Sunil Saini vs The State Of Haryana

REPORTABLE 2023 INSC 715

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

Transfer Petition(s)(Criminal) No(s).125/2019

SUNIL SAINI & ORS. Petitioner(s)

VERSUS

THE STATE OF HARYANA & ORS. Respondent(s)

J U D G M E N T

(1) The relief sought for in the transfer petition is as

follows:

“(a) Transfer the case bearing S.C. No.285 of 2016 arising out of FIR No.116 dated 22.02.2016 u/S 148, 149, 186, 302, 307, 435, 436, 449, 395, 323, 326 IPC and Section 25 of the Arms Act, 1959, Police Station-Jhajjar, titled “State of Haryana versus Sandeep @ Kala & Anr.”, pending before the Court of Additional Sessions Judge, Jhajjar to the Competent Court in New Delhi.”

(2) The case of the petitioners in a nutshell is that an

agitation was carried out by members of the Jat community in

the State of Haryana in 2016. They sought reservation in

Government jobs and educational institutions. During this

agitation, the members of Jat community vandalized and

committed acts of arson which allegedly caused huge 2

irreparable damage to the petitioners by setting their

houses, godowns and their every belonging on fire.

(3) An allegation is made against an advocate who is

alleged to be very influential and who had remained President

of the Bar. It is alleged that because of this connivance,

2-3 material witnesses have been forced to turn hostile as

well as material documentary evidence has not been placed on

record.

(4) It is their further case that an application was

filed under Section 319 of the Code of Criminal Procedure,

1973 to summon the advocate and his son but their

application was not countersigned by the Public Prosecutor.

The petitioners, therefore, knocked at the door of this Court

by filing this petition to get their case transferred to

another state so that interest of justice is sub-served.

(5) Counter Affidavit as well as an application to file

additional documents have been filed by respondent Nos. 2 &

3. In the application for additional documents, it is sought

to be established that, in fact, the first petitioner before

this Court was examined as PW-2 and he has deposed in his

deposition that he could not identify who the accused are.

PW-15 purported to identify one of the accused. At the

instance of PW-15, an application was filed under Section 319 3

of the Cr.P.C. to summon certain persons (advocate in

question), which has been rejected.

(6) Learned counsel for the petitioners, in fact, would

submit that the order rejecting the application under Section

319 has been upheld by the High Court. The learned counsel

for the petitioners would point out that it is a gross case

where there is a complete break down of the law and order

resulting in gross damage having been caused. It is also

pointed out that two persons lost their lives.

(7) It is their case that there is no chance for the

petitioners getting justice in the Courts in the State of

Haryana, having regard to the pervasive influence of the

community in question. What is more, even the prosecuting

team is not acting in a fair and fearless manner.

(8) As of today, it is brought to our notice that 42

witnesses have been examined. Learned counsel for the

petitioners would point out that at this stage, atleast this

Court may consider directing that an independent and upright

Special Prosecutor be appointed so that the needful is done

and there is no sabotage of the proceedings. He would submit

that a case may exist for recalling witnesses who have

already been examined.

4

(9) Learned counsel appearing on behalf of the first

respondent-State, on the other hand, would point out that the

Public Prosecutor has been appointed on 13.05.2022. He is

the person who has been a Public Prosecutor since 29.03.2003

and conducted nearly 500 cases under Section 302 IPC, two

cases arising out of the agitation and also two other cases

of honour killings. What is more important, it is pointed

out that there are no allegations levelled against the Public

Prosecutor who has been appointed as aforesaid.

(10) Learned counsel for the petitioners have raised

another complaint as well. It is pointed out that on a

regular basis, the petitioners who are witnesses have been

under threats by the other-side. He would submit that

despite a request being made, protection has not been

accorded.

(11) Learned counsel for the first respondent-State, on

the other hand, points out that there is a Witness Protection

Scheme, 2018. A witness who is intimidated will always have

a right to write to the presiding Judge or Public Prosecutor

or the Superintendent of Police of concerned District. Only

one request has been received on the last date of hearing, it

is submitted.

(12) As far as transferring the case out of the State is 5

concerned, we would think that due to the passage of time

and the fact that nearly 42 witnesses have already been

examined, we do not think that, as things stand, the case is

to be transferred.

(13) We must pause here for a moment and however make

these observations:

The State exists on the basis of implied consent of

the Governed. The principal reason for people to come

together under the organization of the state is the

fundamental principle that the State will be in a position to

always protect the lives and properties of the citizens.

This is the fundamental unalterable premise for the creation,

existence and preservation of any civilized State. It is all

the more so, when the State is functioning under a written

constitution which guarantees fundamental rights such as

ours. It is accordingly that rule of law is rightfully

treated as part of the basic structure of the Constitution.

It is the bounden duty of any State to ensure that the lives

of its citizens and other persons are at all times protected.

The same goes for their properties. This is the elementary

function of the State. We are not at this stage called upon

to deal with the duties of the State with the mantle of a

welfare State falling upon it. Even if this indispensable 6

function to constitute a State is not performed, it would be

a lamentable state of affairs.

(14) The principal mechanism for vindicating the rule of

law and upholding the rights of the citizens is the judicial

branch of the State. One of the fundamental methods by which

Rule of law is preserved consists of sanctions of which the

criminal law is the principal branch. The criminal courts

must be allowed to function in a manner by which at the end

of the day the guilty are punished and innocent are

exonerated.

(15) The role of the Public Prosecutor in all of this is

paramount. He is duty bound to always act in a fair manner;

not of course, to secure conviction by hook or crook but at

the same time, it is his duty to fearlessly adduce evidence

so that those who are guilty do not get away scot free.

Unless this is done, it is very likely that the common man

will cease to have faith in the very functioning of the State

itself. It is therefore, integral to the upholding of the

integrity of the State itself that the access to justice

which is also comprehended in the principle that an offence

is committed against the State and the State therefore

prosecutes the offender is always borne in mind.

(16) Every attempt which succeeds at the hands of anyone 7

whereby the efficacy of criminal law is diluted, will remove

the very edifice of the rule of law fatally.

(17) It is, therefore, of the utmost importance that in

the case in hand, the Special Public Prosecutor who has been

appointed will hopefully uphold the highest principles and

play the difficult role so that while the innocent are not

convicted, the guilty do not escape due punishment.

(18) In the facts of this case, noticing that the Special

Public Prosecutor has been appointed only recently and not

being unmindful also of his credentials which have been

brought to our notice, at this stage we are not persuaded to

direct that another person be appointed in his place.

However, this is not to be the end of the destiny of this

case. Accordingly, we dispose of the petition as follows:

(i) It will be open to the petitioners to approach

the Director of Prosecution in case they believe that even

the Special Public Prosecutor appointed is not discharging

his duties in a fair and impartial manner.

(ii) It is thereupon for the Director(Prosecution)

to look into the matter and take appropriate steps. As far as

protection to the witness is concerned, it will be open to

the petitioners to move the presiding Judge or Special Public 8

Prosecutor or the Superintendent of Police of the concerned

District seeking protection in which case needful shall be

done in accordance with law.

(iii) Needless to say that any observation which we

have made in this judgment shall not stand in the way of the

Court taking a decision on the basis of the evidence and on

the basis of law applicable.

The transfer petition is disposed of accordingly.

...........................J (K.M. JOSEPH)

...........................J (B.V. NAGARATHNA)

New Delhi, January 30, 2023 9

ITEM NO.1 COURT NO.3 SECTION XVI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Transfer Petition(s)(Criminal) No(s). 125/2019

SUNIL SAINI & ORS. Petitioner(s)

VERSUS

THE STATE OF HARYANA & ORS. Respondent(s)

(IA No. 21216/2019 - EX-PARTE STAY IA No. 21217/2019 - EXEMPTION FROM FILING O.T.)

Date : 30-01-2023 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE K.M. JOSEPH HON'BLE MRS. JUSTICE B.V. NAGARATHNA

For Petitioner(s) Mr. Abhimanyu Tewari, AOR Mr. Neiketou Rio, Adv.

Ms. Eliza Bar, Adv.

For Respondent(s) Dr. Joseph Aristotle, Adv Mr. Aditya Singh, AOR Mr. Shubham Singh, Adv.

Mr. Rajiv Dalal, Adv.

Mr. Pankaj Yadav, Adv.

Mr. Nikhil Goel, AAG, Haryana Mr. Aniruddha Deshmukh, Adv.

Mr. Adithya K. Roy, Adv.

Mr. Naveen Goel, Adv.

Ms. Monika Gusain, Adv.

UPON hearing the counsel the Court made the following O R D E R

The Transfer Petition is disposed of in terms of signed reportable judgment.

Pending applications, if any, shall stand disposed of.

(INDU MARWAH) (RENU KAPOOR) COURT MASTER (SH) ASSISTANT REGISTRAR

(signed reportable judgment is placed on the file)