Jahid Shaikh & Ors vs State Of Gujarat & Anr

2. The aforesaid Sessions Case arises out of FIR

Nos.1-236 of 2008 of Shahibaug Police Station and

various other FIRs lodged with different Police

Stations in the State of Gujarat. Apart from FIR

Nos.I-236 of 2008 of Shahibaug Police Station, the

aforesaid Sessions Case No.38 of 2009 also involves

the following FIRs in which the Petitioners have

been implicated :-

(a) I-203 of 2008, I-204 of 2008, I-205 of

2008 and I-206 of 2008 of Maninagar

Police Station;

(b) I-338 of 2008 and I-339 of 2008 of

Odhav Police Station;

(c) I-400 of 2008 and I-401 of 2008 of

Naroda Police Station;

(d) I-321 of 2008 and I-322 of 2008 of

Ramol Police Station;

(e) I-190 of 2008 of Isanpur Police

Station;

(f) I-218 of 2008 of Vatva Police Station;

3

(g) I-273 of 2008 of Amraiwadi Police

Station;

(h) I-71 of 2008 of Khadia Police Station;

(i) I-220 of 2008 of Bapunagar Police

Station;

(j) I-123 of 2008 of Kalupur Police

Station;

(k) I-140 of 2008 of Danilimbda Police

Station;

(l) I-181 of 2008 of Sarkhej Police

Station;

(m) I-200 of 2008 of Kalol Police Station;

(n) 176 of 2008, 175 of 2008, 179 of 2008

and 180 of 2008 of Kapodra Police

Station;

(o) 365 of 2008, 363 of 2008, 364 of 2008,

369 of 2008 and 366 of 2008 of Varacha

Police Station;

(p) 203 of 2008 and 208 of 2008 of

Katargam Police Station;

(q) 651 of 2008 of Umrah Police Station;

(r) 3019 of 2008 of DCB Police Station;

(s) 208 of 2008 and 209 of 2008 of

Mahidharpura Police Station.

4

All the aforesaid FIRs have been lodged in

connection with the series of bomb blasts that

occurred in 2008 all over the country in major

cities like Delhi, Mumbai, Jaipur, Ahmedabad and

Bengaluru, killing many and injuring several

others. As a response to the aforesaid blasts which

were declared to be acts of terrorism by the State

Government, a large number of young men belonging

to the Muslim community were arrested both from

within and outside the State of Gujarat.

3. Appearing in support of the Transfer

Petition, learned Advocate, Mr. Prashant Bhushan,

submitted that the Transfer Petition seeking

transfer of the trial of the accused in the

Ahmedabad bomb blast cases, as well as in the cases

relating to planting of bombs in Surat, out of the

State of Gujarat, was necessitated on account of

the attitude and conduct of the local authorities.

Mr. Bhushan submitted that the local police

5

authorities, jail authorities and the public

prosecutor had conducted themselves in a manner

which reflects total bias and prejudice against the

accused and the same has created more than a

reasonable apprehension in their mind that they

would not get a fair and free trial in the State of

Gujarat.

4. Among the more glaring examples of bias and

prejudice pointed out by Mr. Prashant Bhushan was

the allegation that charges were framed against the

accused without supplying them with the essential

documents which were required to be supplied under

Section 207 of the Code of Criminal Procedure

(Cr.P.C.), particularly when the majority of the

accused were not being represented through counsel.

Mr. Bhushan submitted that in cases instituted upon

a police report, Section 207 Cr.P.C. makes it

obligatory on the part of the Magistrate to provide

the accused, without delay, free of cost, copies of

the police report, the First Information Report

6

recorded under Section 154 Cr.P.C., the statements

recorded under Sub-Section (3) of Section 161

Cr.P.C. of all the persons whom the prosecution

proposed to examine as its witnesses, the

confessions and statements recorded under Section

164 Cr.P.C., as well as any other document or

relevant extract forwarded to the Magistrate with

the police report under Sub-Section (5) of Section

173 Cr.P.C. Mr. Bhushan urged that under Section

227 Cr.P.C. the accused have a right to oppose the

framing of charges on the basis of the evidence

gathered during investigation, which requires the

accused to have copies of all the documents

mentioned in Section 207 of the Code. Mr. Bhushan

submitted that the said right to have the police

papers had been violated by the Respondents,

inasmuch as, most of the accused did not have

access to all the papers at the time of framing of

charges against them. Mr. Bhushan submitted that

those who had been favoured with copies of the

7

police papers were unable to understand the same,

as they were in Gujarati which language was not

known to most of the accused, most of them were

from outside the State of Gujarat. Mr. Bhushan

also submitted that the learned Advocates of those

who were provided with copies of the charge-sheets

in Gujarati were barely given four days' time to

consider the same to prepare their case for

discharge of the accused.

5. Despite the fact that on the date of framing of

charges, many of the accused had not been served

with copies of the charge-sheet and connected

papers, such as the statement of witnesses and

confessional statements of the accused recorded

under Section 164 Cr.P.C., and other documents, and

those who had been served, were served with copies

of the same in Gujarati, the learned Designated

Judge framed charges against the accused persons on

11th January, 2010. Mr. Bhushan submitted that the

8

majority of the accused were provided with lawyers

and copies of the charge-sheet and other documents

after charge had already been framed. [Emphasis

Supplied] Mr. Bhushan submitted that some of the

accused, who did not receive the said documents,

moved an Application on 15th February, 2010, but the

same was rejected without such copies being

supplied.

6. Mr. Bhushan urged that apart from the above,

one other serious grievance which the accused had,

which has led to the apprehension of bias, was that

the counsel for the accused were not permitted to

meet their clients even for 10 minutes in their

Court chambers, without the police being present,

despite the applications made on behalf of the

accused that they would not be in a position to

speak freely in the presence of the police for fear

of subsequent reprisal at the hands of the police.

Mr. Bhushan submitted that although the Court was

9

fully aware of the fact that the accused would not

be able to speak freely about the torture inflicted

on them while in custody, it decided to look the

other way to prevent the learned advocates for the

accused to obtain a true picture of the allegations

made by the accused of torture at the hands of

police while in custody. Mr. Bhushan submitted

that the Court chose to disregard the reality that

after their production in Court, the accused would

have to go back to the custody of police and to

suffer the consequences of their disclosures in

Court. Mr. Bhushan submitted that even in the

light of the serious allegations made against the

police of torture and the evidence in support

thereof, the Court did not think it necessary to

even order an independent investigation to verify

the truth or otherwise of such allegations. Mr.

Bhushan urged that on account of the disinterest

shown by the Courts with regard to the complaints

of torture made by the accused, the jail

10

authorities became emboldened and subjected the

accused to other indignities, including the

storming of the barracks of the accused on 27th

March, 2009, and severely beating the inmates

thereof.

7. Mr. Bhushan submitted that several affidavits

had been filed by the relatives of the accused

which revealed the severe physical torture

inflicted on the accused which were supported by

medical reports of doctors who examined the

victims, but despite such evidence, the trial court

did not order an independent probe into the

incident and, instead, sought a report from the

jail authorities who, as it could have been

expected, stated that it was the accused who had

revolted and had to be subdued by the jail

authorities. It was the aforesaid explanation of

the jail authorities which was ultimately upheld by

the Court. Mr. Bhushan submitted that the jail

11

authorities had placed reliance on a report by the

Additional Principal Judge into an incident which

had taken place prior to the incident of 27th March,

2009. In other words, the matter referred to in

the order dated 5th December, 2009, passed by the

Gujarat High Court had no connection with the

incident forming the basis of the transfer

petition.

8. Mr. Bhushan contended that apart from the

above, there were several other instances of bias

indicated hereinbelow, which had given rise to the

apprehension in the minds of the accused that they

would not get a free and fair trial as is

guaranteed under Article 21 of the Constitution,

before the learned Designated Judge, namely,

a) On the date of hearing, the

Investigating Officer, Mr. Tolia, was

seen leaving the Chamber of the

learned Designated Judge, which fact

was admitted, but was attempted to be

12

explained on the ground that such

visits were in connection with other

matters pertaining to the bomb blast

cases. An application made thereafter,

requesting the learned Judge to recuse

herself from the cases remained

undecided.

b) On 15th February, 2010, this Court

stayed the proceedings before the

Designated Judge and, although, the

same was orally conveyed to the

learned Judge, she rejected all the

applications praying for adjournment,

and completed framing of charge and

fixed 19th February, 2010, for

evidence. Within two weeks thereafter

on 21st March, 2010, the Designated

Judge also rejected the application

for transit remand for 11 accused to

be brought to Delhi for framing of

charge in connection with the case

pending in Delhi, on the ground that

charge had already been framed against

them and the trial had been stayed by

this Court.

13

c) Although, out of 64 accused, 42 were

from outside Gujarat from eight

different States, copies of the

charge-sheet in Gujarati were

attempted to be served on some of the

accused in a show of compliance with

the provisions of Section 173 Cr.P.C.

which would not enable the accused to

make an effective representation at

the time of framing of charge. Even

the copies which were served on

22 of the accused, who were

Gujaratis, were found to be illegible.

d) The accused were severely prejudiced

by the fact that although the orders

passed by the Metropolitan Magistrate

or the Designated Judge were

appealable, it was impossible for them

to seek any further relief since the

majority of the accused were from

outside Gujarat and their cases were

being looked after by Legal Aid

counsel or by counsel appearing pro

bono.

14 9. Mr. Bhushan submitted that it is now well-

settled by this Court in the case of Zahira

Habibulla H. Sheikh Vs. State of Gujarat [(2004) 4

SCC 158] and Maneka Sanjay Gandhi & Anr. Vs. Miss

Rani Jethmalani [(1979) 4 SCC 169], etc., that in

the event local communal feelings, which are borne

out from the manner in which the accused were

treated by the police, jail staff and the Courts

are such that they create an atmosphere which is

not conducive to the holding of a fair trial, the

cases should be transferred to a neutral location

in the interest of justice. Mr. Bhushan submitted

that as was held in Maneka Sanjay Gandhi's case

(supra) and quoted with approval in Zahira

Habibulla H. Sheikh's case (supra), one of the more

serious grounds which disturbed the conscience of

the Court in more ways than one, is the alleged

absence of a congenial atmosphere for a fair and

impartial trial. Mr. Bhushan submitted that such a

sentiment had been expressed as far back as in 1958

15

by Justice Vivian Bose in the case of G.X. Francis

& Ors. Vs. Banke Behari Singh & Anr. [1958 Crl.L.J.

569= AIR 1958 SC 309], where his Lordship observed

that good grounds for transfer had been made out

because of the bitterness of the local communal

feeling and the tenseness of the atmosphere there.

His Lordship also observed that public confidence

in the fairness of a trial held in such an

atmosphere would be seriously undermined,

particularly amongst reasonable Christians all over

India, not because the Judge was unfair or biased,

but because the machinery of justice is not geared

to work in the midst of such conditions. [Emphasis

Supplied]

10. In support of his aforesaid contention, Mr.

Prashant Bhushan also referred to the decisions of

this Court in K. Anbazhagan Vs. Supdt. Of Police

[(2004 (3) SCC 767], Surendra Pratap Singh Vs.

State of U.P. & Ors. [(2010) 9 SCC 475], and

Gurcharan Dass Chadha Vs. State of Rajasthan 16

[(1966) 2 SCR 678 = AIR 1966 SC 1418]. Mr. Bhushan

submitted that the law as settled by this Court for

transferring a trial did not require the Petitioner

to prove that he would be deprived of a free and

fair trial, but the test is whether there are

circumstances which create a reasonable

apprehension that he might not get a free and fair

trial. Learned counsel further submitted that the

contention of the State that the case was no longer

before the Metropolitan Magistrate and that even

the Designated Judge had since been changed, was of

little consequence, since trial by a different

Judge would not restore the invaluable rights which

had been denied to the accused at the stage of

framing of charge.

11. Mr. Prashant Bhushan submitted that in the

circumstances indicated, it was only just and

proper that the Transfer Petition be allowed and

that Sessions Case No.38 of 2009 pending before the

17

Special Judge, Ahmedabad, be transferred outside

the State of Gujarat for trial.

12. Appearing for the State of Gujarat and the

Inspector General of Prisons, Ms. Hemantika Wahi,

learned Advocate, strongly opposed the Transfer

Petition and contended that it was only after

intensive investigation that charge-sheets had been

filed against the accused persons who had travelled

to different parts of Gujarat as a part of a

criminal conspiracy under false and vexatious names

and planted bombs at different locations in

thickly-populated public places to cause the

maximum amount of damage and terror. It was

submitted that the allegation made relating to the

alleged bias and/or lack of confidence in getting a

free and fair trial before the Magistrate and the

Designated Sessions Judge, was entirely without

foundation, as were the allegations also made

against the Jail Authorities. Ms. Wahi submitted

that a few orders, even if held to be incorrect,

18

could not be a ground for transferring the entire

prosecution out of the State of Gujarat as that

would lead to various difficulties for the

prosecution in producing witnesses at the time of

trial. Ms. Wahi submitted that there were a large

number of witnesses in respect of the cases

relating to Ahmedabad and Surat and that it would

be impossible for such a large number of witnesses

to be produced before a Court outside the State of

Gujarat for giving evidence before a Court where

the language used was not Gujarati. Apart from

the above, in all the offences which had been

consolidated in one Sessions Case, there were 144

charge-sheets/supplementary charge-sheets, each

containing on an average 2000 to 3000 pages. It

was submitted that if the prayer made in the

Transfer Petition was allowed, it would result in

complete injustice, as it was most likely that the

trial would end in acquittal of the accused.

19 13. Ms. Wahi also contended that the allegation of

bias made against the Magistrate or Sessions Judge

was no longer relevant since the matter had already

been committed by the Magistrate to the Court of

Sessions while the learned Sessions Judge had since

been elevated as a Judge of the Gujarat High Court

and the trial would be conducted by a Judge other

than the said Judge against whom the allegation of

bias had been made. Ms. Wahi submitted that it was

not as if the Petitioners were aggrieved by the

entire judiciary in the State, inasmuch as, such an

allegation would be entirely misplaced and in the

changed circumstances the arguments advanced in

favour of transfer of the Sessions Case outside the

State of Gujarat could no longer be justified and

were liable to be rejected.

14. Ms. Wahi submitted that the decision in Zahira

Habibulla H. Sheikh's case (supra) was on a

completely different set of facts, and, in any

event, each case would have to be treated on its

20

own set of facts and merits. Even the allegation

of torture in custody has not been proved to the

satisfaction of the Court.

15. Ms. Wahi submitted that the case attempted to

be made out on behalf of the Petitioners for

transfer of the Sessions Trial outside the State of

Gujarat, is based on suppression of material facts

relating to the alleged non-supply of charge-sheet

papers. It was urged that the same had been

refused despite having been offered to the

Petitioners and that an opportunity was duly given

to the Petitioners to engage Advocates of their

choice on their refusal to accept legal aid as

offered by the Court or even from the State Legal

Services Authority. In fact, most of the accused

persons subsequently engaged Advocates of their

choice to represent and defend them at the time of

trial, which fact had been withheld from the Court.

Ms. Wahi submitted that all the allegations made by

21

the Petitioners against the Respondents were

entirely false and merited rejection.

16. Having regard to the nature of the relief

sought for by the Petitioners, we have considered

the submissions made on behalf of respective

parties and the materials on record with care and

caution. It appears to us that at the initial

stages of the investigation and filing of charge-

sheets some amount of bias could well have been

detected. However, once the matter had gone out of

the hands of the Magistrate concerned, no further

bias could be attributed to him. Similarly, the

allegation of bias against the District & Sessions

Judge was no longer available since the incumbent

had been elevated to the Bench and the trial will

be conducted by another learned Judge.

17. However, as pointed out by Mr. Prashant

Bhushan, learned counsel appearing for the

Petitioners, the manner in which the charges had

22

been framed, without giving the Petitioners a

meaningful opportunity of meeting the allegations

made against them in the charge-sheet, will

ultimately have a direct bearing on the trial

itself. The duty of the Sessions Court to supply

copies of the charge-sheet and all the relevant

documents relied upon by the prosecution under

Sections 207 and 208 Cr.P.C. is not an empty

formality and has to be complied with strictly so

that the accused is not prejudiced in his defence

even at the stage of framing of charge. The fact

that many of the accused persons were not provided

with copies of the charge-sheet and the other

relevant documents, as indicated in Sections 207

and 208 Cr.P.C., seriously affects the right of an

accused to a free and fair trial. In the instant

case, in addition to the above, it has also to be

kept in mind that most of the accused persons in

this case are from outside the State of Gujarat and

are not, therefore, in a position to understand the

23

documents relied upon by the police authorities as

they were in Gujarati which most of the accused

were unable to comprehend. Their demand for

translated copies of the documents met with no

response, and ultimately it was the very same

documents in Gujarati, which were supplied to some

of the accused in some of the cases.

18. The physical torture which was said to have

been inflicted on the Petitioners has come on

record by way of affidavits to which there is no

suitable explanation. Furthermore, the accused

persons were not allowed to meet their lawyers

without police presence, and as stated by them, it

is only natural that an accused in custody will

have second thoughts before making or reiterating

allegations of torture against the very persons to

whose custody they would have to return.

19. Apart from the above, we also have to consider

Ms. Wahi's submissions regarding the convenience of

24

the prosecution which intends to produce a large

number of witnesses, who are all said to be

residents of the State of Gujarat. It has been

submitted by Ms. Wahi that the examination of such

a large number of witnesses could be compromised

and/or jeopardized in the event they are required

to travel outside the State of Gujarat in

connection with the trial. There will also be a

language problem for the witnesses to be examined

outside the State of Gujarat, since the majority of

the witnesses were acquainted mostly with Gujarati

and would be at a disadvantage in providing a true

picture of the series of incidents relating to the

bomb blasts which were triggered off in the cities

of Ahmedabad and Surat on 26th July, 2008.

20. However, in our criminal justice delivery

system the balance tilts in favour of the accused

in case of any doubt in regard to the trial. The

Courts have to ensure that an accused is afforded a

25

free and fair trial where justice is not only done,

but seen to be done and in the process the accused

has to be given the benefit of any advantage that

may enure to his/her favour during the trial. As

was observed by this Court in Commissioner of

Police Vs. Registrar, Delhi High Court [(1996) 6

SCC 323], Article 21 of the Constitution enshrines

and guarantees the precious right of life and

liberty to a person, deprivable only on following

the procedure established by law in a fair trial,

assured of the safety of the accused. Except in

certain matters relating to economic offences or in

regard to national security, the burden lies

heavily on the prosecution to prove its case to the

hilt and it is rarely that the accused is called

upon to prove his innocence.

21. This is a case where the apprehension of the

accused being denied a free and fair trial within

the State of Gujarat has to be considered on the

26

weight of the materials produced on behalf of the

accused in support of such apprehension and the

prejudice that may also be caused to the

prosecution in presenting its case. That the facts

involved in this case are of a sensitive nature,

cannot be denied, but that by itself cannot be a

ground for transfer of the trial outside the State

of Gujarat. A good deal of care and caution has to

be exercised to see whether the accused/petitioners

have been able to make out a case of bias and

prejudice on the part of the State or the

prosecuting authorities which raises a very real

and plausible ground for transferring the trial

pending before the Special Judge, Ahmedabad outside

the State of Gujarat. Apart from the above, what

has also to be taken into consideration is a

conceivable surcharged communal climate which could

have a direct bearing on the trial itself. The

Court has to undertake a balancing act between the

interest of the accused, the victims and society at

27

large in the focus of Article 21 of the

Constitution to ensure a free and fair trial to the

accused.

22. The question involved in this case has earlier

fallen for consideration in various other cases

before this Court which have been referred to

hereinbefore. It will be profitable to refer to

some of the observations made by this Court in such

cases.

23. In this regard, we may first refer to a three-

Judge Bench decision in the case of G.X. Francis &

Ors. (supra), where also this Court was considering

a Transfer Petition filed on the apprehension of

bias in the minds of the accused. The said

petition involved the transfer of a complaint

wherein the accused were said to have been

concerned in one way or the other in defamatory

statements against the complainant regarding a

publication known as the "Niyogi Report".

28 Authoring the judgment on behalf of the Bench,

Vivian Bose, J. observed that where there is

unanimity of testimony from both sides about the

nature of the surcharged communal tension in the

area in question and the local atmosphere is not

conducive to a fair and impartial trial, there is a

good ground for transfer. The learned Judge also

observed that public confidence in the fairness of

a trial held in such an atmosphere would be

seriously undermined, particularly among reasonable

Christians all over India, not because the Judge

was unfair or biased but because the machinery of

justice is not geared to work in the midst of such

conditions. The calm detached atmosphere of a fair

and impartial judicial trial would be wanting and

even if justice were done it would not be "seen to

be done".

24. We may now refer to another three-Judge Bench

decision of this Court in the case of Gurcharan

Dass Chadha Vs. State of Rajasthan [(1966) 2 SCR

29

678 = AIR 1966 SC 1418], which also involved a

Transfer Petition based on the ground of reasonable

apprehension on the part of the petitioner that

justice would not be done to him by the Court

before whom the trial was pending under the

provisions of the Penal Code and the Prevention of

Corruption Act. While disposing of the matter,

this Court observed as follows :

"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. The

Court has further to see whether the

apprehension is reasonable or not."

30

25. The aforesaid question once again cropped up in

Maneka Sanjay Gandhi & Anr. Vs. Miss Rani

Jethmalani [(1979) 4 SCC 169], in a Transfer

Petition filed, inter alia, on three grounds,

namely,

(i) that the parties (complainant and

petitioners) reside in Delhi and some

formal witnesses also belong to Delhi;

(ii) that the petitioner is not able to procure

competent legal service in Bombay; and

(iii) that the atmosphere in Bombay is not

congenial to a fair and impartial trial of

the case against her.

Referring to the decision in G.X. Francis's

case (supra) a Three-Judge Bench of this Court,

dismissed the Transfer Petition upon holding that

none of the allegations made by the petitioner made

out a case that a fair trial was not possible in

31

the Court where the matter was pending. The mere

words of an interested party was insufficient to

convince the Court that she was in jeopardy or the

Court might not be able to conduct the case under

conditions of detachment, neutrality or

uninterrupted progress. This Court, however, went

on to say that it could not view with unconcern the

potentiality of a flare up and the challenge to a

fair trial. In such circumstances, this Court made

certain precautionary observations to protect the

petitioner and to ensure for her a fair trial. In

K. Anbazhagan Vs. Superintendent of Police, Chennai

& Ors. [(2004) 3 SCC 788], while disposing of two

transfer petitions, the learned Judges observed as

follows :

"A free and fair trial is a 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

32

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 minds of

the petitioner."

26. Before we proceed to the latest views expressed

by this Court in a Transfer Petition also praying

for transfer of a trial outside the State of

Gujarat on account of bias and a vitiated communal

atmosphere, we may refer to a slightly different

view taken by this Court by a Bench of two-Judges

in the case of Abdul Nazar Madani Vs. State of T.N.

& Anr. [(2000) 6 SCC 204]. While disposing of a

Transfer Petition filed by the accused in the

Coimbatore Serial Bomb Blasts case on the

allegation that the atmosphere in the State of

Tamil Nadu in general and in Coimbatore in

particular, being so communally surcharged that his

fair and impartial trial there would be seriously

impaired, this Court held that the purpose of a

criminal trial is to dispense fair and impartial

33

justice uninfluenced by extraneous considerations.

This Court observed 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. The mere existence

of a surcharged atmosphere without there being

proof of inability of the Court of holding a fair

and impartial trial, could not be made a ground for

transfer of a case. The alleged communally

surcharged atmosphere has to be considered in the

light of the accusations made and the nature of the

crimes committed by the accused seeking transfer of

the case. It was observed that no universal and

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.

27. As has been stated hereinbefore, in Zahira

Habibulla H. Sheikh's case (supra), in order to

ensure a free and fair trial the atmosphere in

34

which the case is tried should be conducive to the

holding of a fair trial. The absence of a

congenial atmosphere for such a fair and impartial

trial was held to be a good ground for transfer of

the case from Gujarat to Maharashtra.

28. However, such a ground, though of great

importance, cannot be the only aspect to be

considered while deciding whether a criminal trial

could be transferred out of the State which could

seriously affect the prosecution case, considering

the large number of witnesses to be examined to

prove the case against the accused. The golden

thread which runs through all the decisions cited

on behalf of the parties, is that justice must not

only be done, but must also be seen to be done. If

the said principle is disturbed, fresh steps can

always be taken under Section 406 Cr.P.C. and Order

XXXVI of the Supreme Court Rules, 1966 for the same

reliefs.

35 29. The offences with which the accused have been

charged are of a very serious nature, but except

for an apprehension that justice would not be

properly administered, there is little else to

suggest that the charged atmosphere which existed

at the time when the offences were alleged to have

been committed, still exist and was likely to

prejudice the accused during the trial. All

judicial officers cannot be tarred with the same

brush and denial of a proper opportunity at the

stage of framing of charge, though serious, is not

insurmountable. The accused have their remedies

elsewhere and the prosecution still has to prove

its case. As mentioned earlier, the communally

surcharged atmosphere which existed at the time of

the alleged incidents, has settled down

considerably and is no longer as volatile as it was

previously. The Presiding Officers against whom

bias had been alleged, will no longer be in charge

of the proceedings of the trial. The conditions in

36

Gujarat today are not exactly the same as they were

at the time of the incidents, which would justify

the shifting of the trial from the State of

Gujarat. On the other hand, in case the Sessions

Trial is transferred outside the State of Gujarat

for trial, the prosecution will have to arrange for

production of its witnesses, who are large in

number, to any venue that may be designated outside

the State of Gujarat. At the present moment, the

case for transfer of the trial outside the State of

Gujarat is based on certain incidents which had

occurred in the past and have finally led to the

filing of charges against the accused. The main

ground on which the Petitioners have sought

transfer is an apprehension that communal feelings

may, once again, raise its ugly head and permeate

the proceedings of the trial if it is conducted by

the Special Judge, Ahmedabad. However, such an

allegation today is more speculative than real, but

in order to dispel such apprehension, we also keep

37

it open to the Petitioners that in the event the

apprehension of the petitioners are proved to be

real during the course of the trial, they will be

entitled to move afresh before this Court for the

relief sought for in the present Transfer Petition.

30. The Transfer Petition is disposed of with the

aforesaid observations. There will be no order as

to costs.

.......................................J.

(ALTAMAS KABIR)

.......................................J.

(CYRIAC JOSEPH)

NEW DELHI,

DATED: JULY 6, 2011