emphasis on sustenance of majesty of law by all concerned.
Seeking transfer at the drop of a hat is inconceivable. An
order of transfer is not to be passed as a matter of routine
or merely because an interested party has expressed some
apprehension about proper conduct of the trial. The power
has to be exercised cautiously and in exceptional situations,
where it becomes necessary to do so to provide credibility to
the trial. There has to be a real apprehension that there
would be miscarriage of justice.
In the instant case, we are disposed to think that
apprehension that has been stated is absolutely mercurial
and cannot remotely be stated to be reasonable. The
learned single Judge has taken an exception to the remarks
given by the learned trial judge and also opined about non-
examination of any witness by him. As far as the first
aspect is concerned, no exception can be taken to it. The
learned Sessions Judge, while hearing the application for
transfer of the case, called for remarks of the learned trial
judge, and in such a situation, he is required to give a reply
and that he has done. He is not expected to accept the
allegations made as regards his conduct and more so while
nothing has been brought on record to substantiate the
same. The High Court could not have deduced that he
should have declined to conduct the trial. This kind of
observation is absolute impermissible in law, for there is no
acceptable reason on the part of the learned trial judge to
show his disinclination. Solely because an accused has filed
an application for transfer, he is not required to express his
disinclination. He is required under law to do his duty. He
has to perform his duty and not to succumb to the pressure
put by the accused by making callous allegations. He is not
expected to show unnecessary sensitivity to such allegations
and recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in the
adjudicatory process. The unscrupulous litigants will
indulge themselves in court haunting. If they are allowed
such room, they do not have to face the trial before a court
in which they do not feel comfortable. The High Court has
gravely erred in this regard. So far as the non-examination
of the witnesses is concerned, as the factual score would
uncurtain, the matter had travelled to the High Court in
revision assailing the order passed under Section 319 CrPC.
Be that as it may, the High Court has not adverted to the
issue who was seeking adjournment and what was the role
of the learned trial judge. Grant of adjournment could have
been dealt with by the High Court in a different manner. It
has to be borne in mind that a judge who discharges his
duty is bound to commit errors. The same have to be
rectified. The accused has never moved the superior court
seeking its intervention for speedy trial. The High Court has
innovated a new kind of approach to transfer the case. The
High Court should have kept in view the principles stated in
K.P. Tiwari v. State of M.P. 1994 Supp. (1) SCC 540
which are to the following
effect:-
“… It has also to be remembered that the lower
judicial officers mostly work under a charged
atmosphere and are constantly under a
psychological pressure with all the contestants
and their lawyers almost breathing down their
necks—more correctly up to their nostrils. They
do not have the benefit of a detached atmosphere
of the higher courts to think coolly and decide
patiently. Every error, however gross it may look,
should not, therefore, be attributed to improper
motive.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1592-1593 of 2015
(@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)
Usmangani Adambhai Vahora
V
State of Gujarat & Anr.
Citation;(2016)3 SCC370
Dipak Misra, J.
Dated;JANUARY 8, 2016
The seminal issue that has emerged for consideration
in these appeals is whether the High Court in exercise of
jurisdiction under Article 227 of the Constitution of India is
justified in quashing the order dated 14.08.2015 passed by
the Principal Sessions Judge, Kheda at Nadiad in Criminal
Miscellaneous Application No. 545 of 2015 arising from the
Sessions Case No. 291 of 2003 instituted for the offencesPage 2
punishable under Sections 147, 148, 149, 364A, 120B, 447,
342 and 506(2) of the Indian Penal Code (IPC) and further
directing the learned Principal Sessions Judge to transfer
the Sessions Case to any other court of the learned
Additional Sessions Judge in the same Sessions Division
from the court of the 3rd Additional Sessions Judge, Kheda.
2. Be it stated at the beginning, the High Court has posed
two questions – one of which pertains to exercise of power
under sub-section (1) of Section 408 of the Code of Criminal
Procedure, 1973 (CrPC) by the Sessions Judge to transfer a
case from one Additional Sessions Judge to any other
Additional Sessions Judge in his Sessions Division after
commencement of the trial, and the other, whether the case
deserves to be transferred. Answering the first issue, the
High Court has opined that the transfer petition preferred
under Section 408 CrPC before the learned Principal
Sessions Judge is maintainable. The view expressed by the
High Court on this score appears to be correct and hence,
we affirm the same. The principal issue warranting
delineation is the justification for allowing application for
2Page 3
transfer from the court where the trial was pending to the
court of another learned Additional Sessions Judge.
3. The facts which are essential to be stated are that the
2
nd respondent faced trial for the offences mentioned
hereinbefore in Sessions Case No. 291 of 2003. After
examination of 18 prosecution witnesses, the informant
preferred an application under Section 319 CrPC for
arraigning one Natubhai Maganbhai Edanwala as an
accused in the sessions case. The said application was
rejected by the learned trial judge vide order dated
18.05.2006. Aggrieved by the aforesaid rejection, the
informant preferred Special Criminal Application No. 1444
of 2006 before the High Court which vide order dated
02.12.2011 rejected the same. The said order was assailed
before this Court in Special Leave Petition (Criminal) No.
17262 of 2012 which was dismissed on 11.01.2013 with the
observation that it would be open to the informant to file an
appropriate application under Section 319 CrPC, if at the
end of the examination of all the witnesses, some material is
3Page 4
found to connect the person sought to be arraigned as an
accused in the alleged crime. As the factual matrix would
exposit, the informant filed another application under
Section 319 CrPC after the examination of the prosecution
witnesses Nos. 19 to 23 and the application was allowed.
The newly arraigned accused preferred Special Criminal
Application No. 1731 of 2013 before the High Court
challenging the said order, and the High Court had stayed
the same.
4. As the factual score would undrape on 31.07.2015
when the sessions trial was fixed before the learned 3rd
Additional Sessions Judge, Kheda at Nadiad, as alleged, the
second respondent was standing in the parking area meant
for the four wheelers and at that time he could overhear
certain conversation between the informant and his son that
the trial would be surely taken up for hearing from the next
date onwards and all the accused persons would definitely
be convicted. As further alleged, the Presiding Officer said
something regarding the trial which the accused correlated
with the conversation he had overheard between the
informant and his son. Under such circumstances, he filed
4Page 5
Criminal Miscellaneous Application No. 545 of 2015 under
Section 408 CrPC before the Principal Sessions Judge,
Kheda for transfer of the sessions case to any other court in
the same Sessions Division. The learned Principal Sessions
Judges called for the remarks of the concerned Presiding
Officer and, after taking into consideration the remarks and
adverting to the position of law, rejected the application. The
learned Principal Sessions Judge while rejecting the
application had observed that once the trial commenced, he
had no jurisdiction to transfer the case in exercise of the
power under Section 408 CrPC. As has been stated earlier,
the High Court had unsettled the said view and we have no
hesitation to say correctly so.
5. The High Court, as has been indicated earlier, has
referred to the conversation between the parties and the
impression of the accused. After narrating the same, the
High Court has observed that the accused-petitioner
definitely is in dilemma and whether to term his
apprehension as reasonable or not, the result of the reaction
of a hypersensitive mind is the question. Thereafter, the
High Court has proceeded to observe that the learned trial
5Page 6
Judge had not examined any witness; that all witnesses
examined so far were examined by his predecessor in office;
that the Presiding Officer himself had also not indicated his
disinclination to hear the matter, and that apart, he had
offered quite a stiff resistance to the plea of transfer as the
same is revealed from his remarks forwarded to the
Principal Sessions Judge. After so stating, the learned
single Judge has held thus:-
“…I am sure that the present Additional Sessions
Judge would have acted in a true sense of a
Judicial Officer. But nevertheless, to ensure that
justice is not only done, but also seems to be
done and in the peculiar facts of the case, I feel
that it will be appropriate if the Principal
Sessions Judge transfers the case to any other
Additional Sessions Judge in the same Sessions
Division. I make it abundantly clear that the
transfer shall not be construed as casting any
aspersions on the learned Additional Sessions
Judge.”
6. On a careful scrutiny of the order passed by the High
Court, it is not clear whether the High Court has been
convinced that the accused has any real apprehension or
bias against the trial judge. However, the observations of
the learned single Judge, as it seems to us, is
fundamentally based on apprehension and to justify the
6Page 7
same, he has referred to the remarks offered by the learned
Additional Sessions Judge to the Sessions Judge when
explanation was called for. First, we shall refer to the issue
of apprehension. The apprehension is based on some kind
of conversation between the informant and another that the
accused persons shall be convicted. There is also an
assertion that the trial judge is a convicting Judge and that
is why, the High Court has observed that he is in dilemma.
7. So far as apprehension is concerned, it has to be one
which would establish that justice will not be done. In this
context, we may profitably refer to a passage from a
three-Judge Bench decision in Gurcharan Dass Chadha
v. State of Rajasthan1
, wherein it has been held:-
“… The law with regard to transfer of cases is
well-settled. A case is transferred if there is a
reasonable apprehension on the part of a party to
a case that justice will not be done. A petitioner is
not required to demonstrate that justice will
inevitably fail. He is entitled to a transfer if he
shows circumstances from which it can be
inferred that he entertains an apprehension and
that it is reasonable in the circumstances alleged.
It is one of the principles of the administration of
justice that justice should not only be done but it
should be seen to be done. However, a mere
allegation that there is apprehension that justice
will not be done in a given case does not suffice.
1
AIR 1966 SC 1418
7Page 8
The Court has further to see whether the
apprehension is reasonable or not. To judge of
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.”
8. This Court in Abdul Nazar Madani v. State of T.N.2
has ruled that:-
“…The apprehension of not getting a fair and
impartial inquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. If it appears that the
dispensation of criminal justice is not possible
impartially and objectively and without any bias,
before any court or even at any place, the
appropriate court may transfer the case to
another court where it feels that holding of fair
and proper trial is conducive. No universal or
hard-and-fast rules can be prescribed for
deciding a transfer petition which has always to
be decided on the basis of the facts of each case.
Convenience of the parties including the
witnesses to be produced at the trial is also a
relevant consideration for deciding the transfer
petition. The convenience of the parties does not
necessarily mean the convenience of the
petitioners alone who approached the court on
misconceived notions of apprehension.
Convenience for the purposes of transfer means
the convenience of the prosecution, other
accused, the witnesses and the larger interest of
the society.”
2
(2000) 6 SCC 204
8Page 9
9. In Captain Amarinder Singh v. Parkash Singh
Badal and others3
, while dealing with an application for
transfer petition preferred under Section 406 CrPC, a
three-Judge Bench has opined that for transfer of a criminal
case, there must be a reasonable apprehension on the part
of the party to a case that justice will not be done. It has
also been observed therein that mere an allegation that
there is an apprehension that justice will not be done in a
given case alone does not suffice. It is also required on the
part of the Court to see whether the apprehension alleged is
reasonable or not, for the apprehension must not only be
entertained but must appear to the Court to be a reasonable
apprehension. In the said context, the Court has held
thus:-
“19. Assurance of a fair trial is the first
imperative of the dispensation of justice. The
purpose of the criminal trial is to dispense fair
and impartial justice uninfluenced by extraneous
considerations. When it is shown that the public
confidence in the fairness of a trial would be
seriously undermined, the aggrieved party can
seek the transfer of a case within the State under
Section 407 and anywhere in the country under
Section 406 CrPC.
3
(2009) 6 SCC 260
9Page 10
20. However, the apprehension of not getting a
fair and impartial inquiry or trial is required to be
reasonable and not imaginary. Free and fair trial
is sine qua non of Article 21 of the Constitution.
If the criminal trial is not free and fair and if it is
biased, judicial fairness and the criminal justice
system would be at stake, shaking the confidence
of the public in the system. The apprehension
must appear to the court to be a reasonable one.”
10. In Lalu Prasad alias Lalu Prasad Yadav v. State of
Jharkhand4
, the Court, repelling the submission that
because some of the distantly related members were in the
midst of the Chief Minister, opined that from the said fact it
cannot be presumed that the Presiding Judge would
conclude against the appellant. From the said decision, we
think it appropriate to reproduce the following passage:-
“Independence of judiciary is the basic feature of
the Constitution. It demands that a Judge who
presides over the trial, the Public Prosecutor who
presents the case on behalf of the State and the
lawyer vis-à-vis amicus curiae who represents the
accused must work together in harmony in the
public interest of justice uninfluenced by the
personality of the accused or those managing the
affairs of the State. They must ensure that their
working does not lead to creation of conflict
between justice and jurisprudence. A person
whether he is a judicial officer or a Public
Prosecutor or a lawyer defending the accused
should always uphold the dignity of their high
office with a full sense of responsibility and see
that its value in no circumstance gets devalued.
4
(2013) 8 SCC 593
The public interest demands that the trial should
be conducted in a fair manner and the
administration of justice would be fair and
independent.”
11. The aforesaid passage, as we perceive, clearly lays
emphasis on sustenance of majesty of law by all concerned.
Seeking transfer at the drop of a hat is inconceivable. An
order of transfer is not to be passed as a matter of routine
or merely because an interested party has expressed some
apprehension about proper conduct of the trial. The power
has to be exercised cautiously and in exceptional situations,
where it becomes necessary to do so to provide credibility to
the trial. There has to be a real apprehension that there
would be miscarriage of justice. [See : Nahar Singh Yadav
and another v. Union of India and others5
].
12. In the instant case, we are disposed to think that
apprehension that has been stated is absolutely mercurial
and cannot remotely be stated to be reasonable. The
learned single Judge has taken an exception to the remarks
given by the learned trial judge and also opined about non-
5
(2011) 1 SCC 307
examination of any witness by him. As far as the first
aspect is concerned, no exception can be taken to it. The
learned Sessions Judge, while hearing the application for
transfer of the case, called for remarks of the learned trial
judge, and in such a situation, he is required to give a reply
and that he has done. He is not expected to accept the
allegations made as regards his conduct and more so while
nothing has been brought on record to substantiate the
same. The High Court could not have deduced that he
should have declined to conduct the trial. This kind of
observation is absolute impermissible in law, for there is no
acceptable reason on the part of the learned trial judge to
show his disinclination. Solely because an accused has filed
an application for transfer, he is not required to express his
disinclination. He is required under law to do his duty. He
has to perform his duty and not to succumb to the pressure
put by the accused by making callous allegations. He is not
expected to show unnecessary sensitivity to such allegations
and recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in the
adjudicatory process. The unscrupulous litigants will
indulge themselves in court haunting. If they are allowed
such room, they do not have to face the trial before a court
in which they do not feel comfortable. The High Court has
gravely erred in this regard. So far as the non-examination
of the witnesses is concerned, as the factual score would
uncurtain, the matter had travelled to the High Court in
revision assailing the order passed under Section 319 CrPC.
Be that as it may, the High Court has not adverted to the
issue who was seeking adjournment and what was the role
of the learned trial judge. Grant of adjournment could have
been dealt with by the High Court in a different manner. It
has to be borne in mind that a judge who discharges his
duty is bound to commit errors. The same have to be
rectified. The accused has never moved the superior court
seeking its intervention for speedy trial. The High Court has
innovated a new kind of approach to transfer the case. The
High Court should have kept in view the principles stated in
K.P. Tiwari v. State of M.P.6
which are to the following
effect:-
6
1994 Supp. (1) SCC 540
1Page 14
“… It has also to be remembered that the lower
judicial officers mostly work under a charged
atmosphere and are constantly under a
psychological pressure with all the contestants
and their lawyers almost breathing down their
necks—more correctly up to their nostrils. They
do not have the benefit of a detached atmosphere
of the higher courts to think coolly and decide
patiently. Every error, however gross it may look,
should not, therefore, be attributed to improper
motive.”
13. Thus analysed, we are unable to sustain the order of
transfer passed by the High Court. Consequently, the
appeals are allowed in part. The finding recorded as regards
the jurisdiction of the learned Sessions Judge is sustained,
and as far as the direction to the Principal Sessions Judge
to transfer the case from the 3rd Additional Sessions Judge
to some other court being vulnerable and wholly
unsustainable is set aside. The learned trial judge shall
proceed with the trial and dispose of the same within six
months.
.................................J.
[Dipak Misra]
.................................J.
[Prafulla C. Pant]
NEW DELHI
JANUARY 8, 2016
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