi closer to Thane.  It is in the  

light of those admitted facts obvious that the trial in Rohini  

Court at Delhi would be inconvenient not only to the  

accused persons but also to almost all the witnesses cited  

by the prosecution except 4 who may be in or around Delhi.  

The case is even otherwise not Delhi centric in the true  

sense inasmuch as the only reason the FIR was registered  

in Delhi was the fact that petitioner No.2 was posted in  

Delhi during a part of the check period.

7. Mr. Rawal no doubt argued that a transfer of the case  

outside Delhi will cause prejudice to the respondent but  

was unable to show how that would be so.  Mr. Rawal had  

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in fact taken time to examine whether the list of witnesses  

could be suitably pruned to expedite the conclusion of the  

trial.  But after taking instructions, Mr. Rawal submitted  

that it would not be possible at this stage to make any such  

statement, and rightly so, because it is only the public  

prosecutor who can take a call on that aspect after the trial  

starts, depending upon how the facts sought to be proved  

are seen by him or have been proved.

8. In Abdul Nazar Madani v. State of Tamil Nadu,  

(2000) 6 SCC 204,  this Court while dealing with a prayer  

for transfer of the criminal case from one Court to other  

emphasized the importance of fairness of a trial and  

observed that while 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 a relevant consideration. This Court  

observed:  

“7. The purpose of the criminal trial is to dispense fair  and impartial justice uninfluenced by extraneous  considerations. When it is shown that public confidence  in the fairness of a trial would be seriously undermined,  

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any party can seek the transfer of a case within the  State under Section 407 and anywhere in the country  under Section 406 Cr.P.C. 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.”

9. Similarly, in Shree Baidyanath Ayurved Bhawan  

Pvt. Ltd. v. State of Punjab and Ors. (2009) 9 SCC  

414, this Court held that the convenience of the parties  

including the witnesses to be produced at the trial is a  

relevant consideration while directing transfer of criminal  

case from one Court situated in one State to another  

situated in another State.   

10. In Mrs. Sesamma Phillip v. P. Phillip  (1973) 1  

SCC 405, which happened to be a matrimonial case, a five- 8

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Judge Bench of this Court transferred a criminal case on the  

ground of safety of the women-petitioner from Delhi to  

Durg. So also in Captain Amarinder Singh v. Prakash  

Singh Badal  (2009) 6 SCC 260, this Court held that an  

impartial trial and convenience of the parties & witnesses  

are relevant considerations for deciding a transfer petition.  

In Jayendra Saraswathy Swamigal v. State of Tamil  

Nadu (2005) 8 SCC 771, this Court transferred a case  

from Kanchipuram to Pondicherry having regard to the  

convenience of the prosecuting agency and the language in  

which almost all the witnesses had to depose before the  

Trial Court.  

11. In the light of the above decisions and the fact that  

CBI is fully equipped with an office at Bombay and a Court  

handling CBI cases is established at Thane also, we see no  

reason why the transfer of the case would cause any  

hardship to the prosecution especially when searches  

which have been relied upon by the prosecution have  

been conducted at Thane in which the prosecution claims  

to have discovered a part of the assets allegedly acquired  

by the petitioners.  Reliance placed by Mr. Rawal upon the  9

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decision of this Court in Bhiaru Ram and Ors. v. CBI  

(2010) 7 SCC 799, is of no assistance to him. In Bhiaru  

Ram’s case (supra) the main accused had not filed for  

transfer of the case and the number of witnesses cited  

were not so large as in the present case nor were bulk of  

the witnesses located in the State to which the case was  

sought to be transferred. This Court also had noticed the  

serious apprehensions regarding the fairness of the trial  

keeping in view the fact that the accused was an  

influential person.  So also the decision in Nahar Singh  

v. Union of India (2011) 1 SCC 307, relied upon by Mr.  

Rawal was dealing with a totally different fact situation.  

The prayer for transfer in that case was not based so  

much on the ground of convenience of the accused and  

the witnesses as it was on the independence of the Court  

before whom the matter was pending. This Court felt that  

transfer on that ground would be a reflection upon the  

credibility of not only the entire judiciary but also the  

prosecuting agency.  That is not the position or the  

ground in the case at hand.

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12. There is no gainsaying that a trial at Delhi in which  

witnesses are expected to travel from Maharashtra is  

bound to linger on for years.  Expeditious disposal of the  

trial is also a facet of fairness of the trial and speedy trial  

is infact a fundamental right as observed by this court in  

Hussainara Khatoon & Ors. v. Home Secretary, State  

of Bihar, Patna (1980) 1 SCC 81. When witnesses from  

distant places are sought to be summoned, early  

conclusion of the trial becomes so much more difficult  

apart from the fact that the prosecution will have to bear  

additional burden by way of travelling expenses of the  

official and non-official witnesses summoned to appear  

before the Court.   

13. In the result, we allow this petition and transfer  

Criminal Case No.45 of 2008 entitled C.B.I      v.     Mrudul     Milind    

Damle     &     Anr.   pending in the Court of Special Judge, CBI  

Cases, Rohini Courts, New Delhi to the Court of Special  

Judge, CBI Cases, Court of Sessions at Thane,  

Maharashtra. The record of the case shall be forthwith  

transferred to the transferee Court which shall take up the  

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matter and dispose of the same as expeditiously as  

possible.         

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

………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi May 10, 2012

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