Rajesh Talwar vs C.B.I & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

TRANSFER PETITION (CRL.) NO. 45 OF 2012

Rajesh Talwar .... Petitioner

Versus

Central Bureau of Investigation & Ors. .... Respondents

WITH

TRANSFER PETITION (CRL.) NO. 46 OF 2012

Nupur Talwar .... Petitioner

Versus

Central Bureau of Investigation & Ors. .... Respondents

ORDER

1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no. 45 of 2012

and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012.

These petitions have been filed under Section 406 of the Code of Criminal

Procedure, 1973, praying for the transfer of Special Case No. 01/2011

pending before the Court of the Special Judicial Magistrate (CBI)

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Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi.

Both these petitions are being disposed of by a common order, because

the prayers made are identical and are based on the same grounds,

arising out of the same factual background.

2. Before dealing with the grounds raised by the petitioners, it is

necessary to briefly record the sequence of events leading to the filing of

the instant transfer petitions. The prosecution under reference pertains to

the murder of Aarushi Talwar, daughter of the two petitioners, namely,

Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening

15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first

information report registered at police station, Sector 20, Noida, alleging

that their domestic help Hemraj had committed the murder of their

daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the

body of Hemraj was also found on the roof of the petitioners' residence.

Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was

arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was

produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On

27.5.2008, the Chief Judicial Magistrate, granted police custody of

Dr. Rajesh Talwar till 30.5.2008. Even though the matter was originally

investigated by the State Police, on 29.5.2008, investigation was

transferred to the Central Bureau of Investigation (hereinafter referred to

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as "the CBI"). The CBI then recorded a separate first information report.

On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.

3. Having concluded the investigation, the CBI filed an application

(purported to be an application under Section 169 of the Code of Criminal

Procedure), asserting lack of incriminating evidence against Dr. Rajesh

Talwar. In the application it was also asserted, that further judicial custody

of Dr. Rajesh Talwar was unnecessary. Accordingly, on 11.7.2008, the

Special Judicial Magistrate (CBI) Ghaziabad, ordered the release of Dr.

Rajesh Talwar, on bail.

4. On 29.12.2010, a closure report was submitted by the CBI before

the Special Judicial Magistrate (CBI) Ghaziabad. It was contended

therein, that sufficient evidence was not available to prove the guilt of Dr.

Rajesh Talwar, in the murder of his daughter Aarushi Talwar. Accordingly,

a prayer was made for the closure of the case due to insufficient evidence.

Since Dr. Rajesh Talwar was the author of the first information report dated

16.5.2008, notice of the aforesaid application came to be issued to him.

On 25.1.2011, Dr. Rajesh Talwar filed a detailed protest petition. By an

order dated 9.2.2011, the Special Judicial Magistrate (CBI) Ghaziabad,

rejected the prayer made by the CBI for closure of the case due to

insufficient evidence. Simultaneously, the Magistrate summoned

Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face trial under Section

302 read with Section 34 and Section 201 read with Section 34 of the

4 Indian Penal Code. The summoning order dated 9.2.2011 was assailed by

the petitioners by filing Criminal Revision no. 1127 of 2011 before the High

Court of Judicature at Allahabad. The aforesaid challenge made under

Section 482 of the Code of Criminal Procedure, was rejected by the High

Court on 18.3.2011. Dr. Rajesh Talwar assailed the order passed by the

High Court by filing Special Leave Petition (Crl.) No. 2981 of 2011,

whereas, the said order was assailed by Dr. Mrs. Nupur Talwar by filing

Special Leave Petition (Crl.) No. 2982 of 2011. The challenge raised by

the petitioners was declined by this Court vide an order dated 6.1.2012 (in

Special Leave Petition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur

Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of

2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated

9.1.2012 is being extracted hereinbelow:-

"We have heard learned counsel for the parties. It appears that

pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68

of 2012 titled "Dr. Mrs. Nupur Talwar versus C.B.I. Delhi & Anr.",

whereby this Hon'ble Court upheld the order dated 9.2.2011 of the

Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01

of 2011 whereby cognizance was taken, the petitioner herein would

appear before the Special Judicial Magistrate (CBI), Ghaziabad on

4.2.2012 which, we understand, is the date fixed for hearing.

It is also not in dispute that the petitioner Dr. Rajesh Talwar is

on bail since 2008 virtually by an order dated 11th July, 2008 and he

also furnished bail bond pursuant to that order. In that view of the

matter, we direct the petitioner - Dr. Rajesh Talwar to remain on

bail. It is understood that the petitioner has already deposited his

passport and the same is lying with the Court of the learned

Magistrate. In the meantime, the petitioner shall not leave the local

Police Station without obtaining the permission of the learned

Magistrate.

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With this order, the present Special Leave Petition is disposed

of. We make it clear that this order will not prevent either of the

parties from moving such application as they are entitled to in

accordance with law."

5. The instant two transfer petitions seeking transfer of the proceedings

in Special Case No. 01/2011 from the Court of Special Judicial Magistrate

(CBI) Ghaziabad, to a Court of competent jurisdiction at Delhi/New Delhi,

have been separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur

Talwar, primarily on the grounds of convenience and personal security.

During the course of hearing, learned counsel for the petitioners raised the

following contentions on the issue of convenience:-

(i) It was submitted, that after the murder of Aarushi Talwar on

the night intervening 15.5.2008 and 16.5.2008, for the

petitioners to reside in the same premises where the murder

of their daughter had been committed, had become

impossible. Consequently, they had shifted their residence

from Noida to New Delhi. As such, it was submitted that it

would be more convenient for the petitioners to face trial in

Delhi/New Delhi rather than at Ghaziabad.

(ii) Ghaziabad, it was pointed out, was farther away from Noida

(where the murder was committed) than New Delhi. In this

behalf, it was submitted, that distance between Noida and

Ghaziabad is 35 kms., whereas, the distance between Noida

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and New Delhi is only 17 kms. Based on the traffic situation

between Delhi and Ghaziabad, it was submitted, that the

petitioners would have to undertake several hours of travel

time to attend Court proceedings on each date of hearing.

This inconvenience could be avoided if the proceedings in

question were transferred from Ghaziabad to Delhi/New Delhi.

(iii) It was pointed out, that since the first information report was

lodged by the CBI at New Delhi itself, there would be no

difficulty in proceeding with the case at Delhi itself.

(iv) It was also contended, that holding trial before a Court of

competent jurisdiction at Delhi/New Delhi would also be a

matter of convenience to the prosecuting agency, inasmuch

as, the counsel, as also the officials/officers of the CBI were

Delhi/New Delhi based, and they too would not have to travel

to Ghaziabad on each date of hearing.

(v) Lastly, it was asserted, that a large number of witnesses

would also have to be summoned from outside U.P. It was

also pointed out, that these witnesses would have to

unnecessarily travel to Ghaziabad. Just like the petitioners, all

outside witnesses would likewise face avoidable

inconvenience, if the prayer made in the instant petition is

accepted.

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6. On the issue of personal security, learned counsel for the petitioners

contended, that when the petitioners had gone to attend court proceedings

at Ghaziabad on 25.1.2011, and whilst they were physically inside the

court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious

attack at the hands of one Utsav Sharma, with a cleaver knife. It was

submitted, that Dr. Rajesh Talwar suffered grievous injuries and was

rushed to undergo several reconstructive surgeries in the intensive care

unit of the Indraprastha Apollo Hospital, New Delhi. While explaining the

assault, it was pointed out, that Dr. Rajesh Talwar was given three blows

with the meat cleaver causing a grevious injury on the right side of his

forehead, which also resulted in the rupture of a major artery, and also,

serious injuries on both of his hands. It was also alleged, that Dr. Rajesh

Talwar was rendered handicapped as a result of the injuries inflicted upon

him by Utsav Sharma, for more than two months. It was pointed out, that a

first information report was registered by Dr. Dinesh Talwar (brother of Dr.

Rajesh Talwar) at police station Kavi Nagar, Ghaziabad on 25.1.2011, in

connection with the aforesaid assault. The aforesaid encounter within the

court premises, according to learned counsel for the petitioners, has

completely shaken the confidence of the petitioners. The petitioners are

stated to be under deep fear of attending court-proceedings at Ghaziabad

after the said assault. Relying on the judgment rendered by this Court in

Maneka Sanjay Gandhi Vs. Rani Jethmalani, (1979) 4 SCC 167, it was

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asserted, that this Court had authoritatively held, that the safety of the

person of an accused (as also, the complainant) is an essential condition

for participation in a criminal trial. Where safety itself is put in peril by

commotion, tumult or threat on account of pathological conditions

prevalent in a particular venue, it was submitted, a request as the one in

the instant case, for transfer of proceedings should be acceded to. Insofar

as the present case is concerned, it was submitted on behalf of the

petitioners, that the circumstances in the present case have gone far

beyond the possibility of a physical assault, inasmuch as, a brutal physical

attack has actually been made on Dr. Rajesh Talwar (on 25.1.2011). Relying on the judgment rendered by this Court in Zahira Habibulla H.

Sheikh Vs. State of Gujarat, (2004) 4 SCC 158, it was contended, that

justice should not only be done but it should be seen to be done. It was

pointed out, that where circumstances are such that render holding of a fair

and impartial trial, uninfluenced by extraneous considerations impossible,

an apprehension expressed by an individual seeking transfer, should be

accepted as reasonable. Inviting the Court's attention to the incident of

25.1.2011, it was submitted, that there could be no doubt, that in the

circumstances prevalent in the courts at Ghaziabad, the apprehension

expressed by the petitioners, that they are unlikely to be subjected to a fair

and impartial trial, uninfluenced by extraneous considerations, is not

unreal. Relying on the judgment rendered by this Court in Central Bureau

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of Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC 115, it was

submitted, that in a case wherein the CBI itself felt that there was a real

danger of the accused being physically attacked during the course of the

trial, this Court came to be approached (by the CBI) for transfer of the

venue of prosecution. The prayer made by the CBI was acceded to by this

Court by observing, that there could be no quarrel, that there was a real

possibility of a physical attack on the respondent-accused so long as he

was at Manipur. Yet again, it is emphasized by the learned counsel

appearing on behalf of the petitioners, that the present case stands on a

far better footing, inasmuch as, a factual assault resulting in serious

injuries has actually been suffered by Dr. Rajesh Talwar within the court

premises at Ghaziabad. It is, therefore, contended, that the fear in the

minds of the petitioners, is not imaginary. The fear in the minds of the

petitioners, is very real and bonafide. In order to support the prayer of the

petitioners on the facts delineated hereinabove, learned counsel for the

petitioners placed reliance on the judgment rendered by this Court in Ravir

Godbole Vs. State of M.P., (2006) 9 SCC 786. The order relied upon by

the petitioners is being extracted hereinbelow:-

"1. We have heard counsel for the parties.

2. The petitioner is being tried of an offence punishable under

Section 307 IPC. The trial was to take place at Indore but, in

view of the fact that the rival gang has been after his blood

and two attempts were made on his life, the High Court

transferred his trial to Bhopal. It appears that even during the

trial at Bhopal he was attacked a third time and serious

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injuries were caused to him which necessitated his being

admitted to the hospital and an operation being performed to

repair his damaged liver.

3. In these circumstances, the petitioner has prayed that his case

may be transferred to any court outside the State of M.P.

Counsel for the State does not dispute the fact that the

petitioner has been attacked thrice during this period and he

does face danger to his life. Of course, the State contends

that it will provide him with protection such as is considered

necessary. We notice that a gunman was deputed to provide

security to the petitioner but despite that he was attacked a

third time causing him serious injuries, and the gunman

deputed to protect him could do nothing except to make

himself scarce.

4. In these facts and circumstances, we transfer Sessions Trial

No. 65 of 2004 pending before the Special Court (Atrocities),

Bhopal Sessions Court, Bhopal to the Court of the District and

Sessions Judge, Nasik who may try the case himself or assign

the trial to a court of competent jurisdiction. The record of the

case shall be immediately transmitted by the Bhopal Sessions

Court to the Court of the District and Sessions Judge, Nasik.

5. This transfer petition is allowed."

(emphasis is ours)

7. It would be relevant to notice, that in the pleadings of the two

transfer petitions, the petitioners have raised a third ground (besides those

of convenience and personal security, referred to in the foregoing

paragraphs). No submissions were addressed in connection therewith

during the course of hearing. Reference to the third ground has been

made in this order only because it was pointed out by the learned counsel

representing the CBI, that the petitioners had alleged, that they were not

likely to get justice, as it appeared to them, that the Ghaziabad court was

proceeding with the matter with a pre-determined mind. The cause of the

petitioners instant impression (as per the pleadings), emerges from an

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application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of

the Code of Criminal Procedure. In the aforesaid application, Dr. Rajesh

Talwar had sought exemption from personal appearance, on the ground

that he had suffered a physical assault in the court premises on 25.1.2011,

and had been advised bed rest. The Special Judicial Magistrate (CBI)

Ghaziabad, had rejected the application for exemption, and issued bailable

warrants against Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is

concerned, she too had sought exemption from personal appearance on

the ground, that she had to file an affidavit at Allahabad in a criminal

revision petition, to assail the summoning order dated 9.2.2011(refer to

paragraph 4 above). It is submitted, that the application filed by Dr. Mrs.

Nupur Talwar was also declined. In the order dated 28.2.2011 the Special

Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants

against the petitioners. From the aforesaid determination, it was sought to

be inferred, that the petitioners were not likely to get justice, as the

Ghaziabad Court was proceeding with the matter with a pre-determined

mind.

8. During the course of hearing, another ground was also canvassed

on behalf of the petitioners, although no mention thereof had been made in

the pleadings of the two transfer petitions. During the course of hearing,

our attention was invited by the learned counsel appearing on behalf of the

petitioners, to an affidavit dated 24.2.2012 filed by Shri Praveen Kumar

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Rai, Advocate. The said Shri Praveen Kumar Rai, in his affidavit, interalia

deposed, that on 25.1.2011, the Special Judicial Magistrate (CBI)

Ghaziabad, had noticed the sensitivity of the case and had, by invoking the

court's inherent power under Section 327 of the Code of Criminal

Procedure, directed, that no person would be allowed to enter the court-

room except the parties to the case or their respective counsel; yet during

the course of hearing on 4.2.2012, a lot of media-persons and advocates

unrelated to the case, were present inside the court-room. While dilating

on the court proceedings conducted on 4.2.2012, without disclosing the

identity of any particular counsel/advocate, it was averred in paragraphs 5

and 6 (of the affidavit dated 24.2.2012) as under:-

"5. That one of the advocates, who on earlier occasion has been

rebuked by the Ld. Magistrate and certain strictures have also

been passed against him as well, was also present in the

Court room. It is pertinent to mention here that on 7.1.2011

the said counsel had filed an application and thereafter during

the course of arguments on the said application misbehaved

with the Court and others therein. The Ld. Magistrate in her

order dated 21.1.2011 while dismissing the application

disapproved the behaviour of the counsel and passed

strictures after warning him for future. However, the said

warning and strictures have not affected him at all. He not

only interfered in the case, but also attempted to stop the

counsels for the petitioner herein from advancing their

submissions. The deponent immediately brought this to the

notice of the Ld. Magistrate but to no avail and the

interruptions continued in the proceedings. It is germane to

state that the concerned advocate does not represent either

the prosecution or the accused persons and thus, no privilege

of hearing can be extended to the concerned advocate. A true

translated copy of the order dated 21.1.2011 is annexed

herewith and marked as Annexure A-2.

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6. That faced with such a perilous situation the counsels did not

have any option but to file an application before the Ld.

Magistrate for taking appropriate actions and passing

necessary directions in the matter. The said application is still

pending. A photocopy of certified copy of the said application

dated 4.2.2012 is annexed herewith and marked as Annexure

A-3."

It is also necessary to extract hereunder the application dated 4.2.2012

(appended as Annexure A-3 to the affidavit dated 24.2.2012) of Shri

Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar:-

"Sir,

It is most respectfully submitted that in the above noted case

the applicants counsels appear before the Hon'ble Court today

to move application in the light of order passed by Hon'ble

Supreme Court in Transfer Petition. The counsel for

applicants were restrained by some other Advocates who

have no concern with the case during the course of their

submission. This happened even when, the order passed by

Hon'ble Court dated 25.1.2011 U/s 327 Cr.P.C. is still in force.

It is, therefore, most humbly prayed that in the above

said reason and in the interest of justice Hon'ble Court may

kindly restrained the persons and advocates who have no

concerned in the case by entering in the Court room during

the hearing of the case."

Based on the aforesaid factual position it is contended that the petitioners

have strong reservations whether unimpaired proceedings are at all

possible in the case in hand. It is therefore contended, that it would be in

the fitness of the matter, to transfer proceedings in the case, from

Ghaziabad to Delhi/New Delhi

9. We have recorded hereinabove the four different grounds under

which the petitioners have sought to press their claim for transfer of the

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proceedings pending before the court of the Special Judicial Magistrate

(CBI), Ghaziabad, U.P., to a court of competent jurisdiction at Delhi/New

Delhi. It would be appropriate and in the fitness of matters to first record

the response of the learned Senior Counsel representing the CBI to each

of the issues. The submissions of the learned counsel representing the

respondents are therefore being summarized hereinafter:-

10. As noticed in paragraph 5 hereinabove, the foremost contention

seeking transfer of proceedings from Ghaziabad to Delhi/New Delhi is

based on the inconvenience of the petitioners to travel from New Delhi to

Ghaziabad on each date of hearing. In so far as the instant aspect of the

matter is concerned, it was the contention of the learned counsel for the

respondents, that shifting of the residence of an accused cannot be a valid

justification for seeking transfer, nor is the place where the first information

report was registered by the CBI relevant for the said purpose. It is

submitted that the identity of the jurisdictional court is determined on the

basis of the provisions of the Code of Criminal Procedure, wherein

residence of the accused and the place of registration of the first

information report are inconsequential. In so far as the inconvenience

alleged by the petitioners to travel to Ghaziabad is concerned, it was

brought to our notice that 72 of the witness likely to be produced during the

course of the prosecution under reference, are located in the State of Uttar

Pradesh, whereas, 61 witnesses are from Delhi or from outside U.P. Of

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the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees

of the Central Forensic Science Laboratory or the All India Institute of

Medical Sciences, New Delhi; 6 witnesses are from telephone companies,

20 witnesses have been examined earlier out of which some are relations

of the petitioners themselves; and of the remaining two witnesses one is

from Punjab and the other is from Haryana. It is also submitted, that none

of the 61 witnesses, to be produced from Delhi or from outside U.P., have

expressed inconvenience to depose before the Special Judicial Magistrate

(CBI), Ghaziabad, U.P. It is contended, that the distance between Noida

and Ghaziabad, as also, between Noida and Delhi depicted in the

submissions advanced by the learned counsel for the petitioners are

irrelevant. It is submitted, that the issue of jurisdiction is never determined

on the basis of distance(s), but is based on the territorial jurisdiction of the

court within which an offence has been committed. It is submitted that Dr.

Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending court

proceedings at Ghaziabad since 2008, i.e., for the last about three years.

It is pointed out, that neither of the petitioners ever expressed

inconvenience to participate in the court proceedings at Ghaziabad hitherto

before. However, all these pleas are being raised only after the Special

Judicial Magistrate (CBI), Ghaziabad, U.P., by his/her order dated

9.2.2011 had summoned the petitioners to face trial under Section 302

read with Section 34 of the Indian Penal Code, and Section 201 read with

16 Section 34 of the Indian Penal Code, in connection with the murder of

Arushi Talwar. It is accordingly submitted that the plea raised by the

petitioners for transfer of proceedings on the basis of inconvenience, is

wholly trumped up and ought to be rejected.

11. In so far as the second issue canvassed at the hands of the

petitioners on the ground of personal security is concerned (see paragraph

6 hereinabove), learned Senior Counsel representing the respondents

invited our attention to the counter affidavit filed on behalf of the

respondent-CBI, wherein, while repudiating the contention advanced at the

hands of the petitioners, it has been pointed out that the attack on Dr.

Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011 was at the

hands of a psychologically disturbed person hailing from Varanasi, who

had come to Ghaziabad from Ahmedabad (in Gujarat). It is therefore the

contention of the learned counsel for the respondents, that the attack was

not aimed at interfering with the petitioners right to defend themselves, but

because of mental imbalance of the attacker. It is submitted, that the

same person Utsav Sharma had also attacked DGP Rathore in a court-

premises at Chandigarh, prior to having attacked Dr. Rajesh Talwar. It is

therefore contended, that the physical attack on Dr. Rajesh Talwar was

certainly not aimed at disrupting court-proceedings or interfering with the

defence of the petitioners. As such, it is submitted that the aforesaid stray

incident cannot be a justifiable basis for seeking transfer of proceedings

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under Section 406 Cr.P.C. from the court of the Special Judicial Magistrate

(CBI), Ghaziabad, U.P. to some other court of competent jurisdiction in

Delhi/New Delhi. Learned counsel representing the respondents also

pointed out, from the counter affidavit filed by the CBI, that the Sessions

Judge, Ghaziabad had personally reviewed the security arrangements in

the entire court-premises at Ghaziabad, whereupon, security/police

personnel have been deployed to prevent any similar untoward incident in

future. It was also brought to our notice, from the counter affidavit filed by

the CBI, that the venue of the proceedings relating to the petitioners, has

been shifted to a new building, which has a proper boundary wall on all

sides, with only one small entrance. The counter affidavit also records an

assurance, that as and when the case of the petitioners will be fixed for

hearing, proper police force will be deployed by the local administration, to

ensure safety and security of the petitioners. It is therefore the contention

of the learned Senior Counsel representing the CBI, duly supported by the

learned counsel for the State of Uttar Pradesh, that all possible care will be

taken, for the safety and welfare of the petitioners.

12. Even though learned counsel representing the petitioners did not

canvass the third ground (see paragraph 7 hereinabove) during the course

of hearing, yet learned counsel for the respondents had expressly drawn

our attention to the same. The purpose of inviting our attention to the third

ground was to demonstrate, that the petitioners have not even spared the

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presiding officer of the court. The petitioners have cast aspersions on the

court itself. It has been averred in the pleadings, that the petitioners are

not likely to get justice from the Ghaziabad court, because the Special

Judicial Magistrate (CBI), Ghaziabad, U.P. by his/her order dated

28.2.2011 had declined the prayer made by the petitioners for exempting

them from personal appearance, and since the petitioners had not

appeared on 28.2.2011, the court had issued bailable warrants against the

petitioners. This, according to the learned Senior Counsel representing

the respondents, can never constitute a valid basis for drawing any

inference against a court, specially when the challenge raised by the

petitioners in assailing the order dated 28.2.2011 (declining exemption

from personal appearance, and ordering issuance of bailable warrants),

before the High Court of Judicature at Allahabad was rejected. In fact, it is

the contention of the learned Senior Counsel for the respondents, that the

insinuation levelled on behalf of the petitioners is contemptuous in nature,

and calls for initiation of proceedings against the petitioners under the

Contempt of Courts Act, 1971. Based on all the submissions recorded

hereinabove, it was the contention of the learned counsel for the

respondents, that even the third ground raised by the petitioners for

seeking transfer of proceedings under Section 406 of the Code of Criminal

Procedure, cannot be accepted.

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13. In so far as the last contention is concerned (see paragraph 8

hereinabove), the same was based on the affidavit of Shri Praveen Kumar

Rai, Advocate, dated 24.2.2012. It was submitted at the hands of the

learned counsel for the respondents, that there was no occasion for the

respondents to repudiate the same, as the factual position depicted therein

does not emerge from the pleadings of the transfer petitions filed by the

two petitioners. It is therefore the contention of the learned counsel for the

respondents, that the petitioners should not be permitted to press the

instant ground for seeking transfer. Be that as it may, it is further the

contention of the learned Senior Counsel representing the respondents,

that the allegations contained in the affidavit dated 24.2.2012 are vague,

as the identity of the counsel who attempted to stop the counsel

representing the petitioners from advancing their submission, has not been

disclosed. In the application allegedly filed on 4.2.2012 (appended as

Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the

counsel who restrained the counsel representing the petitioners, from

making his submissions has also not been disclosed. Accordingly, it is

asserted that the allegations made in the last submission being vague

cannot be relied upon to accept the prayer of the petitioners for transfer of

proceedings under Section 406 of the Code of Criminal Procedure.

14. We have noticed hereinabove the grounds of challenge canvassed

at the hands of the learned counsel for the petitioners, as also, the

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response thereto at the hands of the learned counsel representing the

respondents. In so far as the issue of transfer of criminal proceedings from

one court to another under Section 406 of the Code of Criminal Procedure

is concerned, it would be in the fitness of matters to examine the

parameters laid down by this Court for transfer of proceedings. In this

behalf reference may, first of all, be made to the decision rendered in Sri

Jayendra Saraswathy Swamigal (II), Tamil Nadu v. State of Tamil Nadu,

(2005) 8 SCC 771, wherein in paragraph 5, this court recorded the

grounds on which transfer was sought and thereafter, recorded its own

determination in paragraph 23. Accordingly, paragraphs 5 and 23 of the

judgment are being extracted hereunder:

"5. The transfer of the case has been sought on several grounds and

basically speaking they are as under:

(i) The State machinery in Tamil Nadu and specially the Special

Investigation Team headed by Shri Prem Kumar, Superintendent of

Police, has shown great zeal and has made extraordinary efforts,

much beyond what is required under the law to anyhow secure the

conviction of the accused and to achieve that object has procured

and fabricated false evidence.

(ii) The Chief Minister of the State of Tamil Nadu, who is also holding

the Home portfolio, has made statements on the floor of the House

that the petitioner and the other co-accused are actually involved in

the murder of Sankararaman and has also given some press

statements and has thereby pre-empted a fair decision in the

criminal trial, as statements of persons holding such high offices and

specially those made on the floor of the House, are generally

believed to be correct and thus the accused stand condemned even

before the commencement of the trial.

(iii) A solatium of Rs 5 lakhs was paid by the Chief Minister of Tamil

Nadu to Padma Sankararaman (widow of deceased Sankararaman)

on 24-11-2004, long before completion of investigation and

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submission of charge-sheet, and this was given wide publicity in the

electronic media and newspapers, etc., which shows that the State

Government is taking special interest in the case and is too keen to

secure conviction of the accused in order to justify the stand taken

by it.

(iv) Concocted and false cases have been registered against 16 co-

accused. Even before their bail applications in the present case

could be heard, detention orders were passed against them under

the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,

Drug Offenders, Forest Offenders, Goondas, Immoral Traffic

Offenders, Slum Grabbers and Video Pirates Act, 1982 (for short

"the Goondas Act") between 16-1-2005 and 6-2-2005 so that even

after grant of bail by the Court they may remain in custody.

(v) The advocates appearing for the petitioner and other co-accused

have been put under great threat on account of lodging of false and

fabricated criminal cases against them and a situation has been

created wherein they may not be in a position to defend the accused

properly. This will also have a general effect as other lawyers would

feel hesitant to conduct the case on behalf of the accused.

(vi) The Mutt and other associated and connected trusts have 183

accounts in banks, which were all frozen by SIT resulting in

paralysing the religious and other activities of the Mutt and other

connected bodies.

(vii) Criminal cases have been lodged against some leading

journalists of the country and other prominent personalities, who had

written articles criticising the arrest of the petitioner, which not only

violates right of free speech but also creates an atmosphere of

threat against anyone daring to speak or write in favour of the

accused and thus the accused seriously apprehend that they would

not get a fair trial in the State of Tamil Nadu.

(viii) Shri Prem Kumar, who is heading the Special Investigation

Team, is not a fair and upright officer and superior courts have

passed strictures against him several times in the past for his

uncalled-for actions in going out of the way to implicate innocent

persons in criminal cases.

23. We have discussed above many facets of the case which do

show that the State machinery in Tamil Nadu is not only taking an

undue interest but is going to any extent in securing the conviction of

the accused by any means and to stifle even publication of any

article or expression of dissent in the media or press, interview by

journalists or persons who have held high positions in public life and

22

are wholly unconnected with the criminal case. The affidavits and

the documents placed on record conclusively establish that a

serious attempt has been made by the State machinery to launch

criminal prosecution against lawyers, who may be even remotely

connected with the defence of the accused. The Superintendent of

Police, SIT and the Police Inspector connected with the investigation

even went to the extent of prompting the approver Ravi

Subramaniam to make insinuation against a very Senior Counsel,

who has been practising for over 43 years and is appearing as

counsel for the petitioner. The other counsel had to file writ petitions

in the Madras High Court for seeking a direction for transferring

investigation of the criminal cases registered against them from the

local police to CBI. The police submitted charge-sheet against two

junior lady lawyers under various sections of IPC including Section

201 IPC when even accepting every word in the FIR lodged by Smt

Chitra, wife of Ravi Subramaniam (approver) as correct, no offence

under the said provision is made out. Clause (1) of Article 22, which

finds place in Part III of the Constitution dealing with fundamental

rights, gives a guarantee to a person arrested and detained to be

defended by a legal practitioner of his choice. Section 303 of the

Code of Criminal Procedure says that any person accused of an

offence before a criminal court or against whom proceedings are

instituted under the Code, may of right be defended by a pleader of

his choice. Even under the British rule when the Code of Criminal

Procedure, 1898 was enacted, Section 340(1) thereof gave a similar

right to an accused. It is elementary that if a lawyer whom the

accused has engaged for his defence is put under a threat of

criminal prosecution, he can hardly discharge his professional duty

of defending his client in a fearless manner. A senior and respected

counsel is bound to get unnerved if an insinuation is made against

him in court that he approached the wife of a witness for not giving

evidence against the accused in the court. From the material placed

before us we are prima facie satisfied that a situation has arisen in

the present case wherein the lawyers engaged by the petitioner and

other co-accused cannot perform their professional duty in a proper

and dignified manner on account of various hurdles created by the

State machinery. The lawyers would be more concerned with

shielding their own reputation or their liberty rather than cross-

examining the prosecution witnesses for eliciting the truth. The

constant fear of not causing any annoyance to the prosecution

witnesses specially those of the Police Department would loom large

over their mind vitally affecting the defence of the accused. Passing

of the detention order against 16 co-accused soon after grant of bail

23

to the petitioner by this Court on 10-1-2005, which order could be of

some support in seeking parity or otherwise for securing bail in the

present murder case, is a clear pointer to the fact that the State

wanted to deprive them of any chance to secure release from

custody. Even though this Court has issued notice on the special

leave petition filed by the State against the order of the High Court

by which habeas corpus petition of the 16 co-accused was allowed,

yet the observations made in the said order show in unmistakable

terms that the even tempo of life was not disturbed, nor was public

order affected by the murder of Sankararaman and the detention

order was passed without any basis. Again, the action of the State in

directing the banks to freeze all the 183 accounts of the Mutt in the

purported exercise of the power conferred under Section 102 CrPC,

which had affected the entire activities of the Mutt and other

associated trusts and endowments only on the ground that the

petitioner, who is the head of the Mutt, has been charge-sheeted for

entering into a conspiracy to murder Sankararaman, leads to an

inference that the State machinery is not only interested in securing

conviction of the petitioner and the other co-accused but also to

bring to a complete halt the entire religious and other activities of the

various trusts and endowments and the performance of pooja and

other rituals in the temples and religious places in accordance with

the custom and traditions and thereby create a fear psychosis in the

minds of the people. This may deter anyone from appearing in court

and give evidence in defence of the accused. Launching of

prosecution against prominent persons who have held high political

offices and prominent journalists merely because they expressed

some dissent against the arrest of the petitioner shows the attitude

of the State that it cannot tolerate any kind of dissent, which is the

most cherished right in a democracy guaranteed by Article 19 of the

Constitution." (emphasis is ours)

Reference may also be made to the decision rendered by this Court in

Central Bureau of Investigation (CBI) v. Hopeson Ningshen, (2010) 5 SCC

115, wherein this Court recorded its conclusion in the following

paragraphs:

"18. CBI in its capacity as the investigating agency has clearly

conveyed the risks associated with conducting the trial in Manipur.

24

Even if one were to concede that the apprehension about social unrest

and communal tension between the Meteies and the Nagas were a little

exaggerated, there can be no quarrel that there exists a real possibility

of a physical attack on the respondent-accused as long as he is in

Manipur. It was precisely because of this consideration that the

respondent-accused is being held in custody at a distant location in

Delhi. Furthermore, conducting the trial in Manipur could also

reasonably lead to more friction in the State of Manipur which in turn

could affect the trial proceedings themselves.

19. We must especially take note of the fact that the killings took place

in a region where opinions are sharply divided on the justness of the

causes espoused by NSCN(IM) and that the respondent-accused is a

member of the same organisation. This creates a risk of intimidation of

the witnesses as well as undue prejudice seeping into the minds of

those who may be involved in the legal proceedings in different

capacities.

20. In this scenario, in our considered view it would be expedient in the

ends of justice to conduct the trial in Delhi. We accordingly direct that

the impugned cases be transferred from the Court of the Chief Judicial

Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a

judicial officer of the rank of a Sessions Judge) in New Delhi."

(emphasis is ours)

The scope of jurisdiction under Section 406 of the Code of Criminal

Procedure was also considered by this Court in Surendra Pratap Singh v.

State of Uttar Pradesh, (2010) 9 SCC 475, wherein this Court held as

under:

14. Mr Gupta submitted that except for wild allegations made against

the investigating authorities and the officials of the State Government,

nothing substantial has been disclosed from the submissions made on

behalf of the petitioner which would indicate that either the investigating

agencies or the prosecuting agency was in any way biased in favour of

Respondent 2. On the other hand, upon a fair investigation undertaken

by two separate agencies, which included CB CID, it had been found

that Respondent 2 was not in any way connected with the alleged

incident of 24-6-2005. In fact, at the relevant time, the party to which he

25

belonged was not in power which would enable him to influence the

course of investigation. Mr. Gupta submitted that no interference was

called for with the investigation reports submitted both by the local

police as also by CB CID, and the transfer petition was, therefore, liable

to be dismissed.

15. We have carefully considered the submissions made on behalf of

the respective parties. While the arrest of Respondent 2 may have been

stayed by the High Court, the circumstances in which the incident had

occurred on 24-6-2005 coupled with the fact that Respondent 2 was

returned as an MLA in the same elections, does to some extent justify

the apprehension of the petitioner that the perspective of the

prosecution may become polluted. There is no getting away from the

fact that Respondent 2 is an MLA and that too belonging to the present

dispensation. Since justice must not only be done but must also seem

to be done, this case, in our view, is an example where the said

idiomatic expression is relevant.

16. It would not be proper on our part to dilate on this question further

during the pendency of the trial. We are, however, of the view that in

order to do fair justice to all the parties, the trial should be held outside

the State of Uttar Pradesh and, accordingly, we allow the transfer

petition and direct that the matter be transferred to the High Court of

Madhya Pradesh which shall decide the place and the court before

which the trial may be conducted." (emphasis is ours)

The issue in hand was also examined by this Court in Nahar Singh Yadav

v. Union of India, (2011) 1 SCC 307. Relevant extract including the

parameters delineated by this Court which ought to be kept in mind while

considering an application for transfer and the consideration of the factual

matrix involved in the controversy dealt with are being extracted

hereunder:

"21. Reverting to the main issue, a true and fair trial is sine qua non

of Article 21 of the Constitution, which declares that:

26

"21. Protection of life and personal liberty.--No person shall be

deprived of his `life' or `personal liberty' except according to

procedure established by law."

It needs no emphasis that a criminal trial, which may result in

depriving a person of not only his personal liberty but also his life

has to be unbiased, and without any prejudice for or against the

accused. An impartial and uninfluenced trial is the fundamental

requirement of a fair trial, the first and the foremost imperative of the

criminal justice delivery system. If a criminal trial is not free and fair,

the criminal justice system would undoubtedly be at stake, eroding

the confidence of a common man in the system, which would not

augur well for the society at large. Therefore, as and when it is

shown that the public confidence in the fairness of a particular trial is

likely to be seriously undermined, for any reason whatsoever,

Section 406 CrPC empowers 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, to meet the ends of justice.

22. It is, however, the trite law that power under Section 406 CrPC

has to be construed strictly and is to be exercised sparingly and with

great circumspection. It needs little emphasis that a prayer for

transfer should be allowed only when there is a well-substantiated

apprehension that justice will not be dispensed impartially,

objectively and without any bias. In the absence of any material

demonstrating such apprehension, this Court will not entertain

application for transfer of a trial, as any transfer of trial from one

State to another implicitly reflects upon the credibility of not only the

entire State judiciary but also the prosecuting agency, which would

include the Public Prosecutors as well.

XXX XXX XXX XXX

29. Thus, although no rigid and inflexible rule or test could be laid

down to decide whether or not power under Section 406 CrPC

should be exercised, it is manifest from a bare reading of sub-

sections (2) and (3) of the said section and on an analysis of the

decisions of this Court that an order of transfer of trial is not to be

passed as a matter of routine or merely because an interested party

has expressed some apprehension about the proper conduct of a

trial. This power has to be exercised cautiously and in exceptional

27

situations, where it becomes necessary to do so to provide credibility

to the trial. Some of the broad factors which could be kept in mind

while considering an application for transfer of the trial are:

(i) when it appears that the State machinery or prosecution is

acting hand in glove with the accused, and there is likelihood of

miscarriage of justice due to the lackadaisical attitude of the

prosecution;

(ii) when there is material to show that the accused may

influence the prosecution witnesses or cause physical harm to

the complainant;

(iii) comparative inconvenience and hardships likely to be

caused to the accused, the complainant/the prosecution and the

witnesses, besides the burden to be borne by the State

exchequer in making payment of travelling and other expenses of

the official and non-official witnesses;

(iv) a communally surcharged atmosphere, indicating some

proof of inability of holding fair and impartial trial because of the

accusations made and the nature of the crime committed by the

accused; and

(v) existence of some material from which it can be inferred

that some persons are so hostile that they are interfering or are

likely to interfere either directly or indirectly with the course of

justice.

30. Having considered the rival claims of both the parties on the

touchstone of the aforestated broad parameters, we are of the view

that the apprehension entertained by CBI that the trial of the case at

Ghaziabad may not be fair, resulting in miscarriage of justice, is

misplaced and cannot be accepted. From the material on record, we

are unable to draw any inference of a reasonable apprehension of

bias nor do we think that an apprehension based on a bald

allegation that since the trial Judge and some of the named accused

had been close associates at some point of time and that some of

the witnesses are judicial officers, the trial at Ghaziabad would be

biased and not fair, undermining the confidence of the public in the

system. While it is true that Judges are human beings, not

automatons, but it is imperative for a judicial officer, in whatever

capacity he may be functioning, that he must act with the belief that

he is not to be guided by any factor other than to ensure that he

shall render a free and fair decision, which according to his

conscience is the right one on the basis of materials placed before

him. There is no exception to this imperative. Therefore, we are not

28

disposed to believe that either the witnesses or the Special Judge

will get influenced in favour of the accused merely because some of

them happen to be their former colleagues. As already stated,

acceptance of such allegation, without something more substantial,

seriously undermines the credibility and the independence of the

entire judiciary of a State. Accordingly, we outrightly reject this

ground urged in support of the prayer for transfer of the trial from

Ghaziabad.

31. As regards the plea that the Court of Special Judge, CBI,

Ghaziabad is already heavily overburdened, in our opinion, that is

again not a ground for transfer of trial. If at all the said court is

overburdened, it will be open to the High Court to request the State

Government to create another court of a Special Judge at

Ghaziabad and we are confident that having regard to the nature of

the case and the serious concern already shown by the State

Government by issuing Notification dated 10-9-2008 promptly and

expeditiously, the State Government will take appropriate steps in

that behalf so that the guilty are brought to book at the earliest not

only in this case but in other sensitive trials, stated to be pending in

that court, as well.

32. For the aforestated reasons, as at present, we do not find any

merit in the request of CBI for transfer of the trial from Ghaziabad to

any other place. Accordingly, the prayer is declined. The trial court is

directed to proceed with the case expeditiously."

(emphasis is ours)

The issue of transfer of proceedings under Section 406 of the Code of

Criminal Procedure was examined by this Court in Vikas Kumar

Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178, wherein this Court

observed as under:

"23. It is true that there must be reasonable apprehension on the

part of the party to a case that justice may not be done and mere

allegation that there is apprehension that justice will not be done

cannot be the basis for transfer. However, there is no manner of

doubt that the reasonable apprehension that there would be failure

29

of justice and acquittal of the accused only because the witnesses

are threatened is made out by the petitioner.

24. This Court, on various occasions, had opportunity to discuss the

importance of fair trial in criminal justice system and various

circumstances in which a trial can be transferred to dispense fair and

impartial justice. It would be advantageous to notice a few decisions

of this Court with regard to the scope of Section 406 of the Code of

Criminal Procedure.

XXX XXX XXX XXX

29. From the averments made in the petition it is evident that the

accused belong to a powerful gang operating in U.P. from which the

State of Uttarakhand is carved out. The petitioner has been able to

show the circumstances from which it can be reasonably inferred

that it has become difficult for the witnesses to safely depose truth

because of fear of being haunted by those against whom they have

to depose. The reluctance of the witnesses to go to the court at

Haridwar in spite of receipt of repeated summons is bound to

hamper the course of justice. If such a situation is permitted to

continue, it will pave way for anarchy, oppression, etc., resulting in

breakdown of criminal justice system. In order to see that the

incapacitation of the eyewitnesses is removed and justice triumphs,

it has become necessary to grant the relief claimed in the instant

petition. On the facts and in the circumstances of the case this Court

is of the opinion that interest of justice would be served if transfer of

the case from Haridwar to Delhi is ordered."

(emphasis

is ours)

Last of all reference may be made to the decision rendered by this Court in

Jahid Shaikh v. State of Gujarat, (2011) 7 SCC 762. The observations

made by this Court with reference to Section 406 of the Code of Criminal

Procedure, are placed below:

"39. 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

30

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 CrPC and Order 36 of the Supreme

Court Rules, 1966 for the same reliefs.

40. 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.

41. 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

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.

42. 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 it open to the petitioners

that in the event the apprehension of the petitioners is proved to be

real during the course of the trial, they will be entitled to move afresh

31

before this Court for the relief sought for in the present transfer

petition." (emphasis is ours)

It is in light of the parameters recorded by this Court that we shall

endeavour to determine the veracity of the prayer made by the petitioners

for transfer of proceedings from the court of the Special Judicial Magistrate

(CBI), Ghaziabad, U.P., to a court of competent jurisdiction in Delhi/New

Delhi.

15. First and foremost we shall deal with the ground of inconvenience

raised by the petitioners for seeking transfer of proceedings. In so far as

the instant issue is concerned, besides the judgments referred to

hereinabove, reference may be made to the decision rendered in Bhairu

Ram v. Central Bureau of Investigation, (2010) 7 SCC 799, wherein the

issue of inconvenience was considered, and this Court held as under:

"10. 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.

11. Mr H.P. Raval, learned Additional Solicitor General, after taking

us through specific averments made in the counter-affidavit filed on

behalf of Respondents 1 and 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 Greater Mumbai has ample jurisdiction to try

this case because various movable properties have been found in

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

Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and

32

this is the period during which most of the properties were allegedly

acquired by him and his family members.

12. 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 29-9-2005 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 3, during the check period i.e. 1-4-

1993 to 4-10-2005, acquired assets disproportionate to his known

sources of income to the extent of Rs 1,39,39,025.

13. The petitioners have been charge-sheeted for commission of

offences under Section 109 read with Section 193 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

Respondents 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 3. It further reveals that the petitioners

entered into false transactions with Respondent 3 showing receipt of

cash amounts against alleged purchase of immovable properties

from him. The stamp papers were purchased against (sic after)

registration of case and false agreements to sell were prepared in

connivance with each other.

14. 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 must be shown that the trial in the chosen

forum will result in failure of justice.

15. 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,

33

the main accused, Respondents 3 and 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." (emphasis is

ours)

The ground of inconvenience for transfer again came up for consideration

before this Court in Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803,

wherein the Court observed as follows:

"5. It is true that in cases of dissolution of marriage, restitution of

conjugal rights or maintenance, this Court shows much indulgence

to the wife and ordinarily transfers the case to a place where it would

be more convenient for the wife to prosecute the proceedings. But a

criminal case is on a somewhat different footing. The accused may

not be able to attend the court proceedings at Indore for many

reasons, one of which may be financial constraints, but the

consequences of non-appearance of the accused before the Indore

Court would be quite drastic.

6. Having regard to the consequences of non-appearance of the

accused in a criminal trial, we are loath to entertain the petitioner's

prayer for transfer. In a criminal proceeding, the right of the accused

to a fair trial and a proper opportunity to defend himself cannot be

ignored for the convenience of the complainant simply because she

happens to be the estranged wife." (emphasis is ours)

From the two judgments, referred to hereinabove, it clearly emerges that

inconvenience cannot be a valid basis for transfer of "criminal proceedings"

from one court to another under Section 406 of the Code of Criminal

Procedure. Be that as it may, we are of the view that the instant

contention advanced at the hands of the learned counsel for the petitioner

is wholly frivolous. According to the factual position depicted by the

learned counsel for the petitioners themselves, the distance between

34

Noida and Ghaziabad is 35 kms. whereas the distance between Noida and

Delhi is 17 kms. Based on a simple mathematical conclusion the distance

between Delhi and Ghaziabad must be approximately 52 kms.

(35+17=52). It is ununderstandable how a plea of inconvenience can be

based to avoid travelling a distance of merely 52 kms. Even if it is

assumed that a couple of hours would be consumed for travelling to and

fro (from Delhi to Ghaziabad and back) the inconvenience would not be

such as can be the basis for seeking transfer. Jurisdiction of a court to

conduct criminal prosecution is based on the provisions of Code of

Criminal Procedure. Often either the complainant or the accused have to

travel across an entire State to attend to criminal proceedings, before a

jurisdictional court. In some cases to reach the venue of the trial court, a

complainant or an accused may have to travel across several States.

Likewise, witnesses too may also have to travel long distances, in order to

depose before the jurisdictional court. If the plea of inconvenience for

transferring the cases from one court to another, on the basis of time taken

to travel to the court conducting the criminal trial is accepted, the

provisions contained in the Criminal Procedure Code earmarking the

courts having jurisdiction to try cases would be rendered meaningless.

Convenience or inconvenience are inconsequential so far as the mandate

of law is concerned. The instant plea therefore, deserves outright

rejection.

35

16. In so far as the second contention advanced at the hands of the

counsel for the petitioner is concerned, transfer has been sought on the

issue of threatened personal security. The petitioners believed that their

personal security is at risk on account of a vicious attack with a cleaver's

knife on Dr. Rajesh Talwar, which resulted in his having suffered grievous

injuries not only on his face but on both his hands as well. The injuries are

stated to have rendered Dr. Rajesh Talwar handicapped for more than two

months. The aforesaid incident has allegedly had the effect of making

both the petitioners scared to attend any court-proceedings at the

Ghaziabad court-complex. The case set up by the petitioners is, that the

incident in question has completely shaken the confidence of the

petitioners, and that, it is unsafe for the petitioners to appear before the

Special Judicial Magistrate (CBI), Ghaziabad, U.P. to defend themselves.

Whilst we are of the view that all preventive measures should have been in

place to avoid any assault of the nature which Dr.Rajesh Talwar

encountered on 25.1.2011, we appreciate the impossibility of the aforesaid

task specially when the attacker is a person suffering from a mental

disability. Such an attack cannot be deemed to have been aimed at

disabling the petitioners to defend themselves. The physical assault

suffered by the petitioner was clearly unrelated to their court-proceedings.

In the aforesaid view of the matter, the incident relied upon by the learned

counsel for the petitioners to seek transfer of proceedings by invoking

36 Section 406 of the Code of Criminal Procedure, is clearly misconceived.

Even otherwise, the counter affidavit filed on behalf of the CBI is

categorical on the issue in hand, to the effect that the Sessions Judge,

Ghaziabad, has personally reviewed the security system in the entire

court-premises, security/police personnel have been deployed so that no

untoward incident occurs in future. Additionally, the venue of the court-

proceedings of the petitioners has been shifted to a new building which

has proper boundary walls on all sides, with only one small entrance. The

building where the petitioners are required to attend the court proceedings

is therefore totally safe. In the counter affidavit filed by the CBI it has been

expressed, that whenever the case of the petitioners' is to be heard,

adequate police force would be deployed by the local administration. The

aforesaid undertaking (expressed in the counter affidavit, filed on behalf of

the CBI has been endorsed by the learned counsel representing the State

of Uttar Pradesh. Even though it has been pointed out that the petitioners

have not moved any application either to the Special Judicial Magistrate

(CBI), Ghaziabad, U.P. or to the police for seeking protection; we are

assured, if such a request is made at the hands of the petitioners, the

same will be duly considered in accordance with law. We have extracted

a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar

Rai, Advocate in paragraph 8 hereinabove. While perusing the aforesaid

affidavit we noticed reference therein to an order dated 25.1.2011 passed

37

in respect of the proceedings pending before the Special Judicial

Magistrate (CBI), Ghaziabad, U.P. While dealing with the contention in

hand, it is necessary to place on record the aforesaid order dated

25.1.2011, the same is accordingly being extracted hereunder:-

"Under the circumstances seeing the sensitivity of the case, by

invoking inherent provisions under section 327 Cr.P.C. the court

feels it in the interest of justice that during the proceedings of the

instant case no person shall be allowed to enter in the courtroom

except for the parties to the case and their respective counsels.

Sd/-

Special Judicial Magistrate

(CBI),Ghaziabad"

The aforesaid order reveals the seriousness of the presiding officer

concerned. So as to ensure not only the safety of the petitioners but also

a free and fair trial, keeping in mind the sensitive nature of the case, an

appropriate order has already been passed by the presiding officer. We

have no doubt in our mind, that the order dated 25.1.2011 shall be

enforced in letter and in spirit. In case of breach thereof we would expect

the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate

steps including coercive measures if necessary, to enforce the same. The

majesty of law must be maintained at all costs. In the background of the

aforesaid developments, we are of the view that the proceedings being

conducted at the court-complex at Ghaziabad, cannot be termed as

unsafe, so as to be considered as threatening the personal security of the

petitioners. As such, we find no merit in the prayer for transfer of

38

proceedings from Ghaziabad to Delhi/New Delhi even on the ground of

personal security.

17. The third ground raised by the petitioners, noticed in paragraph 7

hereinabove, needs no adjudication at our hands on account of the fact

that the same was not pressed by the learned counsel representing the

petitioners during the course of hearing. The details depicting the third

ground have been noticed only because the learned Senior Counsel

representing the respondents insisted on inviting our attention to the fact

that the petitioners had expressed baseless insinuations against the

presiding officer of the court. Based on certain insinuations the petitioners

had asserted, that they were not likely to get justice, as the concerned

court was proceeding in the matter with a pre-determined mind. The

insinuations levelled by the petitioners are based on an order passed by

the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011.

Learned counsel for the petitioners advisedly refrained from pressing the

instant ground during the course of hearing. Even raising such a ground in

the pleadings, to state the least, can certainly be termed as most

irresponsible. The impertinence of the petitioners in the instant case, is

magnified manifold because the order dated 28.2.2011 was assailed by

the petitioners before the High Court of Judicature at Allahabad, but the

challenge failed. In this view of the matter, the insinuations can also be

stated to have been aimed even at the High Court. Although we could

39

have initiated action against the petitioners, yet in the peculiar facts and

circumstances of this case, we refrain ourselves from doing so. However,

we consider it just and appropriate to warn the petitioners from any such

impertinence in future.

18. In so far as the last contention advanced at the hands of the learned

counsel for the petitioners is concerned, the same was based on the

affidavit of Shri Praveen Kumar Rai, Advocate dated 24.2.2012, as also,

an application filed by the said counsel on 4.2.2012 (Annexure A-3 with the

affidavit, independently extracted hereinabove). We find merit in the

contention advanced at the hands of the learned Senior Counsel

representing the respondents, that the application dated 4.2.2012

(Annexure A-3) as also the affidavit of Shri Praveen Kumar Rai, Advocate,

dated 24.2.2012 are vague, and as such, cannot be the basis of a

justifiable claim for supporting a prayer for transfer of proceedings, under

Section 406 of the Code of Criminal Procedure. As pointed out by the

learned counsel for the respondents, even though allegations have been

levelled in the application (dated 4.2.2012) as well as the affidavit (dated

24.2.2012), that the petitioners counsel were prevented from discharging

their responsibility appropriately; neither the application nor the affidavit

disclose what the petitioners counsel were prevent from, as also, the

identity of those responsible. Therefore, the last contention, in our

40

considered view, is also devoid of any merit and as such deserves

rejection.

19. For the reasons stated hereinabove, we find no merit in the Transfer

Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar.

It is not possible in the facts and circumstances of this case for us to

conclude, that the petitioners will be deprived of a free and fair trial at

Ghaziabad. We are also satisfied that there is no well-substantiated

apprehension, that justice will not be dispensed to the petitioners

impartially, objectively and without any bias. It is also not possible for us to

accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the

hands of a psychopath can be a valid basis for transfer of the present

proceedings from Ghaziabad to Delhi/New Delhi. In view of the measures

adopted by the Sessions Judge, the CBI and the State Administration

towards security arrangements in the court-premises generally, and also,

the special arrangements which the respondents have undertaken to

make, with particular reference to the petitioners, we are satisfied that

justice will be dispensed to the petitioners in an atmosphere shorn of any

fear or favour. We have extracted the order passed by the Special

Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in paragraph

16 hereinabove. We wish to reiterate, that the order dated 25.1.2011 shall

be enforced in letter and in spirit. In case of breach thereof we would

expect the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take

41

appropriate steps including coercive measures if necessary, to enforce the

same. The majesty of law must be maintained at all costs. We have no

doubt, that the basis on which the petitioners are seeking transfer of

proceedings are just speculative and unjustified apprehensions based

interalia on vague and non-specific allegations. The instant Transfer

Petitions are accordingly dismissed. We also wish to caution the

petitioners, from making any irresponsible insinuations with reference to

court-proceedings. The proper course would be, to assail before a

superior court, any order which may not be to the satisfaction of the

petitioners, in accordance with law.

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

(B.S. Chauhan)

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

(Jagdish Singh Khehar)

New Delhi;

March 2, 2012