Umesh Kumar Sharma vs State Of Uttarakhand

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRL.) NOS. 534-536 OF 2019

Umesh Kumar Sharma Petitioner

Versus

State of Uttarakhand & Ors. Respondents

JUDGMENT

Hrishikesh Roy, J.

1. The present petitions are filed under Section 406

of the Code of Criminal Procedure, 1973 (for short “the

CrPC”) read with Order XXXIX of the Supreme Court Rules

seeking transfer of three criminal cases pending before

different courts in Dehradun to competent courts in Signature Not Verified

Delhi Digitally signed by Anita Malhotra or some other courts outside the State of Date: 2020.10.16 20:20:12 IST Reason:

Uttarakhand.

Page 1 of 20 2. Mr. Kapil Sibal, the learned Senior Counsel submits

that the petitioner apprehends threat to his life and

will be prejudiced in conducting his defense in the

courts at Dehradun. The basic premise for such

apprehension is that on account of his work as an

investigative journalist against the Ruling

dispensation, the State is targeting the petitioner for

vindictive prosecution. It is pointed out that as a

journalist the petitioner has conducted sting

operations against the Chief Minister, his relatives

and associates in the State of Uttarakhand and

therefore he is being targeted for malicious

prosecution within the State. Moreover, besides the

three cases for which transfer is sought, many false

cases are foisted against the petitioner. As such, the

petitioner has a genuine and justifiable apprehension

that justice will not be done if the trials are

conducted in the courts within the State of

Uttarakhand. Therefore, those cases be transferred

Page 2 of 20 either to the courts in Delhi or to any other competent

courts, out of Uttarakhand.

3. Representing the State of Uttarakhand, Ms. Ruchira

Gupta, the learned counsel however submits that the

petitioner has failed to demonstrate how and in what

manner, he will be prejudiced if the trials continue in

the courts at Dehradun. According to her, the effort

of the petitioner is filed only to delay the

proceedings. Since investigation in all three cases

are concluded and charge sheet has been filed, the

apprehension of interference in the cases by the State

administration is contended to be wholly unfounded. The

government counsel then refers to the large number of

witnesses in the cases to point out that all of them

are residents of the State of Uttarakhand and therefore

it will be wholly irrational to transfer the trials

only on the basis of unsubstantiated apprehension by

the accused. Rebutting the contention that the

petitioner’s life is endangered within the State of

Uttarakhand, Ms Ruchira Gupta, the learned government

Page 3 of 20 counsel submits that these petitions are confined to

only three cases whereas the petitioner is accused in

several other cases pending in the State. Moreover, he

has himself filed five PILs in the year 2020 itself in

the High Court of Uttarakhand and this demonstrates

that the petitioner is conducting his affairs without

any impediment. The government advocate then submits

that the transfer of criminal cases should be rare and

exception since it impacts the credibility of the

Courts in Uttarakhand. Ms. Gupta submits that some of

the criminal cases against the petitioner have been

closed and the charges of extortion have been dropped.

This according to the learned government counsel would

clearly demonstrate the unbiased approach of the State

Government and the incorrect and bald allegation made

by the petitioner.

4. Representing the Complainant (Ayush Gaur) in the

FIR No.100/2018, Mr. Arvind Kumar Shukla, learned

counsel points out that his client during his service

with the petitioner learned that the petitioner is

Page 4 of 20 using the cover of journalism to grab property inasmuch

as none of the so-called sting operations carried out

by the petitioner has led to prosecution of anyone in

the State of Uttarakhand. The counsel submits that in

most of the 29 cases pending against the petitioner,

the primary charge is grabbing of property, and

accordingly, the counsel argues that the petitioner has

put forth a non-bonafide plea, in order to delay the

trial against him.

5. Insofar as the FIR No.100/2018 is concerned, the

Complainant’s lawyer points out that although the so

called investigation and sting operations were carried

out, the petitioner never had any intention of actually

exposing corruption in high places. The sting

operations commenced in January 2018, but there was no

attempt made by the petitioner to telecast the video

recordings and only then Complainant realized that the

video footage collected with secret camera will be used

by the petitioner to blackmail people. That is why on

10.8.2018, the Complainant who was one of the team

Page 5 of 20 members under the accused, was constrained to file the

FIR to expose the nefarious design of the petitioner.

The counsel then argues that the petitioner has failed

to indicate as to how the trial would be prejudiced if

they are to be conducted in the courts at Dehradun.

6. Mr. Anupam Lal Das, the learned Counsel appearing

for the co-accused in the FIR No.100/2018, however,

joins the petitioner in seeking transfer of the said

criminal case from the Courts in Uttarakhand.

7. Before proceeding any further, it would be

appropriate to refer to the list of cases pending

against the petitioner. Out of those cases, 17 cases

relate to the State of Uttarakhand, 4 cases are from

the State of Uttar Pradesh, 5 cases relate to the State

of West Bengal, 2 cases are from Delhi out of which one

is under investigation of the CBI, and another one at

Ranchi, Jharkhand.

8. Whether those cases are without merit or otherwise,

can be determined only through trial. However, the

numbers do suggest that the petitioner is not an

Page 6 of 20 ordinary person. It is also important to note that

the State has withdrawn prosecution in many cases filed

against the petitioner.

9. We also notice that one of the FIR that is being

sought to be transferred i.e. FIR No.16/2007 was filed

long back in 2007, when the present ruling dispensation

in the State of Uttarakhand, was nowhere in picture.

The contents of the allegations in the FIR No.16/2007

(registered on 9.2.2007) relates to a property dispute

involving the Will (dated 20.1.1995), of a family

member of the petitioner.

10. The next FIR No.128/2018 (registered on 1.11.2018)

relates to forcible land grabbing attempts, on the

basis of purportedly fake of documents.

11. Perhaps only the FIR 100/2018 (dated 10.8.2018) is

relatable to journalistic activity where the allegation

of a core member of the investigative journalism team

is that the petitioner in the guise of sting operation

(by video recording activities of powerful elements),

Page 7 of 20 does not air them and the concerned footages are

utilized for extraneous purposes.

12. Let us now examine the arguments of the

petitioner’s counsel about the petitioner being

targeted for malicious prosecution. To demonstrate this

aspect the learned senior counsel refers to the pro-

active steps taken by the public prosecutor to arrest

the petitioner by repeatedly approaching the magistrate

and then the High Court. Whether the public prosecutor

followed the legal process or it was a case of

overenthusiasm is an issue, which may not be very

relevant for the purpose of these transfer petitions.

This is because the incident happened nearly two years

back when the FIR 100/2018 was first registered. More

importantly the charge sheet is already filed and the

case is scheduled to go for trial in the Dehradun

Court. Therefore, the role of the State will now be

limited to prove the prosecution case before the Trial

Court. In such Court controlled proceeding, the

prosecution will have to marshal their evidence which

Page 8 of 20 is to be evaluated by the Presiding Officer of the

concerned Court. Therefore, the apprehension of

malicious prosecution because of the steps taken by the

public prosecutor against the petitioner in 2018, is

not acceptable. I may also add that our courts are

capable of deciding cases on the merits of the

evidence.

13. On the above aspect the following ratio will have

a bearing. In Sidhartha Vashisht Vs. State (NCT of

Delhi)1, Justice P. Sathasivam, as he then was, while

writing for the Division Bench discussed the role of

public prosecutor and conducting of investigation and

his observations in the present case, will be apposite.

“187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused……………………………………………

1 (2010) 6 SCC 1

Page 9 of 20 198…………………………The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the courts do not normally have the right to interfere with the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the Prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot-free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law.”

14. In Maneka Sanjay Gandhi vs. Rani Jethmalani2, for

the three Judge Bench, Justice V.R. Krishna Iyer

enunciated the law on transfer under Section 406 CrPC

with the following observation: -

“2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to

2 (1979) 4 SCC 167

Page 10 of 20 consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances.

Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when- the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

3. One of the common circumstances alleged in applications for transfer is the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors, especially when an alternative venue will not seriously handicap the complainant and will mitigate the serious difficulties of the accused. In the present case the petitioner claims that both the parties reside in Delhi and some formal witnesses belong to Delhi; but the meat of the matter, in a case of defamation is something different. The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom. They belong to Bombay in this case and the suggestion of the petitioner's counsel that Delhi readers may be substitute witnesses and the complainant may content herself with examining such persons is too presumptuous for serious consideration.”

Page 11 of 20

15. In Abdul Nazar Madan vs. State of T.N. & Anr. 3,

Justice R.P. Sethi speaking for the Division Bench

discussed the scope of power under Section 406 CrPC and

observed:-

“7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration

3 (2000) 6 SCC 204

Page 12 of 20 for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”

16. In R. Balakrishna Pillai vs. State of Kerala4,

Justice M.B. Shah in another case for transfer under

Section 406 CrPC, made the following pertinent

observation:-

“9. ……. we would further state that in this country there is complete separation of the judiciary from the executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from the High Court of Kerala to the High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumption that its judicial verdict is consciously or subconsciously affected by the popular frenzy, official wrath or adverse publicity, which is not the position qua the

4 (2000) 7 SCC 129

Page 13 of 20 judicial administration in this country. We would also mention that at the time of hearing the learned counsel has not raised this contention.

17. In Captain Amrinder Singh Vs. Prakash Singh Badal &

Ors.5, Justice P. Sathasivam, as he then was, speaking

for the three judge Bench, on the issue of transfer of

criminal cases, observed as follows: -

“48. The analysis of all the materials, the transfer of the case as sought for, at this stage, is not only against the interest of prosecution but also against the interest of the other accused persons, the prosecution witnesses and the convenience of all concerned in the matter.

**** **** **** ****

**** **** **** ****

51. We have already pointed out that a mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all the circumstances, we are of the opinion that in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial trial to the accused, notwithstanding 5 (2009) 6 SCC 260

Page 14 of 20 the nature of the accusations made against them.

In the case on hand, the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.”

18. Let us now examine another precedent on transfer of

criminal cases. In Nahar Singh Yadav & Others vs. Union

of India & Ors.6, Justice D.K. Jain writing for the

three Judge Bench discussed the scope of transfer under

Section 406 CrPC in the following terms: -

“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.”

6 (2011) 1 SCC 307

Page 15 of 20

19. On the same line is the decision in Harita Sunil

Parab vs. State(NCT of Delhi) & ors7, where Justice

Navin Sinha, enunciated the law on transfer

jurisdiction in the following terms:-

“8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard- and-fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The charge-sheet in FIR No. 351 of 2016 reveals that of the 40 witnesses, the petitioner alone is from Mumbai, two are from Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. A reasonable presumption can be drawn that the position would be similar in the same also.”

7 (2018) 6 SCC 358

Page 16 of 20

20. The above legal enunciations make it amply clear

that transfer power under section 406 of the Code is to

be invoked sparingly. Only when fair justice is in

peril, a plea for transfer might be considered. The

court however will have to be fully satisfied that

impartial trial is not possible. Equally important is

to verify that the apprehension of not getting a level

playing field, is based on some credible material and

not just conjectures and surmises.

21. While assurance of a fair trial needs to be

respected, the plea for transfer of case should not be

entertained on mere apprehension of a hyper sensitive

person. In his pleadings and arguments, the petitioner

in my assessment has failed to demonstrate that because

of what he endured in 2018, it is not possible for the

courts in the state to dispense justice objectively and

without any bias. It can’t also be overlooked that the

petitioner is involved in several cases and this year

itself has generated few on his own in the state of

Page 17 of 20 Uttarakhand. Therefore, it is difficult to accept that

justice for the petitioner can only be ensured by

transfer of three cases mentioned in these petitions.

22. While considering a plea for transfer, the

convenience of parties would be a relevant

consideration. It can’t just be the convenience of the

petitioner but also of the Complainant, the Witnesses,

the Prosecution besides the larger issue of trial being

conducted under the jurisdictional Court. When relative

convenience and difficulties of all the parties

involved in the process are taken into account, it is

clear that the petitioner has failed to make out a

credible case for transfer of trial to alternative

venues outside the State.

23. The learned senior counsel for the petitioner made

it clear that the petitioner is not pointing any

fingers towards the courts and his apprehension is

based only on the action taken by the State. The

transfer of trials from one state to another would

inevitably reflect on the credibility of the State’s

Page 18 of 20 judiciary and but for compelling factors and clear

situation of deprivation of fair justice, the transfer

power should not be invoked. This case is not perceived

to be one of those exceptional categories.

24. When the nature of the three cases are examined,

it is seen that two of the cases are property and Will

related matters. One of this case is pending for last

over a decade. Therefore, this court finds it difficult

to accept that the cases are on account of journalistic

activities of the petitioner. In fact the credibility

of the journalistic activity of the petitioner is

itself questioned, by a member of his sting operation

team, in the third case. In such circumstances, the

prosecution in the concerned three cases can’t prima

facie be said to be on account of malicious

prosecution.

Page 19 of 20

25. In view of the forgoing, these Transfer Petitions

are dismissed. However, it is made clear that the

observations in this judgment is only for disposal of

these petitions and should have no bearing for any

other purpose.

……………………………………………J. [HRISHIKESH ROY] NEW DELHI OCTOBER 16, 2020

Page 20 of 20