“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

TRANSFER PETITION (CRL.) NO. 45 OF 2012

Rajesh Talwar …. Petitioner

Versus

Central Bureau of Investigation & Ors. …. Respondents

WITH

TRANSFER PETITION (CRL.) NO. 46 OF 2012

Nupur Talwar …. Petitioner

Versus

Central Bureau of Investigation & Ors. …. Respondents

ORDER

1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no. 45 of 2012  

and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012.  

These petitions have been filed under Section 406 of the Code of Criminal  

Procedure,  1973,  praying for  the transfer  of  Special  Case No.  01/2011  

pending  before  the  Court  of  the  Special  Judicial  Magistrate  (CBI)  

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Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi.  

Both these petitions are being disposed of by a common order, because  

the  prayers  made  are  identical  and  are  based  on  the  same  grounds,  

arising out of the same factual background.

2. Before  dealing  with  the  grounds  raised  by  the  petitioners,  it  is  

necessary to briefly record the sequence of events leading to the filing of  

the instant transfer petitions.  The prosecution under reference pertains to  

the  murder  of  Aarushi  Talwar,  daughter  of  the two petitioners,  namely,  

Dr.  Rajesh Talwar  and Dr.  Mrs.  Nupur Talwar,  on the night  intervening  

15.5.2008 and 16.5.2008.   On 16.5.2008,  Dr.  Rajesh Talwar  got  a first  

information report registered at police station, Sector 20, Noida, alleging  

that  their  domestic  help  Hemraj  had  committed  the  murder  of  their  

daughter  Aarushi  Talwar.   On the following  day,  i.e.,  on 17.5.2008,  the  

body of Hemraj was also found on the roof of the petitioners’ residence.  

Hemraj had also been murdered.  On 23.5.2008, Dr. Rajesh Talwar was  

arrested  by  the  State  Police.   On  24.5.2008,  Dr.  Rajesh  Talwar  was  

produced before the Chief Judicial Magistrate, Gautam Buddh Nagar.  On  

27.5.2008,  the  Chief  Judicial  Magistrate,  granted  police  custody  of  

Dr. Rajesh Talwar till  30.5.2008.  Even though the matter was originally  

investigated  by  the  State  Police,  on  29.5.2008,  investigation  was  

transferred to the Central Bureau of Investigation (hereinafter referred to  

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as “the CBI”).  The CBI then recorded a separate first information report.  

On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.

3. Having  concluded  the  investigation,  the  CBI  filed  an  application  

(purported to be an application under Section 169 of the Code of Criminal  

Procedure),  asserting  lack  of  incriminating  evidence against  Dr.  Rajesh  

Talwar.  In the application it was also asserted, that further judicial custody  

of Dr. Rajesh Talwar was unnecessary.   Accordingly,  on 11.7.2008, the  

Special  Judicial  Magistrate (CBI) Ghaziabad, ordered the release of Dr.  

Rajesh Talwar, on bail.  

4. On 29.12.2010, a closure report was submitted by the CBI before  

the  Special  Judicial  Magistrate  (CBI)  Ghaziabad.   It  was  contended  

therein, that sufficient evidence was not available to prove the guilt of Dr.  

Rajesh Talwar, in the murder of his daughter Aarushi Talwar.  Accordingly,  

a prayer was made for the closure of the case due to insufficient evidence.  

Since Dr. Rajesh Talwar was the author of the first information report dated  

16.5.2008, notice of the aforesaid application came to be issued to him.  

On 25.1.2011, Dr. Rajesh Talwar filed a detailed protest petition.  By an  

order  dated  9.2.2011,  the  Special  Judicial  Magistrate  (CBI)  Ghaziabad,  

rejected  the  prayer  made  by  the  CBI  for  closure  of  the  case  due  to  

insufficient  evidence.   Simultaneously,  the  Magistrate  summoned  

Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face trial under Section  

302 read with Section 34 and Section 201 read with Section 34 of  the  

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Indian Penal Code.  The summoning order dated 9.2.2011 was assailed by  

the petitioners by filing Criminal Revision no. 1127 of 2011 before the High  

Court  of Judicature at Allahabad.  The aforesaid challenge made under  

Section 482 of the Code of Criminal Procedure, was rejected by the High  

Court on 18.3.2011.  Dr. Rajesh Talwar assailed the order passed by the  

High  Court  by  filing  Special  Leave  Petition  (Crl.)  No.  2981  of  2011,  

whereas, the said order was assailed by Dr. Mrs. Nupur Talwar by filing  

Special Leave Petition (Crl.) No. 2982 of 2011.  The challenge raised by  

the petitioners was declined by this Court vide an order dated 6.1.2012 (in  

Special  Leave Petition (Crl.)  No.  2982 of  2011 filed by Dr.  Mrs.  Nupur  

Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of  

2011  filed by Dr.  Rajesh Talwar).   The aforesaid  rejection  order  dated  

9.1.2012 is being extracted hereinbelow:-

“We have heard learned counsel  for  the parties.   It  appears  that  pursuant to the order of this Hon’ble Court in Criminal Appeal No. 68  of  2012 titled “Dr. Mrs. Nupur Talwar versus C.B.I.  Delhi & Anr.”,  whereby this Hon’ble Court upheld the order dated 9.2.2011 of the  Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01  of 2011 whereby cognizance was taken, the petitioner herein would  appear before the Special Judicial Magistrate (CBI), Ghaziabad on  4.2.2012 which, we understand, is the date fixed for hearing.

It is also not in dispute that the petitioner Dr. Rajesh Talwar is  on bail since 2008 virtually by an order dated 11th July, 2008 and he  also furnished bail bond pursuant to that order.  In that view of the  matter,  we direct  the petitioner – Dr.  Rajesh Talwar to remain on  bail.  It is understood that the petitioner has already deposited his  passport  and  the  same  is  lying  with  the  Court  of  the  learned  Magistrate.  In the meantime, the petitioner shall not leave the local  Police  Station  without  obtaining  the  permission  of  the  learned  Magistrate.

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With this order, the present Special Leave Petition is disposed  of.   We make it clear that this order will  not prevent either of the  parties  from  moving  such  application  as  they  are  entitled  to  in  accordance with law.”

5. The instant two transfer petitions seeking transfer of the proceedings  

in Special Case No. 01/2011 from the Court of Special Judicial Magistrate  

(CBI) Ghaziabad, to a Court of competent jurisdiction at Delhi/New Delhi,  

have  been  separately  filed  by  Dr.  Rajesh  Talwar  and  Dr.  Mrs.  Nupur  

Talwar,  primarily  on the grounds of  convenience and personal  security.  

During the course of hearing, learned counsel for the petitioners raised the  

following contentions on the issue of convenience:-

(i) It was submitted, that after the murder of Aarushi Talwar on  

the  night  intervening  15.5.2008  and  16.5.2008,  for  the  

petitioners to reside in the same premises where the murder  

of  their  daughter  had  been  committed,  had  become  

impossible.   Consequently,  they had shifted  their  residence  

from Noida to New Delhi.  As such, it  was submitted that it  

would be more convenient for the petitioners to face trial  in  

Delhi/New Delhi rather than at Ghaziabad.

(ii) Ghaziabad, it was pointed out, was farther away from Noida  

(where the murder was committed) than New Delhi.  In this  

behalf,  it  was  submitted,  that  distance  between  Noida  and  

Ghaziabad is 35 kms., whereas, the distance between Noida  

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and New Delhi is only 17 kms.  Based on the traffic situation  

between  Delhi  and  Ghaziabad,  it  was  submitted,  that  the  

petitioners  would  have to  undertake  several  hours  of  travel  

time to  attend  Court  proceedings  on  each date  of  hearing.  

This  inconvenience  could  be  avoided  if  the  proceedings  in  

question were transferred from Ghaziabad to Delhi/New Delhi.

(iii) It was pointed out, that since the first information report was  

lodged  by  the  CBI  at  New Delhi  itself,  there  would  be  no  

difficulty in proceeding with the case at Delhi itself.

(iv) It  was  also  contended,  that  holding  trial  before  a  Court  of  

competent  jurisdiction  at  Delhi/New  Delhi  would  also  be  a  

matter of convenience to the prosecuting agency,  inasmuch  

as, the counsel, as also the officials/officers of the CBI were  

Delhi/New Delhi based, and they too would not have to travel  

to Ghaziabad on each date of hearing.

(v) Lastly,  it  was  asserted,  that  a  large  number  of  witnesses  

would also have to be summoned from outside U.P.  It was  

also  pointed  out,  that  these  witnesses  would  have  to  

unnecessarily travel to Ghaziabad.  Just like the petitioners, all  

outside  witnesses  would  likewise  face  avoidable  

inconvenience,  if  the  prayer  made  in  the  instant  petition  is  

accepted.

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6. On the issue of personal security, learned counsel for the petitioners  

contended, that when the petitioners had gone to attend court proceedings  

at  Ghaziabad on  25.1.2011,  and whilst  they were  physically  inside  the  

court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious  

attack at  the hands of one Utsav Sharma, with a cleaver knife.   It  was  

submitted,  that  Dr.  Rajesh  Talwar  suffered  grievous  injuries  and  was  

rushed to undergo several reconstructive surgeries in the intensive care  

unit of the Indraprastha Apollo Hospital, New Delhi.  While explaining the  

assault, it was pointed out, that Dr. Rajesh Talwar was given three blows  

with the meat cleaver causing a grevious injury on the right side of  his  

forehead, which also resulted in the rupture of a major artery, and also,  

serious injuries on both of his hands.  It was also alleged, that Dr. Rajesh  

Talwar was rendered handicapped as a result of the injuries inflicted upon  

him by Utsav Sharma, for more than two months.  It was pointed out, that a  

first information report was registered by Dr. Dinesh Talwar (brother of Dr.  

Rajesh Talwar) at police station Kavi Nagar, Ghaziabad on 25.1.2011, in  

connection with the aforesaid assault.  The aforesaid encounter within the  

court  premises,  according  to  learned  counsel  for  the  petitioners,  has  

completely shaken the confidence of the petitioners.  The petitioners are  

stated to be under deep fear of attending court-proceedings at Ghaziabad  

after the said assault.  Relying on the judgment rendered by this Court in  

Maneka Sanjay Gandhi Vs. Rani Jethmalani,  (1979) 4 SCC 167, it  was  

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asserted,  that  this  Court  had authoritatively  held,  that  the safety of  the  

person of an accused (as also, the complainant) is an essential condition  

for participation in a criminal  trial.   Where safety itself  is put in peril  by  

commotion,  tumult  or  threat  on  account  of  pathological  conditions  

prevalent in a particular venue, it was submitted, a request as the one in  

the instant case, for transfer of proceedings should be acceded to.  Insofar  

as  the  present  case  is  concerned,  it  was  submitted  on  behalf  of  the  

petitioners,  that  the  circumstances  in  the  present  case  have  gone  far  

beyond the possibility of a physical assault, inasmuch as, a brutal physical  

attack  has  actually  been  made  on  Dr.  Rajesh  Talwar  (on  25.1.2011).  

Relying on the judgment  rendered by this  Court  in  Zahira  Habibulla  H.  

Sheikh Vs. State of  Gujarat,  (2004) 4 SCC 158, it  was contended, that  

justice should not only be done but it should be seen to be done.  It was  

pointed out, that where circumstances are such that render holding of a fair  

and impartial trial, uninfluenced by extraneous considerations impossible,  

an apprehension expressed by an individual seeking transfer, should be  

accepted as reasonable.  Inviting the Court’s attention to the incident of  

25.1.2011,  it  was  submitted,  that  there  could  be  no  doubt,  that  in  the  

circumstances  prevalent  in  the  courts  at  Ghaziabad,  the  apprehension  

expressed by the petitioners, that they are unlikely to be subjected to a fair  

and  impartial  trial,  uninfluenced  by  extraneous  considerations,  is  not  

unreal.  Relying on the judgment rendered by this Court in Central Bureau  

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of Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC 115, it was  

submitted, that in a case wherein the CBI itself felt that there was a real  

danger of the accused being physically attacked during the course of the  

trial,  this Court  came to be approached (by the CBI) for transfer  of  the  

venue of prosecution.  The prayer made by the CBI was acceded to by this  

Court by observing, that there could be no quarrel, that there was a real  

possibility of a physical attack on the respondent-accused so long as he  

was  at  Manipur.   Yet  again,  it  is  emphasized  by  the  learned  counsel  

appearing on behalf of the petitioners, that the present case stands on a  

far  better  footing,  inasmuch  as,  a  factual  assault  resulting  in  serious  

injuries has actually been suffered by Dr. Rajesh Talwar within the court  

premises at Ghaziabad.  It is, therefore,  contended, that the fear in the  

minds of the petitioners, is not imaginary.   The fear in the minds of the  

petitioners, is very real and bonafide.  In order to support the prayer of the  

petitioners on the facts delineated hereinabove,  learned counsel  for the  

petitioners placed reliance on the judgment rendered by this Court in Ravir  

Godbole Vs. State of M.P., (2006) 9 SCC 786.  The order relied upon by  

the petitioners is being extracted hereinbelow:-

“1. We have heard counsel for the parties. 2. The petitioner is being tried of an offence punishable under  

Section 307 IPC.  The trial was to take place at Indore but, in  view of the fact that the rival gang has been after his blood  and  two  attempts  were  made  on  his  life,  the  High  Court  transferred his trial to Bhopal.  It appears that even during the  trial  at  Bhopal  he  was  attacked  a  third  time  and  serious  

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injuries  were  caused  to  him  which  necessitated  his  being  admitted to the hospital and an operation being performed to  repair his damaged liver.

3. In these circumstances, the petitioner has prayed that his case  may be  transferred  to  any  court  outside  the  State  of  M.P.  Counsel  for  the  State  does  not  dispute  the  fact  that  the  petitioner has been attacked thrice during this period and he  does face danger to his life.  Of course, the State contends  that it will  provide him with protection such as is considered  necessary.  We notice that a gunman was deputed to provide  security to the petitioner but despite that he was attacked a  third  time  causing  him  serious  injuries,  and  the  gunman  deputed  to  protect  him  could  do  nothing  except  to  make  himself scarce.

4. In these facts and circumstances, we transfer Sessions Trial  No. 65 of 2004 pending before the Special Court (Atrocities),  Bhopal Sessions Court, Bhopal to the Court of the District and  Sessions Judge, Nasik who may try the case himself or assign  the trial to a court of competent jurisdiction.  The record of the  case shall be immediately transmitted by the Bhopal Sessions  Court to the Court of the District and Sessions Judge, Nasik.

5. This transfer petition is allowed.”            (emphasis is ours)

7. It  would  be  relevant  to  notice,  that  in  the  pleadings  of  the  two  

transfer petitions, the petitioners have raised a third ground (besides those  

of  convenience  and  personal  security,  referred  to  in  the  foregoing  

paragraphs).   No submissions  were  addressed  in  connection  therewith  

during the course of  hearing.   Reference to the third  ground has been  

made in this order only because it was pointed out by the learned counsel  

representing the CBI, that the petitioners had alleged, that they were not  

likely to get justice, as it appeared to them, that the Ghaziabad court was  

proceeding with the matter with a pre-determined mind.  The cause of the  

petitioners instant   impression (as per the pleadings),  emerges from an  

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application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of  

the Code of Criminal Procedure.  In the aforesaid application, Dr. Rajesh  

Talwar had sought exemption from personal appearance, on the ground  

that he had suffered a physical assault in the court premises on 25.1.2011,  

and had been advised bed rest.   The Special  Judicial  Magistrate  (CBI)  

Ghaziabad, had rejected the application for exemption, and issued bailable  

warrants against Dr. Rajesh Talwar.  Insofar as Dr. Mrs. Nupur Talwar is  

concerned, she too had sought exemption from personal appearance on  

the  ground,  that  she  had to  file  an  affidavit  at  Allahabad  in  a  criminal  

revision petition,  to assail  the summoning order  dated 9.2.2011(refer  to  

paragraph 4 above).  It is submitted, that the application filed by Dr. Mrs.  

Nupur Talwar was also declined.  In the order dated 28.2.2011 the Special  

Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants  

against the petitioners.  From the aforesaid determination, it was sought to  

be  inferred,  that  the  petitioners  were  not  likely  to  get  justice,  as  the  

Ghaziabad Court  was proceeding with the matter with a pre-determined  

mind.

8. During the course of hearing, another ground was also canvassed  

on behalf of the petitioners, although no mention thereof had been made in  

the pleadings of the two transfer petitions.  During the course of hearing,  

our attention was invited by the learned counsel appearing on behalf of the  

petitioners,  to an affidavit  dated 24.2.2012 filed by Shri  Praveen Kumar  

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Rai, Advocate.  The said Shri Praveen Kumar Rai, in his affidavit, interalia  

deposed,  that  on  25.1.2011,  the  Special  Judicial  Magistrate  (CBI)  

Ghaziabad, had noticed the sensitivity of the case and had, by invoking the  

court’s  inherent  power  under  Section  327  of  the  Code  of  Criminal  

Procedure, directed, that no person would be allowed to enter the court-

room except the parties to the case or their respective counsel; yet during  

the course of hearing on 4.2.2012, a lot of media-persons and advocates  

unrelated to the case, were present inside the court-room.  While dilating  

on the court  proceedings conducted on 4.2.2012,  without disclosing the  

identity of any particular counsel/advocate, it was averred in paragraphs 5  

and 6 (of the affidavit dated 24.2.2012) as under:-

“5. That one of the advocates, who on earlier occasion has been  rebuked by the Ld. Magistrate and certain strictures have also  been  passed  against  him as  well,  was  also  present  in  the  Court room.  It is pertinent to mention here that on 7.1.2011  the said counsel had filed an application and thereafter during  the course of arguments on the said application misbehaved  with the Court and others therein.  The Ld. Magistrate in her  order  dated  21.1.2011  while  dismissing  the  application  disapproved  the  behaviour  of  the  counsel  and  passed  strictures  after  warning  him  for  future.   However,  the  said  warning and strictures have not affected him at all.   He not  only  interfered  in  the  case,  but  also  attempted  to  stop  the  counsels  for  the  petitioner  herein  from  advancing  their  submissions.  The deponent immediately brought this to the  notice  of  the  Ld.  Magistrate  but  to  no  avail  and  the  interruptions continued in the proceedings.  It is germane to  state that the concerned advocate does not represent either  the prosecution or the accused persons and thus, no privilege  of hearing can be extended to the concerned advocate.  A true  translated  copy  of  the  order  dated  21.1.2011  is  annexed  herewith and marked as Annexure A-2.

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6. That faced with such a perilous situation the counsels did not  have  any  option  but  to  file  an  application  before  the  Ld.  Magistrate  for  taking  appropriate  actions  and  passing  necessary directions in the matter.  The said application is still  pending.  A photocopy of certified copy of the said application  dated 4.2.2012 is annexed herewith and marked as Annexure  A-3.”

It  is also necessary to extract hereunder the application dated 4.2.2012  

(appended  as  Annexure  A-3  to  the  affidavit  dated  24.2.2012)  of  Shri  

Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar:-

“Sir, It is most respectfully submitted that in the above noted case  the applicants counsels appear before the Hon’ble Court today  to move application in the light  of  order  passed by Hon’ble  Supreme  Court  in  Transfer  Petition.   The  counsel  for  applicants  were  restrained  by  some  other  Advocates  who  have  no  concern  with  the  case  during  the  course  of  their  submission.  This happened even when, the order passed by  Hon’ble Court dated 25.1.2011 U/s 327 Cr.P.C. is still in force.

It is, therefore, most humbly prayed that in the above  said reason and in the interest of justice Hon’ble Court may  kindly  restrained  the  persons  and  advocates  who  have  no  concerned in the case by entering in the Court room during  the hearing of the case.”

Based on the aforesaid factual position it is contended that the petitioners  

have  strong  reservations  whether  unimpaired  proceedings  are  at  all  

possible in the case in hand.  It is therefore contended, that it would be in  

the  fitness  of  the  matter,  to  transfer  proceedings  in  the  case,  from  

Ghaziabad to Delhi/New Delhi

9. We have  recorded  hereinabove  the  four  different  grounds  under  

which the petitioners have sought to press their claim for transfer of the  

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proceedings pending before the court  of  the Special  Judicial  Magistrate  

(CBI), Ghaziabad, U.P., to a court of competent jurisdiction at Delhi/New  

Delhi.  It would be appropriate and in the fitness of matters to first record  

the response of the learned Senior Counsel representing the CBI to each  

of the issues.  The submissions of the learned counsel representing the  

respondents are therefore being summarized hereinafter:-

10. As  noticed  in  paragraph  5  hereinabove,  the  foremost  contention  

seeking  transfer  of  proceedings  from Ghaziabad  to  Delhi/New Delhi  is  

based on the inconvenience of the petitioners to travel from New Delhi to  

Ghaziabad on each date of hearing.  In so far as the instant aspect of the  

matter is concerned, it was the contention of the learned counsel for the  

respondents, that shifting of the residence of an accused cannot be a valid  

justification for seeking transfer, nor is the place where the first information  

report  was  registered  by  the  CBI  relevant  for  the  said  purpose.   It  is  

submitted that the identity of the jurisdictional court is determined on the  

basis  of  the  provisions  of  the  Code  of  Criminal  Procedure,  wherein  

residence  of  the  accused  and  the  place  of  registration  of  the  first  

information  report  are  inconsequential.   In  so far  as  the  inconvenience  

alleged  by  the  petitioners  to  travel  to  Ghaziabad  is  concerned,  it  was  

brought to our notice that 72 of the witness likely to be produced during the  

course of the prosecution under reference, are located in the State of Uttar  

Pradesh, whereas, 61 witnesses are from Delhi or from outside U.P.  Of  

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the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees  

of  the  Central  Forensic  Science  Laboratory  or  the  All  India  Institute  of  

Medical Sciences, New Delhi; 6 witnesses are from telephone companies,  

20 witnesses have been examined earlier out of which some are relations  

of the petitioners themselves; and of the remaining two witnesses one is  

from Punjab and the other is from Haryana.  It is also submitted, that none  

of the 61 witnesses, to be produced from Delhi or from outside U.P., have  

expressed inconvenience to depose before the Special Judicial Magistrate  

(CBI), Ghaziabad, U.P.  It is contended, that the distance between Noida  

and  Ghaziabad,  as  also,  between  Noida  and  Delhi  depicted  in  the  

submissions  advanced  by  the  learned  counsel  for  the  petitioners  are  

irrelevant.  It is submitted, that the issue of jurisdiction is never determined  

on the basis of distance(s), but is based on the territorial jurisdiction of the  

court within which an offence has been committed.  It is submitted that Dr.  

Rajesh  Talwar  and  Dr.  Mrs.  Nupur  Talwar  have  been  attending  court  

proceedings at Ghaziabad since 2008, i.e., for the last about three years.  

It  is  pointed  out,  that  neither  of  the  petitioners  ever  expressed  

inconvenience to participate in the court proceedings at Ghaziabad hitherto  

before.  However, all these pleas are being raised only after the Special  

Judicial  Magistrate  (CBI),  Ghaziabad,  U.P.,  by  his/her  order  dated  

9.2.2011 had summoned the petitioners  to face trial  under Section 302  

read with Section 34 of the Indian Penal Code, and Section 201 read with  

15

Section 34 of  the Indian Penal  Code,  in connection with  the murder of  

Arushi  Talwar.   It  is  accordingly  submitted  that  the  plea  raised  by  the  

petitioners for transfer  of  proceedings on the basis  of  inconvenience,  is  

wholly trumped up and ought to be rejected.

11. In  so  far  as  the  second  issue  canvassed  at  the  hands  of  the  

petitioners on the ground of personal security is concerned (see paragraph  

6  hereinabove),  learned  Senior  Counsel  representing  the  respondents  

invited  our  attention  to  the  counter  affidavit  filed  on  behalf  of  the  

respondent-CBI, wherein, while repudiating the contention advanced at the  

hands of  the petitioners,  it  has been pointed out  that  the attack on Dr.  

Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011 was at the  

hands of  a psychologically disturbed person hailing from Varanasi,  who  

had come to Ghaziabad from Ahmedabad (in Gujarat).  It is therefore the  

contention of the learned counsel for the respondents, that the attack was  

not aimed at interfering with the petitioners right to defend themselves, but  

because of  mental  imbalance of  the attacker.   It  is  submitted,  that  the  

same person Utsav Sharma had also attacked DGP Rathore in a court-

premises at Chandigarh, prior to having attacked Dr. Rajesh Talwar.  It is  

therefore contended, that the physical  attack on Dr. Rajesh Talwar was  

certainly not aimed at disrupting court-proceedings or interfering with the  

defence of the petitioners.  As such, it is submitted that the aforesaid stray  

incident cannot be a justifiable basis for seeking transfer of proceedings  

16

under Section 406 Cr.P.C. from the court of the Special Judicial Magistrate  

(CBI),  Ghaziabad,  U.P. to some other court  of  competent  jurisdiction in  

Delhi/New  Delhi.   Learned  counsel  representing  the  respondents  also  

pointed out, from the counter affidavit filed by the CBI, that the Sessions  

Judge, Ghaziabad had personally reviewed the security arrangements in  

the  entire  court-premises  at  Ghaziabad,  whereupon,  security/police  

personnel have been deployed to prevent any similar untoward incident in  

future.  It was also brought to our notice, from the counter affidavit filed by  

the CBI, that the venue of the proceedings relating to the petitioners, has  

been shifted to a new building, which has a proper boundary wall on all  

sides, with only one small entrance.  The counter affidavit also records an  

assurance, that as and when the case of the petitioners will be fixed for  

hearing, proper police force will be deployed by the local administration, to  

ensure safety and security of the petitioners.  It is therefore the contention  

of the learned Senior Counsel representing the CBI, duly supported by the  

learned counsel for the State of Uttar Pradesh, that all possible care will be  

taken, for the safety and welfare of the petitioners.

12. Even though learned counsel  representing  the  petitioners  did  not  

canvass the third ground (see paragraph 7 hereinabove) during the course  

of hearing, yet learned counsel for the respondents had expressly drawn  

our attention to the same.  The purpose of inviting our attention to the third  

ground was to demonstrate, that the petitioners have not even spared the  

17

presiding officer of the court.  The petitioners have cast aspersions on the  

court itself.  It has been averred in the pleadings, that the petitioners are  

not  likely  to get  justice from the Ghaziabad court,  because the Special  

Judicial  Magistrate  (CBI),  Ghaziabad,  U.P.  by  his/her  order  dated  

28.2.2011 had declined the prayer made by the petitioners for exempting  

them  from  personal  appearance,  and  since  the  petitioners  had  not  

appeared on 28.2.2011, the court had issued bailable warrants against the  

petitioners.   This, according to the learned Senior Counsel  representing  

the  respondents,  can  never  constitute  a  valid  basis  for  drawing  any  

inference  against  a  court,  specially  when  the  challenge  raised  by  the  

petitioners  in  assailing  the  order  dated  28.2.2011  (declining  exemption  

from personal  appearance,  and ordering issuance of  bailable  warrants),  

before the High Court of Judicature at Allahabad was rejected.  In fact, it is  

the contention of the learned Senior Counsel for the respondents, that the  

insinuation levelled on behalf of the petitioners is contemptuous in nature,  

and  calls  for  initiation  of  proceedings  against  the  petitioners  under  the  

Contempt of Courts Act, 1971.  Based on all  the submissions recorded  

hereinabove,  it  was  the  contention  of  the  learned  counsel  for  the  

respondents,  that  even  the  third  ground  raised  by  the  petitioners  for  

seeking transfer of proceedings under Section 406 of the Code of Criminal  

Procedure, cannot be accepted.

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13. In  so  far  as  the  last  contention  is  concerned  (see  paragraph  8  

hereinabove), the same was based on the affidavit of Shri Praveen Kumar  

Rai,  Advocate,  dated 24.2.2012.   It  was  submitted at  the hands of  the  

learned counsel for the respondents, that there was no occasion for the  

respondents to repudiate the same, as the factual position depicted therein  

does not emerge from the pleadings of the transfer petitions filed by the  

two petitioners.  It is therefore the contention of the learned counsel for the  

respondents,  that  the  petitioners  should  not  be  permitted  to  press  the  

instant  ground for  seeking transfer.   Be that  as it  may,  it  is  further  the  

contention of  the learned Senior Counsel  representing the respondents,  

that the allegations contained in the affidavit dated 24.2.2012 are vague,  

as  the  identity  of  the  counsel  who  attempted  to  stop  the  counsel  

representing the petitioners from advancing their submission, has not been  

disclosed.   In  the application  allegedly  filed  on 4.2.2012 (appended  as  

Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the  

counsel  who  restrained  the  counsel  representing  the  petitioners,  from  

making his submissions has also not been disclosed.  Accordingly,  it  is  

asserted  that  the  allegations  made in  the  last  submission  being  vague  

cannot be relied upon to accept the prayer of the petitioners for transfer of  

proceedings under Section 406 of the Code of Criminal Procedure.

14. We have noticed hereinabove the grounds of challenge canvassed  

at  the  hands  of  the  learned  counsel  for  the  petitioners,  as  also,  the  

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response thereto  at  the hands  of  the  learned counsel  representing  the  

respondents.  In so far as the issue of transfer of criminal proceedings from  

one court to another under Section 406 of the Code of Criminal Procedure  

is  concerned,  it  would  be  in  the  fitness  of  matters  to  examine  the  

parameters laid down by this Court  for transfer  of  proceedings.   In this  

behalf reference may, first of all, be made to the decision rendered in Sri  

Jayendra Saraswathy Swamigal (II), Tamil Nadu v. State of Tamil Nadu,  

(2005)  8  SCC  771,  wherein  in  paragraph  5,  this  court  recorded  the  

grounds on which transfer  was sought  and thereafter,  recorded its own  

determination in paragraph 23.  Accordingly, paragraphs 5 and 23 of the  

judgment are being extracted hereunder:

“5. The transfer of the case has been sought on several grounds and  basically speaking they are as under: (i)  The State  machinery  in  Tamil  Nadu and specially  the  Special  Investigation Team headed by Shri Prem Kumar, Superintendent of  Police,  has shown great  zeal and has made extraordinary efforts,  much beyond what is required under the law to anyhow secure the  conviction of the accused and to achieve that object has procured  and fabricated false evidence. (ii) The Chief Minister of the State of Tamil Nadu, who is also holding  the Home portfolio, has made statements on the floor of the House  that the petitioner and the other co-accused are actually involved in  the  murder  of  Sankararaman  and  has  also  given  some  press  statements  and  has  thereby  pre-empted  a  fair  decision  in  the  criminal trial, as statements of persons holding such high offices and  specially  those  made  on  the  floor  of  the  House,  are  generally  believed to be correct and thus the accused stand condemned even  before the commencement of the trial. (iii) A solatium of Rs 5 lakhs was paid by the Chief Minister of Tamil  Nadu to Padma Sankararaman (widow of deceased Sankararaman)  on  24-11-2004,  long  before  completion  of  investigation  and  

20

submission of charge-sheet, and this was given wide publicity in the  electronic media and newspapers, etc., which shows that the State  Government is taking special interest in the case and is too keen to  secure conviction of the accused in order to justify the stand taken  by it. (iv) Concocted and false cases have been registered against 16 co- accused.  Even  before  their  bail  applications  in  the  present  case  could be heard, detention orders were passed against them under  the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,  Drug  Offenders,  Forest  Offenders,  Goondas,  Immoral  Traffic  Offenders,  Slum Grabbers  and Video Pirates Act,  1982 (for  short  “the Goondas Act”) between 16-1-2005 and 6-2-2005 so that even  after grant of bail by the Court they may remain in custody. (v) The advocates appearing for the petitioner and other co-accused  have been put under great threat on account of lodging of false and  fabricated  criminal  cases  against  them and  a  situation  has  been  created wherein they may not be in a position to defend the accused  properly. This will also have a general effect as other lawyers would  feel hesitant to conduct the case on behalf of the accused. (vi) The Mutt and other associated and connected trusts have 183  accounts  in  banks,  which  were  all  frozen  by  SIT  resulting  in  paralysing the religious and other  activities of  the Mutt  and other  connected bodies. (vii)  Criminal  cases  have  been  lodged  against  some  leading  journalists of the country and other prominent personalities, who had  written articles criticising the arrest of the petitioner, which not only  violates  right  of  free  speech  but  also  creates  an  atmosphere  of  threat  against  anyone  daring  to  speak  or  write  in  favour  of  the  accused and thus the accused seriously apprehend that they would  not get a fair trial in the State of Tamil Nadu. (viii)  Shri  Prem Kumar,  who  is  heading  the  Special  Investigation  Team,  is  not  a  fair  and  upright  officer  and  superior  courts  have  passed  strictures  against  him  several  times  in  the  past  for  his  uncalled-for  actions in going out  of  the way to implicate innocent  persons in criminal cases.

23. We have discussed above many facets of the case which do  show that the State machinery in Tamil Nadu is not only taking an  undue interest but is going to any extent in securing the conviction of  the  accused by any  means  and to  stifle  even  publication  of  any  article or expression of dissent in the media or press, interview by  journalists or persons who have held high positions in public life and  

21

are wholly unconnected with the criminal  case. The affidavits and  the  documents  placed  on  record  conclusively  establish  that  a  serious attempt has been made by the State machinery to launch  criminal  prosecution  against  lawyers,  who  may be  even remotely  connected with the defence of the accused. The Superintendent of  Police, SIT and the Police Inspector connected with the investigation  even  went  to  the  extent  of  prompting  the  approver  Ravi  Subramaniam to make insinuation against  a very Senior Counsel,  who  has  been  practising  for  over  43  years  and  is  appearing  as  counsel for the petitioner. The other counsel had to file writ petitions  in  the  Madras  High  Court  for  seeking  a  direction  for  transferring  investigation of the criminal cases registered against them from the  local police to CBI.  The police submitted charge-sheet against two  junior lady lawyers under various sections of IPC including Section  201 IPC when even accepting every word in the FIR lodged by Smt  Chitra, wife of Ravi Subramaniam (approver) as correct, no offence  under the said provision is made out. Clause (1) of Article 22, which  finds place in Part III  of the Constitution dealing with fundamental  rights, gives a guarantee to a person arrested and detained to be  defended by a legal practitioner of his choice. Section 303 of the  Code of  Criminal  Procedure says that  any person accused of  an  offence before  a criminal  court  or  against  whom proceedings  are  instituted under the Code, may of right be defended by a pleader of  his choice. Even under the British rule when the Code of Criminal  Procedure, 1898 was enacted, Section 340(1) thereof gave a similar  right  to  an  accused.  It  is  elementary  that  if  a  lawyer  whom  the  accused  has  engaged  for  his  defence  is  put  under  a  threat  of  criminal prosecution, he can hardly discharge his professional duty  of defending his client in a fearless manner. A senior and respected  counsel is bound to get unnerved if an insinuation is made against  him in court that he approached the wife of a witness for not giving  evidence against the accused in the court. From the material placed  before us we are prima facie satisfied that a situation has arisen in  the present case wherein the lawyers engaged by the petitioner and  other co-accused cannot perform their professional duty in a proper  and dignified manner on account of various hurdles created by the  State  machinery.  The  lawyers  would  be  more  concerned  with  shielding  their  own  reputation  or  their  liberty  rather  than  cross- examining  the  prosecution  witnesses  for  eliciting  the  truth.  The  constant  fear  of  not  causing  any  annoyance  to  the  prosecution  witnesses specially those of the Police Department would loom large  over their mind vitally affecting the defence of the accused. Passing  of the detention order against 16 co-accused soon after grant of bail  

22

to the petitioner by this Court on 10-1-2005, which order could be of  some support in seeking parity or otherwise for securing bail in the  present  murder  case,  is a clear  pointer  to the fact  that  the State  wanted  to  deprive  them  of  any  chance  to  secure  release  from  custody. Even though this Court  has issued notice on the special  leave petition filed by the State against the order of the High Court  by which habeas corpus petition of the 16 co-accused was allowed,  yet the observations made in the said order show in unmistakable  terms that the even tempo of life was not disturbed, nor was public  order  affected by the murder  of  Sankararaman and the detention  order was passed without any basis. Again, the action of the State in  directing the banks to freeze all the 183 accounts of the Mutt in the  purported exercise of the power conferred under Section 102 CrPC,  which  had  affected  the  entire  activities  of  the  Mutt  and  other  associated  trusts  and  endowments  only  on  the  ground  that  the  petitioner, who is the head of the Mutt, has been charge-sheeted for  entering  into  a  conspiracy  to  murder  Sankararaman,  leads  to  an  inference that the State machinery is not only interested in securing  conviction  of  the  petitioner  and the  other  co-accused  but  also  to  bring to a complete halt the entire religious and other activities of the  various trusts and endowments and the performance of pooja and  other rituals in the temples and religious places in accordance with  the custom and traditions and thereby create a fear psychosis in the  minds of the people. This may deter anyone from appearing in court  and  give  evidence  in  defence  of  the  accused.  Launching  of  prosecution against prominent persons who have held high political  offices  and  prominent  journalists  merely  because  they  expressed  some dissent against the arrest of the petitioner shows the attitude  of the State that it cannot tolerate any kind of dissent, which is the  most cherished right in a democracy guaranteed by Article 19 of the  Constitution.”          (emphasis is ours)

Reference may also be made to the decision rendered by this Court  in  

Central Bureau of Investigation (CBI) v. Hopeson Ningshen, (2010) 5 SCC  

115,  wherein  this  Court  recorded  its  conclusion  in  the  following  

paragraphs:

“18. CBI  in  its  capacity  as  the  investigating  agency  has  clearly  conveyed  the  risks  associated  with  conducting  the  trial  in  Manipur.  

23

Even if one were to concede that the apprehension about social unrest  and communal tension between the Meteies and the Nagas were a little  exaggerated, there can be no quarrel that there exists a real possibility  of  a  physical  attack on the respondent-accused as long as he is  in  Manipur.  It  was  precisely  because  of  this  consideration  that  the  respondent-accused is  being held  in custody at  a distant  location in  Delhi.  Furthermore,  conducting  the  trial  in  Manipur  could  also  reasonably lead to more friction in the State of Manipur which in turn  could affect the trial proceedings themselves.

19. We must especially take note of the fact that the killings took place  in a region where opinions are sharply divided on the justness of the  causes espoused by NSCN(IM) and that the respondent-accused is a  member of the same organisation. This creates a risk of intimidation of  the witnesses as well  as undue prejudice seeping into  the minds of  those  who  may  be  involved  in  the  legal  proceedings  in  different  capacities.

20. In this scenario, in our considered view it would be expedient in the  ends of justice to conduct the trial in Delhi. We accordingly direct that  the impugned cases be transferred from the Court of the Chief Judicial  Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a  judicial officer of the rank of a Sessions Judge) in New Delhi.”

  (emphasis is ours)

The  scope  of  jurisdiction  under  Section  406  of  the  Code  of  Criminal  

Procedure was also considered by this Court in Surendra Pratap Singh v.  

State  of  Uttar  Pradesh,  (2010)  9 SCC 475,  wherein  this  Court  held  as  

under:

14. Mr Gupta submitted that except for wild allegations made against  the investigating authorities and the officials of the State Government,  nothing substantial has been disclosed from the submissions made on  behalf of the petitioner which would indicate that either the investigating  agencies or the prosecuting agency was in any way biased in favour of  Respondent 2. On the other hand, upon a fair investigation undertaken  by two separate agencies, which included CB CID, it had been found  that  Respondent  2  was  not  in  any  way  connected  with  the  alleged  incident of 24-6-2005. In fact, at the relevant time, the party to which he  

24

belonged was not in power which would enable him to influence the  course of investigation. Mr. Gupta submitted that no interference was  called  for  with  the  investigation  reports  submitted  both  by  the  local  police as also by CB CID, and the transfer petition was, therefore, liable  to be dismissed.

15. We have carefully considered the submissions made on behalf of  the respective parties. While the arrest of Respondent 2 may have been  stayed by the High Court, the circumstances in which the incident had  occurred on 24-6-2005 coupled with the fact that Respondent 2 was  returned as an MLA in the same elections, does to some extent justify  the  apprehension  of  the  petitioner  that  the  perspective  of  the  prosecution may become polluted. There is no getting away from the  fact that Respondent 2 is an MLA and that too belonging to the present  dispensation. Since justice must not only be done but must also seem  to  be  done,  this  case,  in  our  view,  is  an  example  where  the  said  idiomatic expression is relevant.

16. It would not be proper on our part to dilate on this question further  during the pendency of the trial.  We are, however, of the view that in  order to do fair justice to all the parties, the trial should be held outside  the  State  of  Uttar  Pradesh  and,  accordingly,  we  allow  the  transfer  petition and direct that the matter be transferred to the High Court of  Madhya  Pradesh which  shall  decide  the  place  and the  court  before  which the trial may be conducted.”           (emphasis is ours)

The issue in hand was also examined by this Court in Nahar Singh Yadav  

v.  Union  of  India,  (2011)  1  SCC  307.   Relevant  extract  including  the  

parameters delineated by this Court which ought to be kept in mind while  

considering an application for transfer and the consideration of the factual  

matrix  involved  in  the  controversy  dealt  with  are  being  extracted  

hereunder:

“21. Reverting to the main issue, a true and fair trial is sine qua non  of Article 21 of the Constitution, which declares that:

25

“21.  Protection of life and personal liberty.—No person shall be  deprived  of  his  ‘life’  or  ‘personal  liberty’  except  according  to  procedure established by law.”

It  needs  no  emphasis  that  a  criminal  trial,  which  may  result  in  depriving a person of not only his personal liberty but also his life  has to be unbiased,  and without  any prejudice for  or  against  the  accused.  An  impartial  and  uninfluenced  trial  is  the  fundamental  requirement of a fair trial, the first and the foremost imperative of the  criminal justice delivery system. If a criminal trial is not free and fair,  the criminal justice system would undoubtedly be at stake, eroding  the confidence of a common man in the system, which would not  augur  well  for  the  society  at  large.  Therefore,  as  and when  it  is  shown that the public confidence in the fairness of a particular trial is  likely  to  be  seriously  undermined,  for  any  reason  whatsoever,  Section  406  CrPC  empowers  this  Court  to  transfer  any  case  or  appeal  from one  High  Court  to  another  High  Court  or  from one  criminal  court  subordinate  to  one  High  Court  to  another  criminal  court  of equal  or superior  jurisdiction subordinate to another High  Court, to meet the ends of justice.

22. It is, however, the trite law that power under Section 406 CrPC  has to be construed strictly and is to be exercised sparingly and with  great  circumspection.  It  needs  little  emphasis  that  a  prayer  for  transfer should be allowed only when there is a well-substantiated  apprehension  that  justice  will  not  be  dispensed  impartially,  objectively  and  without  any bias.  In  the  absence  of  any material  demonstrating  such  apprehension,  this  Court  will  not  entertain  application for transfer  of  a trial,  as any transfer  of  trial  from one  State to another implicitly reflects upon the credibility of not only the  entire State judiciary but also the prosecuting agency, which would  include the Public Prosecutors as well.

XXX XXX XXX XXX

29. Thus, although no rigid and inflexible rule or test could be laid  down  to  decide  whether  or  not  power  under  Section  406  CrPC  should  be  exercised,  it  is  manifest  from a  bare  reading  of  sub- sections (2) and (3) of the said section and on an analysis of the  decisions of this Court that an order of transfer of trial is not to be  passed as a matter of routine or merely because an interested party  has expressed some apprehension about the proper conduct of a  trial. This power has to be exercised cautiously and in exceptional  

26

situations, where it becomes necessary to do so to provide credibility  to the trial. Some of the broad factors which could be kept in mind  while considering an application for transfer of the trial are:

(i) when it appears that the State machinery or prosecution is  acting hand in glove with the accused, and there is likelihood of  miscarriage  of  justice  due  to  the  lackadaisical  attitude  of  the  prosecution;

(ii)  when  there  is  material  to  show  that  the  accused  may  influence the prosecution witnesses or  cause physical  harm to  the complainant;

(iii)  comparative  inconvenience  and  hardships  likely  to  be  caused to the accused, the complainant/the prosecution and the  witnesses,  besides  the  burden  to  be  borne  by  the  State  exchequer in making payment of travelling and other expenses of  the official and non-official witnesses;

(iv)  a  communally  surcharged  atmosphere,  indicating  some  proof of inability of holding fair and impartial trial because of the  accusations made and the nature of the crime committed by the  accused; and

(v)  existence of some material from which it can be inferred  that some persons are so hostile that they are interfering or are  likely to interfere either  directly or indirectly  with  the course of  justice.

30. Having considered the rival  claims of  both the parties on the  touchstone of the aforestated broad parameters, we are of the view  that the apprehension entertained by CBI that the trial of the case at  Ghaziabad  may not  be  fair,  resulting  in  miscarriage  of  justice,  is  misplaced and cannot be accepted. From the material on record, we  are unable to draw any inference of a reasonable apprehension of  bias  nor  do  we  think  that  an  apprehension  based  on  a  bald  allegation that since the trial Judge and some of the named accused  had been close associates at some point of time and that some of  the witnesses are judicial officers, the trial at Ghaziabad would be  biased and not fair, undermining the confidence of the public in the  system.  While  it  is  true  that  Judges  are  human  beings,  not  automatons,  but  it  is  imperative  for  a  judicial  officer,  in  whatever  capacity he may be functioning, that he must act with the belief that  he is not to be guided by any factor other than to ensure that he  shall  render  a  free  and  fair  decision,  which  according  to  his  conscience is the right one on the basis of materials placed before  him. There is no exception to this imperative. Therefore, we are not  

27

disposed to believe that either the witnesses or the Special Judge  will get influenced in favour of the accused merely because some of  them  happen  to  be  their  former  colleagues.  As  already  stated,  acceptance of such allegation, without something more substantial,  seriously  undermines  the  credibility  and the  independence  of  the  entire  judiciary  of  a  State.  Accordingly,  we  outrightly  reject  this  ground urged in support of the prayer for transfer of the trial from  Ghaziabad.

31. As  regards  the  plea  that  the  Court  of  Special  Judge,  CBI,  Ghaziabad is already heavily overburdened, in our opinion, that is  again  not  a  ground for  transfer  of  trial.  If  at  all  the said  court  is  overburdened, it will be open to the High Court to request the State  Government  to  create  another  court  of  a  Special  Judge  at  Ghaziabad and we are confident that having regard to the nature of  the  case  and  the  serious  concern  already  shown  by  the  State  Government  by issuing Notification dated 10-9-2008 promptly and  expeditiously,  the State Government will  take appropriate steps in  that behalf so that the guilty are brought to book at the earliest not  only in this case but in other sensitive trials, stated to be pending in  that court, as well.

32. For the aforestated reasons, as at present, we do not find any  merit in the request of CBI for transfer of the trial from Ghaziabad to  any other place. Accordingly, the prayer is declined. The trial court is  directed to proceed with the case expeditiously.”    

(emphasis is ours)

The issue of  transfer  of  proceedings under Section 406 of  the Code of  

Criminal  Procedure  was  examined  by  this  Court  in   Vikas  Kumar  

Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178, wherein this Court  

observed as under:

“23. It  is true that there must be reasonable apprehension on the  part of the party to a case that justice may not be done and mere  allegation that  there is apprehension that  justice will  not  be done  cannot  be the basis for transfer.  However,  there is no manner of  doubt that the reasonable apprehension that there would be failure  

28

of justice and acquittal of the accused only because the witnesses  are threatened is made out by the petitioner.

24. This Court, on various occasions, had opportunity to discuss the  importance  of  fair  trial  in  criminal  justice  system  and  various  circumstances in which a trial can be transferred to dispense fair and  impartial justice. It would be advantageous to notice a few decisions  of this Court with regard to the scope of Section 406 of the Code of  Criminal Procedure.

XXX XXX XXX XXX

29. From the averments made in the petition it is evident that the  accused belong to a powerful gang operating in U.P. from which the  State of Uttarakhand is carved out. The petitioner has been able to  show the circumstances from which it  can be reasonably inferred  that it has become difficult for the witnesses to safely depose truth  because of fear of being haunted by those against whom they have  to depose.  The reluctance of  the witnesses to go to the court  at  Haridwar  in  spite  of  receipt  of  repeated  summons  is  bound  to  hamper  the  course  of  justice.  If  such  a  situation  is  permitted  to  continue, it will pave way for anarchy, oppression, etc., resulting in  breakdown  of  criminal  justice  system.  In  order  to  see  that  the  incapacitation of the eyewitnesses is removed and justice triumphs,  it  has become necessary to grant the relief  claimed in the instant  petition. On the facts and in the circumstances of the case this Court  is of the opinion that interest of justice would be served if transfer of  the case from Haridwar to Delhi is ordered.”

  (emphasis  is ours)

Last of all reference may be made to the decision rendered by this Court in  

Jahid Shaikh v. State of Gujarat,  (2011) 7 SCC 762.  The observations  

made by this Court with reference to Section 406 of the Code of Criminal  

Procedure, are placed below:

“39. 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  

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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 CrPC and Order 36 of  the Supreme  Court Rules, 1966 for the same reliefs.

40. 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.

41. 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  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. 42. 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 it open to the petitioners  that in the event the apprehension of the petitioners is proved to be  real during the course of the trial, they will be entitled to move afresh  

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before  this  Court  for  the  relief  sought  for  in  the  present  transfer  petition.”   (emphasis is ours)

It  is  in  light  of  the  parameters  recorded  by  this  Court  that  we  shall  

endeavour to determine the veracity of the prayer made by the petitioners  

for transfer of proceedings from the court of the Special Judicial Magistrate  

(CBI), Ghaziabad, U.P., to a court of competent jurisdiction in Delhi/New  

Delhi.   

15. First and foremost we shall deal with the ground of inconvenience  

raised by the petitioners for seeking transfer of proceedings.  In so far as  

the  instant  issue  is  concerned,  besides  the  judgments  referred  to  

hereinabove, reference may be made to the decision rendered in Bhairu  

Ram v. Central Bureau of Investigation, (2010) 7 SCC 799, wherein the  

issue of inconvenience was considered, and this Court held as under:

“10. In the case on hand, except convenience, the petitioners have  not pressed into service any other ground for transfer. In fact,  Mr  P.H. Parekh, informed this Court that the petitioners are willing to  attend the proceedings at Delhi, if the case is transferred to Special  Court, CBI, Delhi.

11. Mr H.P. Raval, learned Additional Solicitor General, after taking  us through specific averments made in the counter-affidavit filed on  behalf  of  Respondents  1  and  2  (CBI),  submitted  that  the  main  accused Shri B.R. Meena is a very influential person in the State of  Rajasthan and there is strong apprehension that due to influence of  Shri B.R. Meena, there would be no fair trial at Jaipur or any other  place in the State of Rajasthan. He also pointed out that the Court of  Special Judge, CBI at Greater Mumbai has ample jurisdiction to try  this case because various movable properties have been found in  Mumbai  and the main  accused,  Shri  B.R.  Meena,  was  posted  in  Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and  

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this is the period during which most of the properties were allegedly  acquired by him and his family members.

12. We have  already  adverted  to  the  fact  that  against  the  main  accused  Shri  B.R.  Meena,  (IRS  1977),  Commissioner  of  Income  Tax,  Income  Tax  Appellate  Tribunal,  Mumbai,  a  case  has  been  registered on 29-9-2005 under Section 13(2) read with Section 13(1) (e)  of  the  Prevention  of  Corruption  Act,  1988  for  possession  of  assets in his own name and in the name of his family members to  the extent of Rs 43,29,394 which were disproportionate to his known  sources of income and could not be satisfactorily accounted for. It  further shows that Respondent 3, during the check period i.e. 1-4- 1993 to 4-10-2005, acquired assets disproportionate to his known  sources of income to the extent of Rs 1,39,39,025.

13. The petitioners  have been charge-sheeted  for  commission  of  offences under  Section 109 read with  Section 193 IPC read with  Section  13(2)  read  with  Section  13(1)(e)  of  the  Prevention  of  Corruption  Act,  1988  for  having  actively  aided  and  abetted  Respondents  3  to  4  by  fabricating  false  evidence  through  preparation  of  false  agreements  to  sell  with  the  object  to  justify/explain  the  huge  cash  recoveries  from  the  residential  premises  of  Respondent  3.  It  further  reveals  that  the  petitioners  entered into false transactions with Respondent 3 showing receipt of  cash  amounts  against  alleged  purchase  of  immovable  properties  from  him.  The  stamp  papers  were  purchased  against  (sic after)  registration of case and false agreements to sell were prepared in  connivance with each other.

14. A perusal of the charge-sheet containing all these details clearly  shows  that  witnesses  to  be  examined  are  not  only  from  Jaipur,  Rajasthan,  but  also  from various  other  places  including  Mumbai.  Though the petitioners may have a little  inconvenience,  the mere  inconvenience  may  not  be  sufficient  ground  for  the  exercise  of  power of transfer but it must be shown that the trial in the chosen  forum will result in failure of justice.

15. We  have  already  pointed  out  that  except  the  plea  of  inconvenience on the ground that  they have to come all  the way  from Rajasthan no other reason was pressed into service. Even, the  request for transfer to Delhi cannot be accepted since it would not  be beneficial either to the petitioners or to the prosecution. In fact,  

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the main accused, Respondents 3 and 4 have not filed any petition  seeking transfer.  In such circumstances, the plea of the petitioners  for  transfer  of  the  case  from  the  Court  of  Special  Judge,  CBI,  Greater  Mumbai  to  Special  Judge,  CBI,  Jaipur  on  the  ground  of  inconvenience cannot be accepted.”  (emphasis  is  ours)

The ground of inconvenience for transfer again came up for consideration  

before this Court in Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803,  

wherein the Court observed as follows:

“5.  It is true that in cases of dissolution of marriage, restitution of  conjugal rights or maintenance, this Court shows much indulgence  to the wife and ordinarily transfers the case to a place where it would  be more convenient for the wife to prosecute the proceedings. But a  criminal case is on a somewhat different footing. The accused may  not  be  able  to  attend  the  court  proceedings  at  Indore  for  many  reasons,  one  of  which  may  be  financial  constraints,  but  the  consequences of non-appearance of the accused before the Indore  Court would be quite drastic.

6. Having  regard  to  the  consequences  of  non-appearance of  the  accused in a criminal trial, we are loath to entertain the petitioner's  prayer for transfer. In a criminal proceeding, the right of the accused  to a fair trial and a proper opportunity to defend himself cannot be  ignored for the convenience of the complainant simply because she  happens to be the estranged wife.” (emphasis is ours)

From the two judgments, referred to hereinabove, it clearly emerges that  

inconvenience cannot be a valid basis for transfer of “criminal proceedings”  

from one  court  to  another  under  Section  406  of  the  Code  of  Criminal  

Procedure.   Be  that  as  it  may,  we  are  of  the  view  that  the  instant  

contention advanced at the hands of the learned counsel for the petitioner  

is  wholly  frivolous.   According  to  the  factual  position  depicted  by  the  

learned  counsel  for  the  petitioners  themselves,  the  distance  between  

33

Noida and Ghaziabad is 35 kms. whereas the distance between Noida and  

Delhi is 17 kms.  Based on a simple mathematical conclusion the distance  

between  Delhi  and  Ghaziabad  must  be  approximately  52  kms.  

(35+17=52). It is ununderstandable how a plea of inconvenience can be  

based  to  avoid  travelling  a  distance  of  merely  52  kms.   Even  if  it  is  

assumed that a couple of hours would be consumed for travelling to and  

fro (from Delhi to Ghaziabad and back) the inconvenience would not be  

such as can be the basis for seeking transfer.  Jurisdiction of a court to  

conduct  criminal  prosecution  is  based  on  the  provisions  of  Code  of  

Criminal Procedure.  Often either the complainant or the accused have to  

travel across an entire State to attend to criminal proceedings, before a  

jurisdictional court.  In some cases to reach the venue of the trial court, a  

complainant  or  an  accused  may  have  to  travel  across  several  States.  

Likewise, witnesses too may also have to travel long distances, in order to  

depose before the jurisdictional  court.   If  the plea of  inconvenience for  

transferring the cases from one court to another, on the basis of time taken  

to  travel  to  the  court  conducting  the  criminal  trial  is  accepted,  the  

provisions  contained  in  the  Criminal  Procedure  Code   earmarking  the  

courts  having  jurisdiction  to  try  cases  would  be  rendered  meaningless.  

Convenience or inconvenience are inconsequential so far as the mandate  

of  law  is  concerned.   The  instant  plea  therefore,  deserves  outright  

rejection.

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16. In so far as the second contention advanced at the hands of  the  

counsel for the petitioner is concerned, transfer has been sought on the  

issue of threatened personal security.  The petitioners believed that their  

personal security is at risk on account of a vicious attack with a cleaver’s  

knife on Dr. Rajesh Talwar, which resulted in his having suffered grievous  

injuries not only on his face but on both his hands as well.  The injuries are  

stated to have rendered Dr. Rajesh Talwar handicapped for more than two  

months.   The aforesaid  incident  has allegedly had the effect  of  making  

both  the  petitioners  scared  to  attend  any  court-proceedings  at  the  

Ghaziabad court-complex.  The case set up by the petitioners is, that the  

incident  in  question  has  completely  shaken  the  confidence  of  the  

petitioners, and that, it is unsafe for the petitioners to appear before the  

Special Judicial Magistrate (CBI), Ghaziabad, U.P. to defend themselves.  

Whilst we are of the view that all preventive measures should have been in  

place  to  avoid  any  assault  of  the  nature  which  Dr.Rajesh  Talwar  

encountered on 25.1.2011, we appreciate the impossibility of the aforesaid  

task  specially  when  the  attacker  is  a  person  suffering  from  a  mental  

disability.   Such  an  attack  cannot  be  deemed  to  have  been  aimed  at  

disabling  the  petitioners  to  defend  themselves.   The  physical  assault  

suffered by the petitioner was clearly unrelated to their court-proceedings.  

In the aforesaid view of the matter, the incident relied upon by the learned  

counsel  for  the  petitioners  to  seek  transfer  of  proceedings  by  invoking  

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Section 406 of the Code of Criminal Procedure, is clearly misconceived.  

Even  otherwise,  the  counter  affidavit  filed  on  behalf  of  the  CBI  is  

categorical  on the issue in hand, to the effect that the Sessions Judge,  

Ghaziabad,  has  personally  reviewed  the  security  system  in  the  entire  

court-premises, security/police personnel have been deployed so that no  

untoward incident occurs in future.  Additionally, the venue of the court-

proceedings of the petitioners has been shifted to a new building which  

has proper boundary walls on all sides, with only one small entrance.  The  

building where the petitioners are required to attend the court proceedings  

is therefore totally safe.  In the counter affidavit filed by the CBI it has been  

expressed,  that  whenever  the  case of  the   petitioners’  is  to  be  heard,  

adequate police force would be deployed by the local administration.  The  

aforesaid undertaking (expressed in the counter affidavit, filed on behalf of  

the CBI has been endorsed by the learned counsel representing the State  

of Uttar Pradesh.  Even though it has been pointed out that the petitioners  

have not moved any application either to the Special Judicial Magistrate  

(CBI),  Ghaziabad,  U.P.  or  to  the  police  for  seeking  protection;  we  are  

assured,  if  such a request  is made at  the hands of  the petitioners,  the  

same will be duly considered in accordance with law.   We have extracted  

a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar  

Rai, Advocate in paragraph 8 hereinabove.  While perusing the aforesaid  

affidavit we noticed reference therein to an order dated 25.1.2011 passed  

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in  respect  of  the  proceedings  pending  before  the  Special  Judicial  

Magistrate (CBI), Ghaziabad, U.P.  While dealing with the contention in  

hand,  it  is  necessary  to  place  on  record  the  aforesaid  order  dated  

25.1.2011, the same is accordingly being extracted hereunder:-

“Under  the  circumstances  seeing  the  sensitivity  of  the  case,  by  invoking  inherent  provisions  under  section  327  Cr.P.C.  the  court  feels it in the interest of justice that during the proceedings of the  instant case no person shall be allowed to enter in the courtroom  except for the parties to the case and their respective counsels.

Sd/- Special Judicial Magistrate  

(CBI),Ghaziabad”   

The  aforesaid  order  reveals  the  seriousness  of  the  presiding  officer  

concerned.   So as to ensure not only the safety of the petitioners but also  

a free and fair trial, keeping in mind the sensitive nature of the case, an  

appropriate order has already been passed by the presiding officer.  We  

have  no  doubt  in  our  mind,  that  the  order  dated  25.1.2011  shall  be  

enforced in letter and in spirit.   In case of breach thereof we would expect  

the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate  

steps including coercive measures if necessary, to enforce the same.  The  

majesty of law must be maintained at all costs.   In the background of the  

aforesaid developments,  we are of  the view that the proceedings being  

conducted  at  the  court-complex  at  Ghaziabad,  cannot  be  termed  as  

unsafe, so as to be considered as threatening the personal security of the  

petitioners.   As  such,  we  find  no  merit  in  the  prayer  for  transfer  of  

37

proceedings from Ghaziabad to Delhi/New Delhi  even on the ground of  

personal security.

17. The third ground raised by the petitioners,  noticed in paragraph 7  

hereinabove, needs no adjudication at our hands on account of the fact  

that the same was not pressed by the learned counsel representing the  

petitioners during the course of hearing.  The details depicting the third  

ground  have  been  noticed  only  because  the  learned  Senior  Counsel  

representing the respondents insisted on inviting our attention to the fact  

that  the  petitioners  had  expressed  baseless  insinuations  against  the  

presiding officer of the court.  Based on certain insinuations the petitioners  

had asserted,  that  they were not likely to get  justice,  as the concerned  

court  was  proceeding  in  the  matter  with  a  pre-determined  mind.   The  

insinuations levelled by the petitioners are based on an order passed by  

the Special Judicial  Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011.  

Learned counsel for the petitioners advisedly refrained from pressing the  

instant ground during the course of hearing.  Even raising such a ground in  

the  pleadings,  to  state  the  least,  can  certainly  be  termed  as  most  

irresponsible.  The impertinence of the petitioners in the instant case, is  

magnified manifold because the order dated 28.2.2011 was assailed by  

the petitioners before the High Court of Judicature at Allahabad, but the  

challenge failed.  In this view of the matter, the insinuations can also be  

stated to have been aimed even at the High Court.   Although we could  

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have initiated action against the petitioners, yet in the peculiar facts and  

circumstances of this case, we refrain ourselves from doing so.  However,  

we consider it just and appropriate to warn the petitioners from any such  

impertinence in future.

18. In so far as the last contention advanced at the hands of the learned  

counsel  for  the  petitioners  is  concerned,  the  same  was  based  on  the  

affidavit of Shri Praveen Kumar Rai, Advocate dated 24.2.2012, as also,  

an application filed by the said counsel on 4.2.2012 (Annexure A-3 with the  

affidavit,  independently  extracted  hereinabove).   We  find  merit  in  the  

contention  advanced  at  the  hands  of  the  learned  Senior  Counsel  

representing  the  respondents,  that  the  application  dated  4.2.2012  

(Annexure A-3) as also the affidavit of Shri Praveen Kumar Rai, Advocate,  

dated  24.2.2012  are  vague,  and  as  such,  cannot  be  the  basis  of  a  

justifiable claim for supporting a prayer for transfer of proceedings, under  

Section 406 of the Code of Criminal Procedure.  As pointed out by the  

learned counsel for the respondents, even though allegations have been  

levelled in the application (dated 4.2.2012) as well as the affidavit (dated  

24.2.2012), that the petitioners counsel were prevented from discharging  

their  responsibility  appropriately;  neither  the application nor  the affidavit  

disclose  what  the  petitioners  counsel  were  prevent  from,  as  also,  the  

identity  of  those  responsible.   Therefore,  the  last  contention,  in  our  

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considered  view,  is  also  devoid  of  any  merit  and  as  such  deserves  

rejection.

19. For the reasons stated hereinabove, we find no merit in the Transfer  

Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar.  

It  is  not  possible  in the facts and circumstances of  this  case for  us  to  

conclude,  that the petitioners will  be deprived of a free and fair trial at  

Ghaziabad.   We  are  also  satisfied  that  there  is  no  well-substantiated  

apprehension,  that  justice  will  not  be  dispensed  to  the  petitioners  

impartially, objectively and without any bias.  It is also not possible for us to  

accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the  

hands of  a psychopath can be a valid basis  for  transfer  of  the present  

proceedings from Ghaziabad to Delhi/New Delhi.  In view of the measures  

adopted  by  the  Sessions  Judge,  the  CBI  and  the  State  Administration  

towards security arrangements in the court-premises generally, and also,  

the  special  arrangements  which  the  respondents  have  undertaken  to  

make,  with  particular  reference  to  the  petitioners,  we  are  satisfied  that  

justice will be dispensed to the petitioners in an atmosphere shorn of any  

fear  or  favour.    We have  extracted  the  order  passed  by  the  Special  

Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in paragraph  

16 hereinabove.  We wish to reiterate, that the order dated 25.1.2011 shall  

be enforced in letter and in spirit.   In case of breach thereof  we would  

expect  the  Special  Judicial  Magistrate  (CBI),  Ghaziabad,  U.P.  to  take  

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appropriate steps including coercive measures if necessary, to enforce the  

same.  The majesty of law must be maintained at all costs.  We have no  

doubt,  that  the  basis  on  which  the  petitioners  are  seeking  transfer  of  

proceedings  are  just  speculative  and  unjustified  apprehensions  based  

interalia  on  vague  and  non-specific  allegations.   The  instant  Transfer  

Petitions  are  accordingly  dismissed.   We  also  wish  to  caution  the  

petitioners,  from making any irresponsible insinuations with reference to  

court-proceedings.   The  proper  course  would  be,  to  assail  before  a  

superior  court,  any  order  which  may  not  be  to  the  satisfaction  of  the  

petitioners, in accordance with law.  

   …………………………….J.     (B.S. Chauhan)

   …………………………….J.     (Jagdish Singh Khehar)

New Delhi; March 2, 2012

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