REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRLIMINAL)  NO. 29 OF 2008

Vikas Kumar Roorkewal     ... Petitioner

Versus

State of Uttarakhand and others        ...Respondents

J U D G M E N T

J.M. Panchal, J.

By filing this petition under Section 406 of the Code  

of Criminal Procedure 1973 (“The Code”, for short), the  

petitioner, who is son of late Radhey Shyam and who is  

also the first informant in the case relating to the murder  

of his father, has prayed that the case titled as State Vs.

Aakash  Tyagi  and  others being  S.T.  No.  6  of  2007  

pending in the Court of learned Additional District Judge,  

Fast Track Court, Haridwar (Uttrakhand) arising out of  

crime  No.  182  of  2006  and  FIR  No.169  of  2006  be  

transferred  to  the  Court  of  competent  jurisdiction  at  

Delhi.  

2. The background facts as projected by the petitioner  

in the instant petition are as follows:-

Late  Radhey  Shyam  was  initially  appointed  

Executive  Engineer  in  Irrigation  Department  of  Uttar  

Pradesh.  In January, 2004 he was posted to look after a  

project known as Upper Ganga Link Canal Project, under  

which two rivers, namely, Ganga and Yamuna were to be  

linked.  It is claimed that because of his excellent track  

record, efficiency and honesty, he was promoted to the  

post of Superintending Engineer in November, 2005 and  

was placed in charge of the said project, the total cost of  

which was Rs.240 crores.  The project was intended to  

solve  the  long  standing  irrigation  and  drinking  water  

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problems of western U.P. and also to provide a solution to  

control floods.  He was brutally murdered in cold blood in  

broad day  light  in  the  afternoon of  June 18,  2006 by  

three persons at his residence located in his Camp 0ffice  

at Roorkee (Uttarakhand).  The petitioner, who claims to  

be an eye-witness,  has stated that  he  had chased the  

accused  but  they  had  escaped  and,  therefore,  he  had  

called the police  and reported the matter  to the police  

immediately.   The police on arrival  at  the place of  the  

incident  had  taken  the  deceased  to  the  Government  

Hospital where he was declared brought dead.  On the  

basis of the information given by the petitioner, the police  

had registered an FIR No. 169/2006 on 18.6.2006.  On  

the  same  day  post  mortem  on  the  dead  body  of  the  

deceased was conducted by the medical officers, on the  

intervention  of  the  District  Magistrate  (Uttarakhand).  

The murder of Radhey Shyam, Superintending Engineer  

of  U.P.  had sent shock waves throughout Uttarakhand  

and  U.P  and  in  the  engineering  and  bureaucratic  

community and the incident was widely reported in the  

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newspapers.   

3. Because of the high profile of the accused involved  

in the murder of the deceased engineer, the Uttarakhand  

police was found to be incapable/reluctant to investigate  

the  crime.   Therefore,  the  State  of  Uttar  Pradesh  had  

directed  the  Special  Task  Force  along  with  Special  

Operation Group to investigate the murder and to arrest  

the accused.  It may be mentioned that the Special Task  

Force along with Special Operation Group appointed to  

investigate  the  matter  and  to  arrest  the  accused  had  

conducted large number of raids.   All  the arrests were  

made by Special  Task Force,  Uttar Pradesh except one  

which  was  effected  by  the  Uttarakhand  police  on  the  

information of Special Task Force, Uttar Pradesh.   

4. It  is  mentioned  by  the  petitioner  that  large  scale  

corruption is prevailing in the Irrigation Department and  

earlier  two  Junior  Engineers  were  also  murdered  

brutally.   It  was reported that disputes concerning the  

contracts  which  were  entrusted  and  to  be  entrusted  

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under the project had emerged as the main reason for the  

murders of these engineers including that of late Radhey  

Shyam.   The  record  shows  that  after  investigation,  

charge-sheet  was  filed  and  charges  have  been  framed  

against accused persons, who are respondent Nos. 2 to 9  

in  the  Transfer  Petition,  under  Section  302  read  with  

Section  120B  of  the  Indian  Penal  Code  and  Section  

3(2)(V)  of  the  Scheduled  Castes  and  Scheduled  Tribes  

(Prevention  of  Atrocities)  Act,  1989.   The  trial  has  

commenced in  the  Court  of  learned Additional  District  

Judge, Fast Track Court, Haridwar (Uttarakhand) and by  

this time, one witness is already examined.

5. Grievance  of  the  petitioner  is  that  continuously  

threats  are  being  administered  to  his  family  including  

him and other witnesses that they would meet the same  

fate as that of the deceased, if they dare to depose before  

the Court.  The petitioner has mentioned that the first  

eye witness examined in the court, who was the driver of  

the deceased, has turned hostile because of the threats  

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given to him and the learned Judge presiding over the  

trial  could  not  do  anything  except  being  a  passive  

spectator.  The petitioner claims that he along with his  

wife was chased by the gang when they were enroute to  

Haridwar to appear before the court on May 25, 2007,  

and due to fear, they have not been able to appear before  

the court on several dates.   

6. The  petitioner  has  mentioned  that  the  other  

witnesses  who  are  yet  to  be  examined  are  regularly  

receiving/getting summons calling upon them to remain  

present before the court to tender testimony, but they are  

unable to appear and depose before the Trial  Court at  

Haridwar  due to  regular  threats  being administered  to  

them.   It  is  also  mentioned  by  the  petitioner  that  his  

mother on account of fear and threats has already left  

Roorkee and is staying with brother of the petitioner in  

Delhi and is thus unable to depose before the court at  

Haridwar.  What is claimed by the petitioner is that due  

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to the threats received by him, he and his wife who are  

material witnesses have also started residing at Delhi.  

7. The petitioner  has mentioned that he  has written  

several  letters/made  applications  and  prayed  the  

competent  authorities  to take immediate  action and to  

provide  security  to  him  and  other  witnesses,  but  no  

action has been taken.     

8. What  is  mentioned  in  the  petition  is  that  in  the  

Dainik Jagran newspaper published on June 8, 2007 it  

was reported that Sunil Rathi, responsible for murdering  

the deceased is running his gang in Uttar Pradesh and  

Uttarakhand from Dehradun Jail and has created wide  

spread  terror  which  would  not  permit  fair  trial  

commenced in case of the murder of the deceased.  The  

petitioner  has  mentioned  that  the  investigation  by  the  

police  is  not  impartial  and  has  been  influenced  by  

powerful people involved in the murder of the deceased.  

It  is  also  highlighted  that  the  trial  court  also  did  not  

make a serious effort to see that justice is done.  Thus,  

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by filing the instant petition, the petitioner has prayed to  

transfer the case pending in the court of learned District  

Judge, Fast Track Court, Haridwar to competent court of  

jurisdiction at Delhi.   

9. The  petition  was  placed  for  preliminary  hearing  

before the Court on May 1, 2008 and after hearing the  

learned counsel for the petitioner, this Court had ordered  

notices to be issued to the respondents.  On service of  

notice,  the  State  of  Uttarakhand  has  filed  counter  

affidavit  controverting  the  averments  made  in  the  

petition.  It is mentioned in the reply that the accused  

were arrested on different dates and proper investigation  

was made in the case.  And mobile phone used in the  

incident,  one  pistol  of  315  bore  from  Akash  Tyagi,  

cartridges,  motorcycle  having  blue  colour  etc.,  were  

ceased.  In the reply it is mentioned that on interrogation  

of Akash Tyagi and his co-accused other accused namely  

Vineet Sharma @ Chinu Pandit was arrested and that the  

accused are being tried for alleged commission of serious  

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offences.   According  to  the  reply  affidavit  Uttarakhand  

police was capable to investigate the case and was not  

reluctant to investigate but in view of allegations levelled  

against  local  police  investigating  the  case,  the  

investigation  was  handed  over  to  special  agency.   By  

filing reply, it is claimed by State of Uttarakhand that the  

petition  has  no  substance  and  the  same  should  be  

dismissed.  

10. The petitioner has filed rejoinder to the affidavit in  

reply filed on behalf of the State Government.   

11. The respondent No. 2, i.e., Kumar Gaurav has also  

filed  affidavit  in  reply  mentioning  inter  alia  that  the  

Transfer  Petition  is  wholly  misconceived  and  the  

allegations  leveled  therein  are  baseless,  vague  and  

incorrect  and,  therefore,  the  petition  should  be  

dismissed.  In the reply the respondent No. 2 has referred  

to a decision of this Court  in  Abdul  Nazar  Madani Vs.  

State of Tamil Nadu AIR 2000 SC 2293, wherein it is held  

that not only the convenience of the complainant alone  

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but convenience of the accused should also be taken into  

consideration  before  ordering  transfer  of  criminal  case  

from one State to another.  The reply proceeds to mention  

that the investigation is not yet complete and, therefore,  

if  the  trial  is  transferred  from  Haridwar  to  any  other  

State, the same shall have adverse effect on the trial and  

that there is every possibility that injustice and prejudice  

would be caused to the accused.  What is stated is that  

the  witnesses  proposed  to  be  examined  on  behalf  of  

accused would not be willing to travel to any other place  

for tendering defence evidence and, therefore, transfer of  

case  would  result  into  injustice  to  the  accused.  

According  to  the  reply,  the  present  case  is  a  classic  

example  of  trial  by  media  and  the  petitioner  who  is  

influential  and  had  widely  publicized  the  incident  has  

succeeded in falsely implicating the respondent No. 2 in  

the case.  The reply states that no ground is made out by  

the petitioner to transfer the case from Court of Haridwar  

to competent Court of jurisdiction at Delhi and therefore  

the petition should be dismissed.

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12. This Court  has heard the learned counsel  for  the  

parties at length and in great detail.  This Court has also  

considered  the  documents  forming  part  of  the  instant  

petition.

13. From the record of the case it is evident that several  

letters have been written and/or applications have been  

made  by  the  petitioner  making  grievances  about  the  

threats  administered  to  him  and  his  family  by  the  

accomplices of the accused.  However, it is an admitted  

position that no action, worth the name, is taken either  

by the SSP, Haridwar or by Government of Uttarakhand  

either to afford protection to the petitioner and his family  

or to thwart such threats made by the accused and/or  

their  accomplices.   It  is  relevant  to  notice  that  it  was  

claimed  by  the  prosecution  that  the  driver  of  the  

deceased was an eye-witness  and it  is  the case of  the  

petitioner that due to threats, he turned hostile.  The fact  

that the driver had turned hostile is not in dispute.  The  

fact  that  in  spite  of  the  receipt  of  several  summons  

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neither the petitioner nor his wife nor his family members  

nor other witnesses have been able to go to Haridwar to  

depose  before  the  Court  is  not  denied  by  the  State  

Government.  Therefore, this Court is inclined to accept  

the  case  of  the  petitioner  that  he  and other  witnesses  

have  not  been  able  to  respond  the  summons  only  

because  of  fear  to  their  lives  due  to  the  threats  

administered by the accomplices of the accused.  There is  

no  manner  of  doubt  that  because  of  chasing  of  the  

petitioner  and  his  relatives  by  the  accomplices  of  the  

accused, they have not been able to attend the Court and  

tender  evidence.   If  this  situation  continues  then  the  

prosecution would not be able to lead any evidence in  

such a brutal murder case and the accused will have to  

be  acquitted.   The  record  indicates  that  four  accused  

have been already enlarged on bail but neither the police  

nor the State agency has taken any steps for the purpose  

of getting their bail order cancelled.  

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14. The learned counsel  for  the  petitioner  has placed  

reliance on a decision of this Court in  Himanshu Singh  

Sabharwal vs. State of M.P. and others (2008) 4 SCR 783,  

where this Court in paragraphs 14 and 15 has observed  

as under: -

“14. "Witnesses"  as  Benthem  said:  are  the  eyes and ears of justice. Hence, the importance  and primacy of the quality of trial process. If  the  witness  himself  is  incapacitated  from  acting as eyes and ears of justice, the trial gets  putrefied and paralysed, and it no longer can  constitute a fair trial. The incapacitation may  be due to several factors like the witness being  not in a position for reasons beyond control to  speak  the  truth  in  the  Court  or  due  to  negligence  or  ignorance  or  some  corrupt  collusion.  Time  has  become  ripe  to  act  on  account  of  numerous  experiences  faced  by  Courts  on  account  of  frequent  turning  of  witnesses  as  hostile,  either  due  to  threats,  coercion, lures and monetary considerations at  the instance of those in power, their henchmen  and  hirelings,  political  clouts  and  patronage  and  innumerable  other  corrupt  practices  ingenuously  adopted  to  smoother  and  stifle  truth  and  realities  coming  out  to  surface  rendering  truth  and  justice,  to  become  ultimate  casualties.  Broader  public  and  societal interests require that the victims of the  crime  who  are  not  ordinarily  parties  to  prosecution  and  the  interests  of  State  represented by their  prosecuting  agencies  do  not suffer even in slow process but irreversibly  

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and  irretrievably,  which  if  allowed  would  undermine  and  destroy  public  confidence  in  the  administration  of  justice,  which  may  ultimately  pave  way  for  anarchy,  oppression  and injustice resulting in complete breakdown  and  collapse  of  the  edifice  of  rule  of  law,  enshrined and jealously guarded and protected  by the Constitution. There comes the need for  protecting  the witness.  Time has come when  serious  and  undiluted  thoughts  are  to  be  bestowed  for  protecting  witnesses  so  that  ultimate  truth  is  presented  before  the  Court  and  justice  triumphs  and  the  trial  is  not  reduced to mockery. The State has a definite  role to play in protecting the witnesses, to start  with at least in sensitive cases involving those  in  power,  who  has  political  patronage  and  could wield muscle and money power, to avert  trial  getting  tainted  and  derailed  and  truth  becoming  a  casualty.  As  a  protector  of  its  citizens it has to ensure that during a trial in  Court  the  witness  could  safely  depose  truth  without  any  fear  of  being  haunted  by  those  against  whom  he  has  deposed.   Some  legislative  enactments  like  the  Terrorist  and  Disruptive Activities (Prevention) Act, 1987 (in  short the 'TADA Act')  have taken note of the  reluctance  shown  by  witnesses  to  depose  against  dangerous  criminals-terrorists.  In  a  milder  form  also  the  reluctance  and  the  hesitation  of  witnesses  to  depose  against  people  with  muscle  power,  money  power  or  political  power  has  become  the  order  of  the  day. If ultimately truth is to be arrived at, the  eyes and ears of justice have to be protected so  that  the  interests  of  justice  do  not  get  incapacitated  in  the  sense  of  making  the  proceedings before Courts mere mock trials as  are usually seen in movies.  

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15. Legislative  measures  to  emphasise  prohibition  against  tampering  with  witness,  victim or informant have become the imminent  and  inevitable  need  of  the  day.  Conducts  which illegitimately  affect  the presentation of  evidence in proceedings before the Courts have  to be seriously and sternly dealt  with.  There  should  not  be  any  undue  anxiety  to  only  protect the interest of the accused. That would  be unfair as noted above to the needs of the  society. On the contrary, the efforts should be  to ensure fair trial where the accused and the  prosecution both get a fair deal. Public interest  in the proper administration of justice must be  given as much importance if not more, as the  interests  of  the  individual  accused.  In  this  courts have a vital role to play.”

15. Above judgment clearly enunciates the importance  

of witness in criminal trial.  This is a case of murder of a  

Superintending Engineer.  There is no manner of doubt  

that brutal assault was mounted on him which resulted  

into  his  death.   The  son  of  the  deceased  is  seeking  

transfer of proceedings on ground of coercion and threat  

to  the  witnesses  as  well  as  doubtful  sincerity  of  the  

investigating agency and prosecuting agency.  In effective  

cross-examination by public prosecutor of the driver who  

resiled  from  the  statement  made  during  investigation  

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speaks volumes about the sincerity/ effectiveness of the  

prosecuting  agency.   The  necessity  of  fair  trial  hardly  

needs emphasis.  The State has a definite role to play in  

protecting the witnesses, to start with at least in sensitive  

cases.  The learned Judge has failed to take participatory  

role in the trial.  He was not expected to act like a mere  

tape recorder to record whatever has been stated by the  

witnesses.  Section 311 of the Code and Section 165 of  

the Evidence Act confers vast and wide powers on Court  

to elicit all necessary materials by playing an active role  

in the evidence collecting process.  However, the record  

does not indicate  that the learned Judge presiding the  

trial  had  exercised  powers  under  Section  165  of  the  

Evidence  Act  which  is  in  a  way  complimentary  to  his  

other powers.  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  

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failure  of  justice  and  acquittal  of  the  accused  only  

because the witnesses are threatened is made out by the  

petitioner.  

16. 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 Code of  

Criminal  Procedure.   In  Gurcharan  Dass  Chadha vs.  

State of Rajasthan AIR 1966 SC 1418, this Court held as  

under: -

“A case is transferred if there is a reasonable  apprehension on the part of a party to a case  that justice will not be done.  A petitioner is  not  required to  demonstrate  that  justice  will  inevitably fail.  He is entitled to a transfer if he  shows  circumstances  from  which  it  can  be  inferred  that  he  entertains  an  apprehension  and that it is reasonable in the circumstances  alleged.   It  is  one  of  the  principles  of  the  administration  of  justice  that  justice  should  not only be done but it should be seen to be  done.  However, a mere allegation that there is  apprehension that justice will not be done in a  

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

In  Maneka Sanjay Gandhi vs.  Rani Jethmalani (1979) 4  

SCC 167, this Court has observed as under: -

“Assurance  of  a  fair  trial  is  the  first  imperative  of  the  dispensation of  justice  and  the central criterion for the court to consider  when a motion for transfer is made is not the  hypersensitivity  or  relative  convenience  of  a  party  or  easy  availability  of  legal  services  or  like  mini-grievances.  Something  more  substantial,  more  compelling,  more  imperilling,  from  the  point  of  view  of  public  justice  and  its  attendant  environment,  is  necessitous if the Court is to exercise its power  of  transfer.  This  is  the  cardinal  principle  although  the  circumstances  may  be  myriad  and vary from case to case. We have to test the  petitioner’s  grounds  on  this  touchstone  bearing  in  mind  the  rule  that  normally  the  complainant has the right to choose any court  having  jurisdiction  and  the  accused  cannot  dictate where the case against him should be  tried.  Even so,  the  process  of  justice  should  not harass the parties and from that angle the  court may weigh the circumstances.”  

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In  K. Anbazhagan vs.  Superintendent of  Police (2004) 3  

SCC 767, this Court held as under: -

“Free  and  fair  trial  is  sine  qua  non  of  Article  21 of  the  Constitution.  It  is  trite  law  that  justice  should  not  only  be  done  but  it  should  be  seen  to  have  been  done.  If  the  criminal trial is not free and fair and not free  from bias,  judicial  fairness  and  the  criminal  justice system would be at stake shaking the  confidence of the public in the system and woe  would be the rule of law. It is important to note  that in such a case the question is not whether  the  petitioner  is  actually  biased  but  the  question  is  whether  the  circumstances  are  such that there is a reasonable apprehension  in the mind of the petitioner.”

In Abdul Nazar Madani vs.  State of Tamil Nadu (2000) 6  

SCC 204, this Court observed as under: -

“The  purpose  of  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, 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  

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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 witness 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.”  

17. From  the  averments  made  in  the  petition  it  is  

evident  that  the  accused  belong  to  powerful  gang  

operating  in  U.P.  from which  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  

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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 eye-witnesses  

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.  

18. For  the  foregoing  reasons  the  petition  succeeds.  

The case titled as State Vs. Akash Tyagi & Others bearing  

ST No. 6 of 2007 pending in the Court of learned First  

Fast  Track  Court  /  A.D.J.,  Haridwar,  Uttarakhand  

arising out of  Crime No.  182/2006 and FIR No.169 of  

2006  is  hereby  transferred  to  competent  Court  of  

jurisdiction  at  Delhi.   The  investigating  agency,  the  

prosecution agency, the State of Delhi as well as State of  

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Uttarakhand and the learned Judge to whom the trial of  

the  case  may  be  made  over,  are  directed  to  take  

appropriate  steps  for  protecting  the  witnesses  and  to  

ensure that the trial concludes as early as possible and  

without  any  avoidable  delay.    The  Transfer  Petition  

accordingly stands disposed of.  

.....................................J. [J.M. Panchal]

.....................................J. [H.L. Gokhale]

New Delhi; January 11, 2011.

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