Jaggi Vs. State of Chhattisgarh & Ors  Insc 188 (22 February 2007)
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN
(Arising Out of S.L.P (Crl.) No. 6154 of 2006) Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Chhattisgarh High Court dismissing the transfer petition filed under
Section 407 of the Code of Criminal Procedure, 1973 (for short 'the Code') for
transferring of Sessions Trial no.329/2005 (State through CBI v. Amit Jogi and
30 others), pending in the Court of Sessions Judge, Raipur, Chhattisgarh to
some other Court. The transfer was sought for primarily on the ground that the
Sessions Judge before whom the trial was pending is the elder brother of a
sitting MLA who is very close to the father of respondent no.3, one of the main
accused persons. It was alleged that the father of respondent no. 3 was the
previous Chief Minister of the state and that he and the brother of the Learned
Sessions Judge belong to the same political party. It was further stated that
the said MLA was very close to the father of respondent no.3 who was earlier
the Chief Minister of the State.
Therefore, according to the appellant, he was under a bona fide and genuine
apprehension that he will not get justice if the trial is conducted and
concluded by the present Sessions Judge. It was also stated that the major part
of the trial was conducted by the third Additional Sessions Judge, Raipur. By
order dated 21.6.2006 the case was transferred to the Court of the Session
Judge, Raipur (Shri R. S. Sharma) who examined four prosecution witnesses and
21 defence witnesses. At that stage, Shri R. S. Sharma was transferred as
Sessions Judge, Janigir- Champa and Shri Sanman Singh was posted in his place
as the Sessions Judge. Therefore, prayer was made to transfer to the Court of
Sessions Judge, Janigir-Champa, where the previous Sessions Judge was posted so
that he could conclude the trial by camping at Raipur for that purpose. The
High Court held that assurance of fair trial is imperative for the dispensing
of justice and the primary consideration for the Court is to consider whether a
motion of transfer is made out and the High Court is not required to lay stress
on hypersensitivity or relative convenience of a party.
The High Court felt that the grounds set forth by the appellant seeking
transfer cannot be considered to be sufficient to direct transfer. Merely
because the brother of the trial Judge was a sitting MLA, that cannot be a
ground to prima facie come to a conclusion that there would be pressure through
either by the brother or father of the accused who was supposed to be close to
his brother. It was further noted that the trial is at a final stage and about
150 prosecution witnesses and all the defence witnesses have been examined and
what remains to be done is to hear the arguments and pass the judgment.
Therefore, the prayer was rejected.
Learned counsel for the appellant submitted that ultimately administration
of justice rests on many principles and one of the fundamental principles is
that justice should not only be done but it should be seen to be done. The
present case is not one where a mere allegation is made.
There is no dispute that the brother of the present Sessions Judge is a
sitting MLA belonging to a particular party of which respondent no.3's father
was earlier the leader and the Chief Minister.
Mr. K.K. Venugopal, learned senior advocate, appearing for some of the
respondents submitted that if the allegation is accepted it would be doubting
the impartiality of the present Sessions Judge. There is no material to show
that the Judge has any bias or any partisan attitude. The fortuitous
circumstances that his brother is an MLA cannot be a factor to doubt the
judicial discipline of the Sessions Judge.
The law with regard to transfer of cases is well settled.
This Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan (AIR
1966 SC 1418) held that a case is transferred if there is a reasonable
apprehension on the part of a party to a case that justice will not be done.
This Court said that a petitioner is not required to demonstrate that justice
will inevitably fail. He is entitled to a transfer if he shows circumstances
from which it can be inferred that he entertains an apprehension and that it is
reasonable in the circumstances alleged. This Court further held that it is one
of the principles of the administration of justice that justice should not be
done but it should be seen to be done. The court has further to see whether the
apprehension is reasonable or not. This Court also said that to judge the
reasonableness of the apprehension, the state of the mind of the person who
entertains the apprehension is no doubt relevant but that is not all. The
apprehension must not only be entertained, but must appear to the court to be a
It was further held by this Court in Mrs. Maneka Sanjay Gandhi and Anr. V.
Miss Rani Jethmalani (AIR 1979 SC 468) that assurance of a fair trial is the
first imperative of the dispensation of justice and the central criterion for
the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or availability of legal
services or any like grievance. Something more substantial, more compelling,
more imperiling, 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. This Court, in the facts and circumstances of the case,
said that the grounds for the transfer have to be tested 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 where the case
against him should be tried. It further said that even so, the process of
justice should not harass the parties and from that angle the court may weigh
In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000 SC 2293) this Court
stated that 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 of the Code. 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 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, if any, the witnesses and the
larger interest of the society.
In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309) this Court felt that
where public confidence in the fairness of the trial is likely to be seriously
undermined under the circumstances of the case, transfer petition could be
On finding that "there is uniformity of testimony from both sides about
the nature of surcharged communal tension in that area," the Court found
that the local atmosphere was not conducive to a fair and impartial trial which
was a good ground for transfer. The court rejected the contention of the
petitioner therein regarding the wild allegations made to the effect that no
court in the State of M.P. would be unbiased or impartial for dispensing
justice. In the peculiar facts and circumstances of the case, the trial was
transferred to an adjoining court. The mere existence of a surcharged
atmosphere without there being proof of inability for holding fair and
impartial trial cannot be made a ground for transfer of a case. Alleged
communally surcharged atmosphere has to be considered in the light of the
accusations made and the nature of the crime committed by the accused seeking
transfer of his case. It will be unsafe to hold that as and when accusations
are made regarding the existence of a surcharged communal atmosphere, the case
should be transferred from the area where existence of such surcharged
atmosphere is alleged.
The position was also examined in Pal Singh and Anr. V.
Central Bureau of Investigation and Ors. (2005 (12) SCC 329).
In that case, considering the fact that large number of witnesses had been
examined and few more witnesses were left to be examined, this Court set aside
the order of the High Court transferring the case from one Sessions Court to
another. The High Court was, therefore, held to be not justified in
entertaining the petition for transfer.
In this case, one thing which has to be kept in view is that the Sessions
Judge himself has not indicated his disinclination to hear the matter. That is
probably because he believes that the mere fact that his brother is known to
some political heavyweight cannot stand in his way of discharging judicial
function impartially without fear and favour. These are the hallmarks of
judicial system. A judicial officer in whatever capacity he may be functioning
has to 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
can be no exceptions to this imperative, but at the same time there should not
be any scope given to any person to go away with the feeling that the Judge was
biased, however unfounded the impression may be.
The qualities desired of a Judge can be simply stated: "that if he be a
good one and that he be thought to be so". Such credentials are not easily
acquired. The Judge needs to have "the strength to put an end to
injustice" and "the faculties that are demanded of the historian and
the philosopher and the prophet". A few paragraphs from the book
"Judges" by David Pannick which are often quoted need to be set out
"The Judge has burdensome responsibilities to discharge. He has power
over the lives and livelihood of all those litigants who enter his court.His
decisions may well affect the interests of individuals and groups who are not
present or represented in court. If he is not careful, the judge may
precipitate a civil war.
Or he may accelerate a revolution.He may accidentally cause a peaceful but
fundamental change in the political complexion of the country.
xx xx xx xx Judges today face tribulations, as well as trials, not
contemplated by their predecessors.Parliament has recognized the pressures of
the job by providing that before the Lord Chancellor recommends anyone to the
Queen for appointment to the Circuit Bench, the Lord Chancellor 'shall take
steps to satisfy himself that the person's health is satisfactory'.. This seems
essential in the light of the reminiscences of Lord Roskill as to the mental
strain which the job can impose.Lord Roskill added that, in his experience,
'the workload is intolerable: seven days a week, 14 hours a day' xx xx xx xx He
(judge) is a symbol of that strange mixture of reality and illusion, democracy
and privilege, humbug and decency , the subtle network of compromises, by which
the nation keeps itself in its familiar shape". (See Brij Mohan Lal v. Union
of India and Ors. (2002 (5) SCC 1) We are sure that the present Sessions Judge
would have acted in the true sense of a judicial officer. But nevertheless to
ensure that justice is not only done, but also seen to be done and the peculiar
facts of the case, we feel that it will be appropriate if the High Court
transfers the case to some other Sessions Court in Raipur itself. We make it
clear that the transfer shall not be construed as casting any aspersion on the
Learned Sessions Judge. The Trial Court before whom the trial is to continue
should ensure that the trial is completed by the end of May, 2007. Needless to
say, the parties shall co- operate in the completion of the trial within the said
The appeal is accordingly disposed of.