Bhiaru Ram & Ors vs Central Bureau Of Investigation & Ors

Additional Solicitor General, for the contesting

respondents.

5) Section 406 of the Code of Criminal Procedure

empowers this Court to transfer any case or appeal 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. We are concerned about sub-clause

(1) of Section 406 which reads as under:

"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."

It is clear from the abovesaid provision that for the ends of

justice, this Court can transfer any criminal case or appeal to

any place. In order to transfer a case from one State to

4 another or from one place to another, there must be

"reasonable apprehension" on the part of the party to a case

that justice may not be done. Mere allegation that there is

apprehension that justice will not be done, cannot be the basis

of transfer. In fact, in the case on hand, it is not the claim of

the petitioners that they may not get fair justice at Special

Court, CBI, Greater Mumbai but they are seeking transfer

mainly on the basis of convenience stating that all of them are

hailing from Rajasthan and majority of the witnesses going to

be examined are from Jaipur, Rajasthan.

6) In a recent judgment pronounced on 23.07.2010 in

D.A.V. Boys Sr. Sec, School Etc. Etc. vs. D.A.V. College

Managing Committee, Transfer Petition (C) Nos. 1233-1237

of 2008, this Court while considering the power of this Court

to transfer suits, appeals etc. on the civil side under Section

25 of Civil Procedure Code has held that,

"Section 25 of the Code itself makes it clear that if any application is made for transfer, after notice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other Civil Court in one State to another High Court or other Civil Court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the

5 chosen forum will result in denial of justice. Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which suit is pending. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings."

From the above, it is clear that the above mentioned

principles have to be kept in mind while dealing with

transfer petitions.

7) In the case on hand, except convenience, the petitioners

have not pressed into service any other ground for transfer.

In fact, Mr. P.H. Parekh, informed this Court that the

petitioners are willing to attend the proceedings at Delhi, if

the case is transferred to Special Court, CBI, Delhi. Mr.

H.P.Raval, learned ASG, after taking us through specific

averments made in the counter affidavit filed on behalf of

Respondent Nos. 1 & 2 (CBI), submitted that the main

accused Shri B.R. Meena is a very influential person in the

State of Rajasthan and there is strong apprehension that

due to influence of Shri B.R. Meena, there would be no fair

trial at Jaipur or any other place in the State of Rajasthan.

He also pointed out that the Court of Special Judge, CBI at

6 Greater Mumbai has ample jurisdiction to try this case

because various movable properties have been found in

Mumbai and the main accused, Sh. B.R. Meena, was posted

in Mumbai from 2001 to the end of the check period, i.e.

04.10.2005 and this is the period during which most of the

properties were allegedly acquired by him and his family

members.

8) We have already adverted to the fact that against the

main accused, Shri B.R. Meena, (IRS 1977), Commissioner

of Income Tax, Income Tax Appellate Tribunal, Mumbai, a

case has been registered on 29.09.2005 under Section 13(2)

read with Section 13(1)(e) of the Prevention of Corruption

Act, 1988 for possession of assets in his own name and in

the name of his family members to the extent of

Rs.43,29,394/- which were disproportionate to his known

sources of income and could not be satisfactorily accounted

for. It further shows that respondent No.3, during the

check period i.e. 01.04.1993 to 04.10.2005, acquired assets

disproportionate to his known sources of income to the

extent of Rs.1,39,39,025/-. The petitioners have been

7 charge sheeted for commission of offences under Section

109 read with Section 193 of the IPC read with Section

13(2) read with Section 13(1)(e) of the Prevention of

Corruption Act, 1988 for having actively aided and abetted

Respondent Nos. 3 to 4 by fabricating false evidence

through preparation of false Agreements to Sell with the

object to justify/explain the huge cash recoveries from the

residential premises of respondent No.3. It further reveals

that the petitioners entered into false transactions with

respondent No.3 showing receipt of cash amounts against

alleged purchase of immovable properties from him. The

stamp papers were purchased against registration of case

and false Agreements to Sell were prepared in connivance

with each other.

9) A perusal of the charge sheet containing all these

details clearly shows that witnesses to be examined are not

only from Jaipur, Rajasthan, but also from various other

places including Mumbai. Though the petitioners may have

a little inconvenience, the mere inconvenience may not be

sufficient ground for the exercise of power of transfer but it

8 must be shown that the trial in the chosen forum will result

in failure of justice. We have already pointed out that

except the plea of inconvenience on the ground that they

have to come all the way from Rajasthan no other reason

was pressed into service. Even, the request for transfer to

Delhi cannot be accepted since it would not be beneficial

either to the petitioners or to the prosecution. In fact, the

main accused, respondent Nos. 3 & 4 have not filed any

petition seeking transfer. In such circumstances, the plea of

the petitioners for transfer of the case from the Court of

Special Judge, CBI, Greater Mumbai to Special Judge, CBI,

Jaipur on the ground of inconvenience cannot be accepted.

10) In the light of the above discussion and conclusion,

the transfer petition is dismissed.

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

..........................................J. (ASOK KUMAR GANGULY) NEW DELHI;

AUGUST 3, 2010.

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