Amarinder Singh vs Parkash Singh Badal & Ors

transfer of the case titled as "State of Punjab vs. Prakash Singh

Badal and Ors." relating to FIR No. 15 dated 24.06.2003 filed

under Sections 420, 467, 468, 471 and 120-B of the Indian

Penal Code, 1860 read with Sections 7,8,9,10, 13 (1) and (2) of

the Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Ropar to any other suitable Court of competent

jurisdiction in New Delhi.

2. Capt. Amarinder Singh is the petitioner in Transfer

Petition No. 235 of 2008. M/s Jeet Mohinder Singh, Sukhpal

Singh, Gurpreet Singh and Mangat Ram Bansal who are all

members of Legislative Assembly are the petitioners in

Transfer Petition No. 179 of 2008. Respondent Nos. 1 to 10

are the accused in the case relating to FIR No. 15 and 11th

Respondent is the State of Punjab. Since, facts are common in

both the transfer petitions, we propose to dispose of the same

by this common judgment. For convenience, reference to

parties will be as arrayed in Transfer Petition No. 235 of 2008.

3. Brief facts, as stated in the Transfer Petition No. 235 of

2008, are as follows:-

a) FIR No. 15 dated 24.06.2003 filed under Sections 420,

467, 468, 471 and 120-B of Indian Penal Code, 1860

read with Sections 7, 8, 9, 10, 13(1) and (2) of the

Prevention of Corruption Act, 1988 was registered at the

Police Station Vigilance Bureau, Flying Squad, Mohali on

the complaint of one Mr. Balwant Singh son of Mr.

2 Sukhdev Singh. This FIR was filed for offences

committed by Mr. Prakash Singh Badal (Accused No.1),

Mr. Sukhbir Singh Badal (Accused No.2) and other family

members for alleged acts of corruption committed during

the previous tenure of Accused No.1 as Chief Minister of

the State of Punjab for the period 1997-2002, for

collecting black money, owning/possessing Nammi &

Benami movable and immovable properties both in India

and abroad. Summons were issued by the Special

Judge, Ropar, Punjab on 01.12.2003.

b) Against the summons, Mr. Prakash Singh Badal and Mr.

Sukhbir Singh Badal filed a Special Leave Petition being

SLP (Crl.) No. 5252 of 2003. Along with these

proceedings, they also filed a Transfer Petition before this

Court being T.P. (Crl.) No. 307 of 2003 challenging, inter

alia, the jurisdiction of the Special Judge, Ropar. When

both the petitions came up for hearing before this Court

on 12.12.2003, the Special Leave Petition as well as the

Transfer Petition were withdrawn by the Accused-

Petitioners. The above-said Transfer Petition was

3 withdrawn with liberty to file any other Transfer Petition

in future and the same will be considered on its own

merits as pleaded in that petition.

c) Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal

having withdrawn the above Special Leave Petition and

Transfer Petition, moved an application on 16.01.2004

before the Special Judge, Ropar raising question relating

to the competence and jurisdiction of the Special Court.

It was submitted that the Special Court had no

jurisdiction in the matter of FIR No. 15 of 24.06.2003

and that it could neither proceed nor adjudicate upon the

said matter. By order dated 29.05.2004, the learned

Special Judge, dismissed the said application holding

that it had the requisite jurisdiction in the matter.

Aggrieved by that order, on 30.06.2004, the accused filed

CWP No. 9410 of 2004 before the High Court of Punjab

and Haryana at Chandigarh.

d) The High Court heard the said Writ Petition and after

considering all the legal issues raised by the accused,

rejected the same by a detailed judgment dated

4 02.09.2004 directing the Special Judge to conclude the

trial as expeditiously as possible and in any case not

later than a year from the pronouncement of the said

judgment. Being aggrieved by this judgment, the accused

filed Special Leave Petition being SLP (Civil) No. 19640 of

2004 before this Court.

e) By this time, on the issue of law relating to sanction for

prosecution in such cases, several Special Leave Petitions

were filed before this Court by various Politicians across

the country in separate matters relating to the

jurisdiction of Special Courts dealing with such

allegations of corruption, the cognizance and trial of such

offences relating to corruption and other issues as to the

requirement of sanction for prosecution. The entire

batch of matters and all issues on law were decided by

this Court by a detailed judgment dated 06.12.2006 in

the matter of Prakash Singh Badal and Ors vs. State

of Punjab and Ors., (2007) 1 SCC 1 and the said

special leave petitions filed by the accused came to be

dismissed by this Court. As a natural outcome of this

5 dismissal, the trial before the Special Court, which had

been suspended all this while was to proceed.

f) Elections were to take place in the month of February,

2007 in the State of Punjab. Hence, the Accused (who

were also contesting election) sought time before the

learned Special Judge and requested that the trial be

taken up after the election is over and the result is

announced. Thereafter, Accused No.1 assumed power

and position as the Chief Minister of Punjab the entire

criminal trial took a completely different turn.

g) On 15.02.2007, an application was moved by one of the

Accused regarding crucial witnesses and on 21.02.2007

another application was filed by the accused for

discontinuation/termination of further proceedings.

Although both these applications would have serious

ramifications on the case of the prosecution and the

continuation of the trial, neither a cursory reply was filed

by the public prosecutor to the above applications nor

were they objected to. Thus at this primary stage itself it

can be seen that the powerful position of Accused No.1

6 occupying the highest political chair in the State as Chief

Minister of Punjab was being brought down in full

measure on the prosecution.

h) The allegations against the accused were primarily that of

corruption and of amassing assets which were

disproportionate to their income. To support this case,

one of the primary documents being relied on by the

prosecution was a report prepared by the Income-Tax

Department as regards the income/assets and other

financial details of the accused. Despite this document

being absolutely necessary to prove the case of the

prosecution, on 23.02.2007 the Investigating Officer, Mr.

Surinder Pal Singh, filed an affidavit before the Special

Court/trial Court stating that the report prepared by the

Income-Tax Department ought not to be considered by

the Special Court at the stage of framing of charge. The

Investigating Officer, clearly to favour the accused,

virtually throttled the case of the prosecution with his

own hands by conceding before the Special Court/Trial

7 Court that this crucial piece of evidence in the form of the

Income-Tax report ought not to be considered.

i) The prosecution and the free and fair trial of the matter

was already being further compromised, is evident from

the fact that while the public prosecutor continued to fail

to tender a reply to the above crucial applications filed by

the Accused. The accused themselves had stopped

bothering to even appear before the Special Court. By

this time, Accused No.1 Mr. Prakash Singh Badal had

formally occupied the chair of Chief Minister of Punjab

and was also holding the Portfolio of the Department of

Home.

j) When the matter came up for hearing on 01.03.2007 and

the Special Public Prosecutor Mr. Amar Preet Singh Deol

had closed his arguments, an application was moved by

the Public Prosecutor Mr. Pardeep Mehta under Section

173 (8) of the Code of Criminal Procedure, 1973 seeking

permission to conduct "further investigation". While

strangely such an application was made after the Special

Public Prosecutor had concluded his arguments, it was

8 further made evident that the Prosecution was under the

pressure of, inter alia, Accused No.1 who was now the

Chief Minister of Punjab to seek a medium through

which the case of the prosecution against the Accused

could be weakened. This would naturally be under the

garb of such "further investigation" which had now

become "necessary".

k) Again when the matter came up for hearing on

06.03.2007, neither of the accused was present in the

Court in spite of the express directions of the Special

Court. As far as the applications were concerned, a

vague and perfunctory reply was filed by Mr. Pardeep

Mehta, the Public Prosecutor, which in fact did not even

deal with the contentions set out in the said application.

There was not even a word of objection or opposition to

the said application. As a matter of fact, the reply filed

by the prosecution requested the Court to adjourn these

applications and keep them sine die.

l) The public prosecutor Mr. Pardeep Mehta, who had been

protecting the interest of the Accused was now made "in

9 charge" of the case, obviously by the Government headed

by Accused No.1. Further it may be important to note

that by now, Accused No.1 was now in charge of Home

Department and more particularly, the Vigilance

Department.

m) When the matter once again came up for hearing on

07.03.2007, the Court was constrained to note that no

proper/final reply had been filed by the Prosecution with

regard to the applications filed by accused inter alia for

discontinuation/termination.

n) Despite a complete lack of assistance and interest on the

part of the prosecution, the Special Judge, Ropar framed

charges against the Accused including Mr. Prakash

Singh Badal (Chief Minister of Punjab), Mr. Shukhbir

Singh Badal (Son of the Chief Minister) and other

members of the family and known associates under

Sections 13 (1)(a), 13(2), 13(1)(e), 8,9 and 14 of the

Prevention of Corruption Act, 1988 read with Section

120-B of the Indian Penal Code, 1860. On 09.03.2007,

the Special Judge dismissed the application filed by the

10 Public Prosecutor Mr. Pardeep Mehta for permission to

conduct "further investigation" under the provisions of

Section 173 (8) of the Cr.P.C. along with various other

applications filed by the Accused with regard to directing

the prosecution to clear their stand on the statements of

the witnesses and application for termination of further

proceedings and the challan in view of the alleged

infirmity in the proposed charges to be framed against

the accused.

o) Despite all the damage that could have done through the

prosecution after the framing of the charge, the

Government of Punjab, Department of Home Affairs and

Justices issued Notification No.21/17/2000-3/JUDL

(1)/1418 dated 10.05.2007/11.05.2007 canceling the

appointments of all existing special public prosecutors in

the case. Ironically the said Notification was said to be

passed with immediate effect in public interest. Thus

Accused No.1 who was holding charge of the Home

Ministry portfolio was in a position to actually decide as

to who should be his prosecutor.

11

p) All the eleven officials who appeared as witnesses despite

admitting to their respective signatures on their

statements under Section 161 of the Criminal Procedure

Code, 1973 resiled from the contents thereof. It may be

seen that if, fear of or a sense of favour towards the

Accused had driven the above witnesses who are officials

of Departments such as the Vigilance Bureau, Irrigation

and PWD Department to resile from their sworn

statements, there could be no hope of truth or assurance

of safety for the witnesses in the case.

q) When the prosecution further continued on 20.08.2007,

three more prosecution witnesses were examined and

they all resiled from the statements made before them.

r) The conduct of the Prosecution and the manner in which

the Accused has struck at the heart of it and made it

defenceless can be seen from the fact that in the course

of such trial, it is common practice for the prosecution to

require examination of the investigating officer at the end

of evidence so that such investigating officer may prove

the statement of the other witnesses even if they were to

12 have resiled from the same in the course of examination.

However, in the present case, despite the fact that some

prosecution witnesses had already started resiling from

their statements, the prosecution deliberately made an

application for examining the investigating officer Mr.

Surinder Pal Singh, prematurely and at the beginning of

such proceedings. If such Investigating Officer was to be

examined at this early stage, then there would be nobody

left to prove the statements of prosecution witnesses who

were resiling. However, this application was dismissed

by the Special Court/Trial Court vide order dated

20.08.2007.

s) The manner in which the public prosecutor Mr. Pardeep

Mehta was covering up for the accused and helping them

is made further clear when the State of Punjab actually

appealed the above order of the Special Court/Trial Court

dated 20.08.2007 dismissing the above application which

was so done by challenging the order before the High

Court of Punjab and Haryana at Chandigarh vide

Criminal Misc. No.45232-M of 2007 under the provisions

13 of Section 482 of Code of Criminal Procedure praying that

the application moved by the prosecution to examine the

investigating officer before proceeding further be allowed.

By order dated 14.11.2007, the High Court directed the

Special Court to consider afresh any such application

that may be filed by the public prosecutor in the near

future.

t) The complete and deliberate breakdown of the

prosecution case became further clear when on

17.01.2008 the Complainant Mr. Balwant Singh too

resiled from his affidavit by stating that he had no

knowledge of the contents of the Complaint which had

led to registration of the said FIR No.15 dated 26.04.2006

and despite acknowledging his signatures on each and

every document of the complaint and the accompanying

affidavit, stated that he had in fact signed these papers

for the purchase of a vehicle.

u) Finally on 04.02.2008, the prosecution finally succeeded

in persuading the trial Court to examine the Investigating

Officer Mr. Surinder Pal Singh. The Investigating Officer

14 Mr. Surinder Pal Singh in his examination-in-chief has

virtually resiled from every aspect of the investigation;

stated that he did not record the witness statements in

question and wherever his signatures appear on the

record of the case was because "he signed where he was

told to".

v) This trial is now a sham and a farce designed to meet the

ends of the accused who are in complete control of every

aspect of it.

4. As against the above allegations, the respondents have

filed response among which let us refer the stand taken by the

first respondent, namely, Mr. Prakash Singh Badal:

a) The transfer petition is grossly belated. No explanation

has been offered as to why the petitioner has chosen to

wait until the entire prosecution evidence which

commenced from 18.07.2007 stood concluded in March,

2008. The case is now at the stage of consideration of

recording statements under Section 313 of Criminal

Procedure Code. The petition is clearly politically

15 motivated and an attempt to scuttle the trial which is at

its fag end.

b) A close relation of Capt. Amarinder Singh, namely, Mr.

Simranjit Singh Mann, had filed a transfer petition in the

High Court being CWP No. 11399/2007 for transfer of

the case from Ropar to any other Court outside the State

of Punjab on the basis of similar contentions, regarding

the alleged impossibility of a free and fair trial in the

State of Punjab. The said transfer petition was dismissed

by the High Court, vide judgment and final order dated

25.09.2007, observing that there is no basis for the

apprehension expressed by the writ petitioner. This

judgment and final order of the High Court was never

challenged.

c) All the alleged witnesses in the case were put up by the

present petitioner, as the then Chief Minister of the State,

in order to politically discredit the 1st respondent and to

create a defence for himself in respect of both civil and

criminal proceedings for defamation instituted by the 1st

respondent against the petitioner herein. Viewed in this

16 context, the deposition of the prosecution witnesses

before the Trial Court is clearly truthful, as they have

categorically exposed the manner in which they were

cited as false witnesses and subjected to threat and

coercion at the instance of the petitioner herein.

d) Various events set out in para 7 of the affidavit establish

that the entire prosecution is vitiated by mala fide. It is

borne out from the record that the petitioner, after

assuming the office of Chief Minister in February 2002,

had embarked upon a witch hunt against the 1st

respondent and his family members. To this end, he

retained to himself the portfolios of Home and Vigilance.

Various officials either working in the Vigilance Bureau

or in various other Government Departments were

pressurized and cited in the list of witnesses, and a

wholly baseless challan was presented.

e) In para 12, details were furnished about the number of

prosecution witnesses, their status and their statements.

In para 13, details have been furnished about various

documents placed before the trial Court. The above-

17 mentioned details reveal the mala fides behind the trial of

the 1st respondent and other accused. The petitioner has

filed the present petition to somehow scuttle the trial.

f) The statement of official witnesses under Section 161

Cr.P.C. are never signed by the witnesses and had

categorically stated that on 1st, 2nd and 03rd November,

2003 they did not go to any place for making any

assessment. They had gone only in July, 2003 and

submitted their reports. These reports, which would

have established the correct value of the property of the

1st respondent did not find approval with the Vigilance

Bureau and the same have been concealed.

g) As regards the allegation of non-appearance of the

accused in the Court, Smt. Surinder Kaur Badal, wife of

Mr. Prakash Singh Badal was granted permanent

exemption from personal appearance by the trial Court,

way back on 21.02.2004 when the petitioner Mr.

Amarinder Singh himself was heading the Government.

The first respondent had appeared on several dates

including 13.03.2007 and 04.07.2007 when charge sheet

18 and amended charge sheet was served upon him.

Thereafter, he had been seeking exemption from personal

appearance by making appropriate application. He had

been granted exemption on specific dates of hearing by

the trial Court after due application of mind. Mr.

Sukhbir Singh Badal appeared on most of the dates of

hearing in the trial Court barring a few where he was

granted exemption from personal appearance by the trial

Court.

h) Regarding the allegation of manhandling Mr. Amar Preet

Singh Deol, the 1st respondent has specifically denied the

same and neither Mr. Amar Preet Singh Deol nor any

other person ever raised any issue before the trial court.

Even in the transfer petition filed by Mr. Simranjit Singh

Mann before the High Court, no such averment was ever

made regarding the alleged manhandling of Mr. Amar

Preet Singh Deol on 28.02.2007. Likewise, the 1st

respondent has denied the allegation that supporters and

party workers indulged in slogan shouting leading to a

terror filled atmosphere in which no free and fair trial can

19 ever proceed or conclude. It is pointed out that no

complaint has been made to the Presiding Judge nor

there has been any report in the Press about the same.

i) The entire matter is now under the judicial scrutiny

before the trial Court. There is no allegation in the

petition against the conduct of the proceedings in the

Court or against the Presiding Officer.

5) In the light of the above pleadings, we have heard Mr.

Altaf Ahmed and Mr. P.S. Narasimha, learned senior counsel

for the petitioners and Mr. Harish N. Salve, Mr. Ashok Desai,

Dr. Rajiv Dhavan, Mr. Ravi Shanker Prasad and Mr. C.S.

Vaidyanathan, learned senior counsel for the respondents.

6) After taking us through the entire materials including the

complaint, statement of witnesses, proceedings, various orders

of the Court and steps taken and the alleged failure or lapse

by the special Public Prosecutor, Mr. Altaf Ahmed and Mr. P.S.

Narasimha, learned senior counsel appearing for the

petitioners mainly submitted that in view of the fact that the

first accused being the Chief Minister and his son being a

Deputy Chief Minister, others are being either family members

20 of the Chief Minister or his close associates, there cannot be

any fair trial. They also contended that in view of the attitude

of the Government terminating all the special counsel/special

public prosecutors except one Mr. Pardeep Mehta, it is

undesirable to continue the prosecution in any place in the

State of Punjab. They finally contended that the conduct of

the Investigating Officer, namely, Mr. Surinder Pal Singh in

disowning his statement and conceding that he put his

signature under pressure clearly shows that there cannot be a

fair trial and nobody is interested to proceed with the

prosecution case. On the other hand, learned senior counsel

appearing for the respondents/accused disputed all the

allegations/apprehensions raised by the petitioners in

conducting fair trial. After taking us through the statement of

the witnesses examined so far and documents placed, it is

stated that it cannot be construed that there was any inaction

on the part of the prosecution or public prosecutor. According

to them, there is no basis for such apprehension and

witnesses have clarified their statements and asserted that

their statements before the Court are true. They also

21 highlighted their position at the relevant time and confirmed

that they had nothing to do with the allegations made against

them. It is further pointed out that those witnesses clarified

that they were not under pressure. It is also pointed out that

inasmuch as most of the witnesses so far examined resiled one

after another and only in this context, public prosecutor

informed the Court that there is no purpose in continuing the

prosecution.

7) The above transfer petitions have been filed under

Section 406 of the Code of Criminal Procedure, 1973 which is

reproduced below for ready reference:

"406. Power of Supreme Court to transfer cases and appeals.- (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.

22 (3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case."

Sub-section (1) makes it clear that for the ends of justice it

would be open to 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.

8) Before considering the rival claim of both parties, it is

useful to refer some of the decisions of this Court relating to

transfer of a criminal case from one State to another.

9) In K. Anbazhagan vs. Superintendent of Police &

Ors. (2004) 3 SCC 767, this Court had an occasion to

consider the transfer of a criminal trial from the State of Tamil

Nadu to another State, a two Judge Bench, after going into the

factual details, particularly, the change of Government,

attitude of the public prosecutor and finding that there is

23 justifiable and reasonable apprehension of miscarriage of

justice as well as likelihood of bias, allowed the Transfer

petition pending on the file of XIth Additional Sessions Judge

(Special Court No. 1) Chennai, State of Tamil Nadu to the

State of Karnataka. While directing the transfer this Court

permitted the State of Karnataka in consultation with the

Chief Justice of the High Court of Karnataka to appoint a

senior lawyer having experience in criminal trials as Public

Prosecutor to conduct those cases. In the same order, the

Court observed that the public prosecutor will be at liberty to

apply that the witnesses who have been recalled and cross-

examined by the accused, who have resiled from the previous

statement, may be again recalled. The Court further observed

that the public prosecutor would be at liberty to apply to the

Court to have these witnesses declared hostile and seek

permission to cross-examine them.

10) In Abdul Nazar Madani vs. State of Tamil Nadu and

Anr. (2000) 6 SCC 204, the issue dealt with was for transfer

of criminal case from one State to another. In the said

decision it was reiterated that the purpose of the criminal trial

24 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 case within the

State under Section 407 and anywhere in the country under

Section 406 Cr.P.C. The apprehension of not getting a fair and

impartial inquiry or trial is required to be reasonable and not

imaginary based upon conjectures and surmises. If it appears

that the dispensation of criminal justice is not possible

impartially and objectively and without any bias, before any

court or even at any place, the appropriate court may transfer

the case to another court where it feels that holding of fair and

proper trial is conducive. However, 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. After perusing the figures

furnished and considering all the materials, it was concluded

that the transfer petitions were totally misconceived and

25 dismissed the same.

11) In Sri Jayendra Saraswathy Swamigal (II) T.N. vs.

State of T.N. & Ors. (2005) 8 SCC 771, this Court has held

that if there is reasonable apprehension on the part of a party

to a case that justice may not be done, he may seek transfer of

the case. It also held that the apprehension and parties must

be a reasonable one and the case cannot be transferred on a

mere allegation that there is apprehension that justice will not

be done.

12) It is a well-established proposition of law that a criminal

prosecution, if otherwise, justifiable and based upon adequate

evidence does not become vitiated on account of mala fides or

political mandate of the informant or the complainant.

However, if justifiable and reasonable apprehension of

miscarriage of justice and likelihood of bias is established,

undoubtedly, the proceeding has to be transferred elsewhere

by exercise of power under Section 406 Cr.P.C. For a 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 is one of the principles of administration of justice that

26 justice should not only be done but it should be seen to be

done. On the other hand, mere allegations that there is

apprehension that justice will not be done in a given case does

not suffice. In other words, the court has further to see

whether apprehension alleged is reasonable or not. The

apprehension must not only be entertained but must appear

to the court to be a reasonable apprehension.

13) 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 Cr.P.C. 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

27 in the system. The apprehension must appear to the Court to

be a reasonable one.

14) In the light of the above principles, let us analyse the

claim of both parties and find out whether the criminal trial is

to be transferred to other State. It was pointed out that with

respect to offences committed during the period between

1997-2002, the time when the first Respondent was the Chief

Minister, an FIR was launched on 24.06.2003 and chargesheet

was filed on 22.11.2003, citing 138 witnesses to be examined.

A supplementary chargesheet was filed on 04.01.2004 citing

more witnesses. The first Respondent came back to power as

the Chief Minister in February, 2007. Out of 138 witnesses

only 59 were examined, out of which 35 turned hostile. Mr.

Altaf Ahmad, learned senior counsel for the petitioner pointed

out that the aspect of selective calling up of witnesses,

dropping crucial witnesses, most of the witnesses turning

hostile one after another, non-examination of witnesses

connected with the transaction and not citing certain

witnesses hostile or cross examining them when they resile

from the earlier statements, has virtually rendered the trial

28 farcical. Though, in a transfer petition we are not expected to

go into the veracity of the statement of the witnesses and their

evidential value, since both side cited several instances, we

may refer the same without expressing specific opinion on

them. According to the counsel for the petitioners insofar as

valuation of the properties of the accused, though, one Mr.

Bharat Shah, Challan Witness No. 114 who had visited the

properties of the Accused for the purpose of valuation and

assessment of the assets of the accused and had recorded a

statement under Section 161, was dropped by the prosecution.

On the request of the police that they would not help the case

of the prosecution it was pointed out that on the same

reasoning Mr. Surinderpal Mitra, Challan Witness No. 116 and

Mr. S.K. Srivastava were dropped by the prosecution.

Likewise, it was pointed out that Mr. Sukhdip Singh Dhindsa,

Mr. S.K. Jain, Mr. A.K. Goel, Mr. Gurpratap Singh, Mr.

Sawtantar Singh, and Mr. Vinarjit Singh were not examined.

In the same manner, in respect of allegation relating to

Benami transaction some of the prosecution witnesses were

either dropped or declared as hostile. It was contended that

29 same was the position in respect of charge relating to bribery,

flow of illegal wealth and black money of the accused persons.

15) Though, Mr. Altaf Ahmad and Mr. P.S. Narasimha took

us through their evidence let in before the Special Court and

their statement recorded earlier under Section 161 Cr.P.C.

Mr. Harish Salve, senior counsel appearing for one of the

Respondents by taking us through the same materials

demonstrated that there is no basis for the apprehension

expressed by the petitioners. It was pointed out that initially

Capt. Amrinder Singh was also a member of the same party

along with Respondent No. 1 who subsequently left the

Shiromani Akali Dal on being denied to contest the Assembly

Election in 1997. Since then, the petitioner held Mr. Prakash

Singh Badal who was the president of the Shiromani Akali Dal

at that time, to be responsible for his fate. The petitioner had

subsequently joined the Congress. It was further pointed out

that in September, 2001 in the Assembly elections in Punjab,

the petitioner wrote a letter to Mr. Badal alleging that the

latter had amassed properties in India and Abroad which were

disproportionate to his known sources of income. The said

30 letter was published in the Press and wide publicity was given

for the purpose of electoral gain in February, 2002. A criminal

complaint for defamation was filed by Mr. Badal's son Mr.

Sukhbir Singh Badal, 2nd Respondent herein against the

petitioner. It was pointed out that in the same month i.e. in

2002, the Congress party came to power in Punjab and the

petitioner was appointed as the Chief Minister and retained

with himself the portfolio of Home and Vigilance. It was

further pointed out that on account of the persistence of the

petitioner with his defamatory allegations, the respondent

herein also filed a criminal complaint for defamation against

the petitioner. In both the said criminal complaints, the

petitioner had been the same and served with notice of

accusation by the Trial court to face the trial. It is claimed

that FIR dated 24.06.2003 is almost a verbatim copy of the

letter dated 04.09.2001 written by the petitioner. In the

counter affidavit filed before us the first respondent has

highlighted various other proceedings between the

respondents and the petitioner. In the same counter affidavit

the evidence given by prosecution witnesses were catalogued

31 and asserted that those witnesses have not supported the case

of the prosecution and also emphasized the manner in which

the prosecution set up the false witnesses, pressurized and

threatened them. It is the claim of the learned senior counsel

appearing for the petitioners that contrary to all known

practice of a conduct of a trial in which the prosecution

examines the Investigating Officer at the end of the

prosecution evidence so that the statements of hostile

witnesses may be proved, in the cases on hand the public

prosecutor, Mr. Pardeep Mehta prematurely filed an

application for examining the Investigating Officer,

Mr. Surinder Pal Singh. By pointing out the same, learned

senior counsel for the petitioners contended that prosecution

was so keen that the Investigating Officer be examined out of

turn. It is seen that the said application filed by the public

prosecutor was dismissed by the trial Court by order dated

20.08.2007. The special Court after finding that in case other

witnesses turned hostile then Investigating Officer is to prove

their statement, therefore, it will be appropriate if the

Investigating Officer is examined after examination of the

32 remaining material witnesses. By saying so, the special Court

disposed of the application filed by the public prosecutor.

Against the said order, the State of Punjab appealed before the

High Court of Punjab & Haryana in Crl. Misc. Application No.

45232-M/07. The materials placed show that in the

meantime before the Special Court three more witnesses were

examined and they also turned hostile. They are: 1. PW 34:

Mr. Rajinder Singh Garewal, Deputy Director, Horticulture 2.

PW 35: Mr. Rajinder Singh, Sub Divisional Engineer,

Irrigation, Bhatinda and 3. PW 36: Mr. Vijay Kumar, Junior

Engineer, Drainage. Ultimately, the High Court disposed of

Crl. Misc. Application and passed an order to the effect that in

the light of any changed circumstances and/or subsequent

events, the public prosecutor deems it appropriate to seek

permission of the learned Special Judge to examine the

Investigating Officer before the remaining witnesses are

examined, he may move another application to this effect and

if such an application is moved, the learned Special Judge was

directed to consider and dispose of the same in accordance

with law by ignoring the previous order dated 20.08.2007.

33 Even thereafter, three more witnesses were examined on

26.11.2007 & 27.11.2007 and they too turned hostile. They

are - 1. PW 43: Mr. Amandeep Singh Brar, Executive

Engineer, PWD 2. PW 44: Mr. Sukdhip Singh Dhindsa,

Executive Engineer, PWD and 3. PW 46: Mr. Surender Singh,

Cable Operator. It is further seen that on 04.01.2008 two

more witnesses were examined who also turned hostile. They

are - 1. PW 50: Mr. Jit Singh, Agriculturist and 2. PW 52: Mr.

Gurinder Pal Singh, Inspector General of Police, Railways. It

was highlighted that those witnesses i.e. PWs 9 to 14, 35 & 36

had not even seen Balasar Farm House, where their services

were alleged to have been utilized. Likewise, the other

witnesses PWs 1 to 7, 15, 23, 24, 27, 28, 43, 44 and 53 have

denied their role in assessing the properties on 1st , 2nd and 3rd

November, 2003 i.e. the date of the assessment alleged by the

prosecution. Those witnesses filed separate affidavit in the

High court stating that on 1st, , 2nd , 3rd November 2003, when

the alleged assessment said to be taken place, they were doing

their official work at their respective offices. These witnesses

admitted the fact that they assessed those properties in July,

34 2003, but their report did not find approval of the Vigilance

Bureau.

16) Though, it was highlighted that the first respondent is a

Chief Minister and all other accused are his relatives and

friends, the information furnished show that except one or two

others are businessmen, agriculturists, employed as Special

Inspector in U.T. Chandigarh, and one as Hindi teacher. In

that event, if transfer is ordered outside the State of Punjab, it

would be difficult for the other accused to attend the Court

proceedings on several occasions. The same hurdle is there

for other witnesses both on the prosecution as well as defence.

17) It is relevant to point out that the complainant himself,

namely, Mr. Balwant Singh who was examined as PW 56

resiled stating that the affidavit supporting his private

complaint was not filed by him. He asserted that he had

signed these papers for purchase of a vehicle. On the same

day 17.01.2008/18.01.2008 when the complainant resiled,

PW 53: Mr. Amarjit Singh, SP Vigilance Bureau and PW 55:

Mr. Jagdish Singh Khaloan, SP, Ferozepur who were examined

on the same date also turned hostile. On the next hearing

35 date i.e. 05.02.2008 when the prosecution examined the

Investigating Officer, in his examination in chief, he resiled

from every aspect of the investigation stating that he did not

record the witness statements, he signed when he was told to

and even the charge sheet was prepared on the computer of a

Senior Officer and merely signed by him. In those

circumstances, in view of the fact that many of the officers

asserted before the Special Court that neither they were not in

the respective position as claimed by the prosecution nor they

made a statement as recorded under Section 161 which

necessitated the public prosecutor closing the prosecution

case by giving up remaining PWs as unnecessary.

18) Coming to the allegation relating to removal of Special

public prosecutors/special counsel and the conduct of the

present Public Prosecutor Mr. Pardeep Mehta, on behalf of the

State of Punjab, Chief Secretary has filed a counter affidavit

dated 29.04.2008 explaining the correct position. It is stated

that the political system prevailing in India is such that

whenever Government changes or new political party forms

the Government, all the officers including the Advocate

36 General and the Law Officers tender their resignation and new

ones, in whom the Government of the day has confidence are

appointed by the new Government/Political Parties. The same

was also done by the government headed by the petitioner

herein which came in power in the year 2002. Relating to the

allegations that have been made against the Public Prosecutor

Mr. Pardeep Mehta, the Chief Secretary has explained that Mr.

Pardeep Mehta had been posted as Deputy District Attorney in

the Vigilance Bureau, Punjab on 26.09.2002. He was

promoted as District Attorney by Order dated 29.05.2006.

Pursuant to his promotion as District Attorney vide order

31.05.2006 passed by the Principal Secretary, Department of

Home Affairs and Justice, State of Punjab, he was appointed

as District Attorney, Ropar. Soon after his appointment as

Deputy District Attorney, Vigilance Bureau, Punjab, Mr.

Pardeep Mehta had been conducting the prosecution of almost

all the cases registered under the Prevention of Corruption Act

at Mohali. He had also been assisting various special public

prosecutors in the conduct of the trial of the present case, as

well as the proceedings before the High Court and in this

37 Court. He relied on the order sheet of the Trial Court with

effect from 19.12.2006 which, according to him, reveal that

Mr. Pardeep Mehta appeared on behalf of the prosecution on

each and every date of hearing.

19) With regard to allegation regarding appointment and

removal of other public prosecutors/special counsel, the Chief

Secretary has explained that on 28.11.2003 by separate

Notification Mr. Amar Pal Singh Randhawa, Advocate, Mr.

H.S. Sandhu, Senior Advocate and Mr. Sukhdev Singh Tiwana,

Advocate were appointed as Special Public Prosecutor in the

present case. On the same day i.e. 28.11.2003, Mr. Pardeep

Singh, Advocate, Mr. Shiv Dutt Sharma, Advocate and Mr.

Amar Ashok Pathak, District Attorney/PP were appointed to

assist the prosecution. Mr. U.U. Lalit, Advocate, (now Senior

Advocate) on 24.04.2004, Mr. Rajiv Dutta, Senior Advocate, on

17.09.2004, Mr. Amar Preet Singh Deol, Advocate, on

22.12.2006 and Mr. R.S. Cheema, Senior Advocate (the then

Advocate General, Punjab) on 18.01.2007 were appointed as

special public prosecutors respectively. It was further

explained that the order sheet of the Trial Court from time to

38 time shows that Mr. Amar Pal Singh Randhawa, Advocate had

never conducted the proceedings before the Trial Court. Mr.

Rajiv Dutta, Senior Advocate appeared on 18.09.2004 i.e. on

one occasion only. Mr. U.U. Lalit, Senior Advocate, had

appeared on 24.04.2004, 29.04.2004, 04.05.2004,

15.05.2004, 28.09.2004 and 30.09.2004, and not thereafter.

20) As regards the allegation that Mr. Amar Preet Singh Deol,

Special Public Prosecutor, was manhandled on 28.02.2007,

Chief Secretary has stated that no complaint was filed by him

in respect of any such alleged incident. On the other hand, it

was pointed out that Mr. Amar Preet Singh Deol had himself

written a letter on 12.03.2007 to the Secretary (Home),

Punjab, Chandigarh, requesting, inter alia, for clearance of his

fee bills, and even in this letter there was no mention of any

such incident. It was further stated that Mr. H.S. Mattewal

was appointed as Advocate General for the State of Punjab on

02.03.2007 and he assumed his office on the said date.

21) As rightly highlighted by the learned senior counsel for

the State of Punjab that there is no reason to disregard the

above information furnished by the Chief Secretary of the

39 State of Punjab. In those circumstances, the allegation

relating to removal of Special Public Prosecutors and about

Mr. Pardeep Mehta cannot be sustained. It is also relevant to

point out that before the Court of Special Judge, Ropar, the

present Public Prosecutor Mr. Pardeep Mehta made a

statement on behalf of the State that on the basis of the police

records he had given up prosecution witnesses Mr. Kuldeep

Singh, Mr. Bharat Shah, Mr. Amolak Singh and Mr. Surender

Pal Mitra as they will not support the case of the prosecution

and also stated that he wanted to examine only the witness

Jatinder Singh, Sr. No. 5 in the supplementary challan, Mr. C.

Paramjit Singh, Sr. No. 5, main challan, Mr. Surinder Pal

Singh, Sr. No. 137, in the main challan, Mr. Amarjit Singh SP,

Sr. No. 99, main challan, Mr. J.S. Kahlon, Sr. No. 34 of main

challan, Mr. S. Chatopadhya, Sr. No. 135, main challan and

Mr. B.K. Uppal, Sr. No. 136 of main challan. We also verified

the statement of the 59 witnesses of which 35 declared as

hostile by Public Prosecutor. The perusal leads to a

conclusion that the presiding Judge has made an effort by

putting relevant question to those witnesses and taking note of

40 their assertion that they were forced to make incorrect

statement at the time of preliminary investigation, the public

prosecutor Mr. Pardeep Mehta has declared them as hostile.

Ultimately, it is upon the presiding officer/Special Judge and

not this Court to evaluate those witnesses and arrive at a

conclusion one way or other depending on the charges leveled

against the accused. It would not be fair on the part of this

court either to assess and arrive at an opinion about the same.

Even after closing of the prosecution side by the Public

Prosecutor, if the Court wants to examine some more

witnesses from the list furnished by the prosecution, it is for

the presiding Judge to take a decision in accordance with the

law and issue appropriate direction.

22) Though, Mr. Altaf Ahmad, Learned senior counsel relied

on the decisions of this Court in K. Anbazhagan vs.

Superintendent of Police & Ors., S.K. Sukla & Ors vs. State

of U.P. & Ors. and Jayendra Saraswati Swamigal vs. State

of Tamil Nadu, (supra) in view of the factual details as seen

from the materials placed before the Special Court and the

41 details shown in the form of reply affidavit on behalf of the

Respondent No. 1 in response to the Transfer Petition No. 235

of 2008 as well as affidavit of the Chief Secretary placing

certain factual details, we are of the view that those decisions

are not helpful/applicable to the cases on hand.

23) The analysis of all the materials, the transfer of the case

as sought for, at this stage, is not only against the interest of

prosecution but also against the interest of other accused

persons, the prosecution witnesses and the convenience of all

concerned in the matter. For the sake of repetition, it is

relevant to mention that when the complainant was examined

as PW 56, he disowned his complaint and asserted that it

(complaint) was not filed by him though he admitted his

signature found therein. Further, all important witnesses

particularly government officials informed that what they said

before the Court alone is absolute truth and they were forced

to make false statement at the time of registering the

complaint. As stated earlier, similar transfer petition which

was filed before the High Court ended in dismissal and it

became final. We are satisfied that the presiding officer of the

42 Special Court is conscious of his power and how to conduct

fair trial at the same place. We are also of the opinion that the

public prosecutor cannot act on the dictates of the State

Government, he has to act objectively as he is also an Officer

of the Court. The Special Court is free to assess whether

prosecution has established its case. We have already pointed

out that a mere allegation that there is apprehension that

justice will not be done in a given case alone does not suffice.

Considering the totality of all circumstances, we are of the

opinion that in a secular, democratic Government, governed

by the rule of law, the State of Punjab is responsible for

ensuring free, fair and impartial trial to the accused,

notwithstanding, the nature of the accusations made against

them. In the case on hand, the apprehension entertained by

the petitioners cannot be construed as reasonable one and the

case cannot be transferred on a mere allegation that there is

apprehension that justice will not be done.

24) Taking into consideration the entire facts and

circumstances of the case and the materials on record, we are

of the view that the petitioners have not made out a case that

43 they have reasonable apprehension of not availing justice in

the State of Punjab. We would like to clarify that we have not

expressed anything on the merits neither of the prosecution

case nor the defence of the accused and whatever said in the

earlier paragraphs are applicable only for disposal of transfer

petitions and ultimately it is for the Special Court to decide the

issues in the light of the material placed and in accordance

with the law. The inevitable conclusion is that both the

transfer petitions filed by the petitioners deserve to be

dismissed, which we direct.

......................................CJI (K.G. BALAKRISHNAN)

..........................................J. (P. SATHASIVAM)

..........................................J. New Delhi; (J.M. PANCHAL) May 14, 2009.

44