Amarinder Singh Vs.
Parkash Singh Badal & Ors.  INSC 1064 (14 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRIMINAL) NO. 235 OF
2008 Capt. Amarinder Singh .... Petitioner(s) Versus Prakash Singh Badal &
Ors. .... Respondent(s) WITH TRANSFER PETITION (CRIMINAL) NO. 179 OF 2008
P. Sathasivam, J.
two transfer petitions have been preferred under Section 406 of the Code of
Criminal Procedure, 1973 seeking transfer of the case titled as "State of
Punjab vs. Prakash Singh Badal and Ors." relating to FIR No. 15 dated
24.06.2003 filed under Sections 420, 467, 468, 471 and 120-B of the Indian
Penal Code, 1860 read with Sections 7,8,9,10, 13 (1) and (2) of the Prevention
of Corruption Act, 1988 pending in the Court of Special Judge, Ropar to any
other suitable Court of competent jurisdiction in New Delhi.
Amarinder Singh is the petitioner in Transfer Petition No. 235 of 2008. M/s
Jeet Mohinder Singh, Sukhpal Singh, Gurpreet Singh and Mangat Ram Bansal who
are all members of Legislative Assembly are the petitioners in Transfer
Petition No. 179 of 2008. Respondent Nos. 1 to 10 are the accused in the case
relating to FIR No. 15 and 11th Respondent is the State of Punjab. Since, facts
are common in both the transfer petitions, we propose to dispose of the same by
this common judgment. For convenience, reference to parties will be as arrayed
in Transfer Petition No. 235 of 2008.
facts, as stated in the Transfer Petition No. 235 of 2008, are as follows:- a)
FIR No. 15 dated 24.06.2003 filed under Sections 420, 467, 468, 471 and 120-B
of Indian Penal Code, 1860 read with Sections 7, 8, 9, 10, 13(1) and (2) of the
Prevention of Corruption Act, 1988 was registered at the Police Station
Vigilance Bureau, Flying Squad, Mohali on the complaint of one Mr. Balwant
Singh son of Mr. Sukhdev Singh. This FIR was filed for offences committed by
Mr. Prakash Singh Badal (Accused No.1), Mr. Sukhbir Singh Badal (Accused No.2)
and other family members for alleged acts of corruption committed during the
previous tenure of Accused No.1 as Chief Minister of the State of Punjab for
the period 1997-2002, for collecting black money, owning/possessing Nammi &
Benami movable and immovable properties both in India and abroad. Summons were
issued by the Special Judge, Ropar, Punjab on 01.12.2003.
b) Against the
summons, Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal filed a Special
Leave Petition being SLP (Crl.) No. 5252 of 2003. Along with these proceedings,
they also filed a Transfer Petition before this Court being T.P. (Crl.) No. 307
of 2003 challenging, inter alia, the jurisdiction of the Special Judge, Ropar.
When both the petitions came up for hearing before this Court on 12.12.2003,
the Special Leave Petition as well as the Transfer Petition were withdrawn by
the Accused- Petitioners. The above-said Transfer Petition was 3 withdrawn
with liberty to file any other Transfer Petition in future and the same will be
considered on its own merits as pleaded in that petition.
c) Mr. Prakash Singh
Badal and Mr. Sukhbir Singh Badal having withdrawn the above Special Leave
Petition and Transfer Petition, moved an application on 16.01.2004 before the
Special Judge, Ropar raising question relating to the competence and jurisdiction
of the Special Court.
It was submitted that
the Special Court had no jurisdiction in the matter of FIR No. 15 of 24.06.2003
and that it could neither proceed nor adjudicate upon the said matter. By order
dated 29.05.2004, the learned Special Judge, dismissed the said application
holding that it had the requisite jurisdiction in the matter.
Aggrieved by that
order, on 30.06.2004, the accused filed CWP No. 9410 of 2004 before the High
Court of Punjab and Haryana at Chandigarh.
d) The High Court
heard the said Writ Petition and after considering all the legal issues raised
by the accused, rejected the same by a detailed judgment dated 4 02.09.2004
directing the Special Judge to conclude the trial as expeditiously as possible
and in any case not later than a year from the pronouncement of the said
judgment. Being aggrieved by this judgment, the accused filed Special Leave
Petition being SLP (Civil) No. 19640 of 2004 before this Court.
e) By this time, on
the issue of law relating to sanction for prosecution in such cases, several
Special Leave Petitions were filed before this Court by various Politicians
across the country in separate matters relating to the jurisdiction of Special
Courts dealing with such allegations of corruption, the cognizance and trial of
such offences relating to corruption and other issues as to the requirement of
sanction for prosecution. The entire batch of matters and all issues on law
were decided by this Court by a detailed judgment dated 06.12.2006 in the
matter of Prakash Singh Badal and Ors vs. State of Punjab and Ors., (2007) 1
SCC 1 and the said special leave petitions filed by the accused came to be
dismissed by this Court. As a natural outcome of this dismissal, the trial
before the Special Court, which had been suspended all this while was to
f) Elections were to
take place in the month of February, 2007 in the State of Punjab. Hence, the
Accused (who were also contesting election) sought time before the learned
Special Judge and requested that the trial be taken up after the election is
over and the result is announced. Thereafter, Accused No.1 assumed power and
position as the Chief Minister of Punjab the entire criminal trial took a
completely different turn.
g) On 15.02.2007, an
application was moved by one of the Accused regarding crucial witnesses and on
21.02.2007 another application was filed by the accused for
discontinuation/termination of further proceedings.
Although both these
applications would have serious ramifications on the case of the prosecution
and the continuation of the trial, a cursory reply was not filed by the public
prosecutor to the above applications nor were they objected to. Thus at this
primary stage itself it can be seen that the powerful position of Accused No.1
6 occupying the highest political chair in the State as Chief Minister of
Punjab was being brought down in full measure on the prosecution.
h) The allegations
against the accused were primarily that of corruption and of amassing assets
which were disproportionate to their income. To support this case, one of the
primary documents being relied on by the prosecution was a report prepared by
the Income-Tax Department as regards the income/assets and other financial
details of the accused. Despite this document being absolutely necessary to
prove the case of the prosecution, on 23.02.2007 the Investigating Officer, Mr.
Surinder Pal Singh, filed an affidavit before the Special Court/trial Court
stating that the report prepared by the Income-Tax Department ought not to be
considered by the Special Court at the stage of framing of charge. The
Investigating Officer, clearly to favour the accused, virtually throttled the
case of the prosecution with his own hands by conceding before the Special
Court/Trial Court that this crucial piece of evidence in the form of the
Income-Tax report ought not to be considered.
i) The prosecution
and the free and fair trial of the matter was already being further
compromised, is evident from the fact that while the public prosecutor continued
to fail to tender a reply to the above crucial applications filed by the
Accused. The accused themselves had stopped bothering to even appear before the
Special Court. By this time, Accused No.1 Mr. Prakash Singh Badal had formally
occupied the chair of Chief Minister of Punjab and was also holding the
Portfolio of the Department of Home.
j) When the matter
came up for hearing on 01.03.2007 and the Special Public Prosecutor Mr. Amar
Preet Singh Deol had closed his arguments, an application was moved by the
Public Prosecutor Mr. Pardeep Mehta under Section 173 (8) of the Code of
Criminal Procedure, 1973 seeking permission to conduct "further
investigation". While strangely such an application was made after the
Special Public Prosecutor had concluded his arguments, it was 8 further made
evident that the Prosecution was under the pressure of, inter alia, Accused
No.1 who was now the Chief Minister of Punjab to seek a medium through which
the case of the prosecution against the Accused could be weakened. This would
naturally be under the garb of such "further investigation" which had
now become "necessary".
k) Again when the
matter came up for hearing on 06.03.2007, neither of the accused was present in
the Court in spite of the express directions of the Special Court. As far as
the applications were concerned, a vague and perfunctory reply was filed by Mr.
Pardeep Mehta, the Public Prosecutor, which in fact did not even deal with the
contentions set out in the said application.
There was not even a
word of objection or opposition to the said application. As a matter of fact,
the reply filed by the prosecution requested the Court to adjourn these
applications and keep them sine die.
l) The public
prosecutor Mr. Pardeep Mehta, who had been protecting the interest of the
Accused was now made "in charge" of the case, obviously by the
Government headed by Accused No.1. Further it may be important to note that by
now, Accused No.1 was now in charge of Home Department and more particularly,
the Vigilance Department.
m) When the matter
once again came up for hearing on 07.03.2007, the Court was constrained to note
that no proper/final reply had been filed by the Prosecution with regard to the
applications filed by accused inter alia for discontinuation/termination.
n) Despite a complete
lack of assistance and interest on the part of the prosecution, the Special
Judge, Ropar framed charges against the Accused including Mr. Prakash Singh Badal
(Chief Minister of Punjab), Mr. Shukhbir Singh Badal (Son of the Chief
Minister) and other members of the family and known associates under Sections
13 (1)(a), 13(2), 13(1)(e), 8,9 and 14 of the Prevention of Corruption Act,
1988 read with Section 120-B of the Indian Penal Code, 1860. On 09.03.2007, the
Special Judge dismissed the application filed by the 10 Public Prosecutor Mr.
Pardeep Mehta for permission to conduct "further investigation" under
the provisions of Section 173 (8) of the Cr.P.C. along with various other
applications filed by the Accused with regard to directing the prosecution to
clear their stand on the statements of the witnesses and application for
termination of further proceedings and the challan in view of the alleged
infirmity in the proposed charges to be framed against the accused.
o) Despite all the
damage that could have done through the prosecution after the framing of the
charge, the Government of Punjab, Department of Home Affairs and Justices
issued Notification No.21/17/2000-3/JUDL (1)/1418 dated 10.05.2007/11.05.2007
canceling the appointments of all existing special public prosecutors in the
case. Ironically the said Notification was said to be passed with immediate
effect in public interest. Thus Accused No.1 who was holding charge of the Home
Ministry portfolio was in a position to actually decide as to who should be his
p) All the eleven
officials who appeared as witnesses despite admitting to their respective
signatures on their statements under Section 161 of the Criminal Procedure
Code, 1973 resiled from the contents thereof. It may be seen that if, fear of
or a sense of favour towards the Accused had driven the above witnesses who are
officials of Departments such as the Vigilance Bureau, Irrigation and PWD
Department to resile from their sworn statements, there could be no hope of
truth or assurance of safety for the witnesses in the case.
q) When the
prosecution further continued on 20.08.2007, three more prosecution witnesses
were examined and they all resiled from the statements made before them.
r) The conduct of the
Prosecution and the manner in which the Accused has struck at the heart of it
and made it defenceless can be seen from the fact that in the course of such
trial, it is common practice for the prosecution to require examination of the
investigating officer at the end of evidence so that such investigating officer
may prove the statement of the other witnesses even if they were to 12 have
resiled from the same in the course of examination.
However, in the
present case, despite the fact that some prosecution witnesses had already
started resiling from their statements, the prosecution deliberately made an
application for examining the investigating officer Mr. Surinder Pal Singh,
prematurely and at the beginning of such proceedings. If such Investigating
Officer was to be examined at this early stage, then there would be nobody left
to prove the statements of prosecution witnesses who were resiling. However,
this application was dismissed by the Special Court/Trial Court vide order
s) The manner in
which the public prosecutor Mr. Pardeep Mehta was covering up for the accused
and helping them is made further clear when the State of Punjab actually
appealed the above order of the Special Court/Trial Court dated 20.08.2007
dismissing the above application which was so done by challenging the order
before the High Court of Punjab and Haryana at Chandigarh vide Criminal Misc.
No.45232-M of 2007 under the provisions 13 of Section 482 of Code of Criminal
Procedure praying that the application moved by the prosecution to examine the
investigating officer before proceeding further be allowed.
By order dated
14.11.2007, the High Court directed the Special Court to consider afresh any
such application that may be filed by the public prosecutor in the near future.
t) The complete and
deliberate breakdown of the prosecution case became further clear when on 17.01.2008
the Complainant Mr. Balwant Singh too resiled from his affidavit by stating
that he had no knowledge of the contents of the Complaint which had led to
registration of the said FIR No.15 dated 26.04.2006 and despite acknowledging
his signatures on each and every document of the complaint and the accompanying
affidavit, stated that he had in fact signed these papers for the purchase of a
u) Finally on
04.02.2008, the prosecution finally succeeded in persuading the trial Court to
examine the Investigating Officer Mr. Surinder Pal Singh. The Investigating
Officer Mr. Surinder Pal Singh in his examination-in-chief has virtually
resiled from every aspect of the investigation;
stated that he did
not record the witness statements in question and wherever his signatures
appear on the record of the case was because "he signed where he was told
v) This trial is now
a sham and a farce designed to meet the ends of the accused who are in complete
control of every aspect of it.
against the above allegations, the respondents have filed response among which
let us refer the stand taken by the first respondent, namely, Mr. Prakash Singh
a) The transfer
petition is grossly belated. No explanation has been offered as to why the
petitioner has chosen to wait until the entire prosecution evidence which
commenced from 18.07.2007 stood concluded in March, 2008. The case is now at
the stage of consideration of recording statements under Section 313 of
Criminal Procedure Code. The petition is clearly politically motivated and an
attempt to scuttle the trial which is at its fag end.
b) A close relation
of Capt. Amarinder Singh, namely, Mr. Simranjit Singh Mann, had filed a
transfer petition in the High Court being CWP No. 11399/2007 for transfer of
the case from Ropar to any other Court outside the State of Punjab on the basis
of similar contentions, regarding the alleged impossibility of a free and fair
trial in the State of Punjab. The said transfer petition was dismissed by the
High Court, vide judgment and final order dated 25.09.2007, observing that
there is no basis for the apprehension expressed by the writ petitioner. This
judgment and final order of the High Court was never challenged.
c) All the alleged
witnesses in the case were put up by the present petitioner, as the then Chief
Minister of the State, in order to politically discredit the 1st respondent and
to create a defence for himself in respect of both civil and criminal
proceedings for defamation instituted by the 1st respondent against the
petitioner herein. Viewed in this 16 context, the deposition of the
prosecution witnesses before the Trial Court is clearly truthful, as they have
categorically exposed the manner in which they were cited as false witnesses
and subjected to threat and coercion at the instance of the petitioner herein.
d) Various events set
out in para 7 of the affidavit establish that the entire prosecution is
vitiated by mala fide. It is borne out from the record that the petitioner,
after assuming the office of Chief Minister in February 2002, had embarked upon
a witch hunt against the 1st respondent and his family members. To this end, he
retained to himself the portfolios of Home and Vigilance.
either working in the Vigilance Bureau or in various other Government
Departments were pressurized and cited in the list of witnesses, and a wholly
baseless challan was presented.
e) In para 12,
details were furnished about the number of prosecution witnesses, their status
and their statements.
In para 13, details
have been furnished about various documents placed before the trial Court. The
above- mentioned details reveal the mala fides behind the trial of the 1st
respondent and other accused. The petitioner has filed the present petition to
somehow scuttle the trial.
f) The statement of
official witnesses under Section 161 Cr.P.C. are never signed by the witnesses
and had categorically stated that on 1st, 2nd and 03rd November, 2003 they did
not go to any place for making any assessment. They had gone only in July, 2003
and submitted their reports. These reports, which would have established the
correct value of the property of the 1st respondent did not find approval with
the Vigilance Bureau and the same have been concealed.
g) As regards the
allegation of non-appearance of the accused in the Court, Smt. Surinder Kaur
Badal, wife of Mr. Prakash Singh Badal was granted permanent exemption from
personal appearance by the trial Court, way back on 21.02.2004 when the
petitioner Mr. Amarinder Singh himself was heading the Government.
The first respondent
had appeared on several dates including 13.03.2007 and 04.07.2007 when charge
sheet and amended charge sheet was served upon him.
Thereafter, he had
been seeking exemption from personal appearance by making appropriate
application. He had been granted exemption on specific dates of hearing by the
trial Court after due application of mind. Mr. Sukhbir Singh Badal appeared on
most of the dates of hearing in the trial Court barring a few where he was
granted exemption from personal appearance by the trial Court.
h) Regarding the
allegation of manhandling Mr. Amar Preet Singh Deol, the 1st respondent has
specifically denied the same and neither Mr. Amar Preet Singh Deol nor any
other person ever raised any issue before the trial court.
Even in the transfer
petition filed by Mr. Simranjit Singh Mann before the High Court, no such
averment was ever made regarding the alleged manhandling of Mr. Amar Preet
Singh Deol on 28.02.2007. Likewise, the 1st respondent has denied the
allegation that supporters and party workers indulged in slogan shouting
leading to a terror filled atmosphere in which no free and fair trial can 19
ever proceed or conclude. It is pointed out that no complaint has been made to
the Presiding Judge nor there has been any report in the Press about the same.
i) The entire matter
is now under the judicial scrutiny before the trial Court. There is no
allegation in the petition against the conduct of the proceedings in the Court
or against the Presiding Officer.
5) In the light of
the above pleadings, we have heard Mr. Altaf Ahmed and Mr. P.S. Narasimha,
learned senior counsel for the petitioners and Mr. Harish N. Salve, Mr. Ashok
Desai, Dr. Rajiv Dhavan, Mr. Ravi Shanker Prasad and Mr. C.S. Vaidyanathan,
learned senior counsel for the respondents.
6) After taking us
through the entire materials including the complaint, statement of witnesses,
proceedings, various orders of the Court and steps taken and the alleged
failure or lapse by the special Public Prosecutor, Mr. Altaf Ahmed and Mr. P.S.
Narasimha, learned senior counsel appearing for the petitioners mainly
submitted that in view of the fact that the first accused being the Chief
Minister and his son being a Deputy Chief Minister, others are being either
family members of the Chief Minister or his close associates, there cannot be
any fair trial. They also contended that in view of the attitude of the
Government terminating all the special counsel/special public prosecutors
except one Mr. Pardeep Mehta, it is undesirable to continue the prosecution in
any place in the State of Punjab. They finally contended that the conduct of
the Investigating Officer, namely, Mr. Surinder Pal Singh in disowning his
statement and conceding that he put his signature under pressure clearly shows
that there cannot be a fair trial and nobody is interested to proceed with the
prosecution case. On the other hand, learned senior counsel appearing for the
respondents/accused disputed all the allegations/apprehensions raised by the
petitioners in conducting fair trial. After taking us through the statement of
the witnesses examined so far and documents placed, it is stated that it cannot
be construed that there was any inaction on the part of the prosecution or
public prosecutor. According to them, there is no basis for such apprehension
and witnesses have clarified their statements and asserted that their
statements before the Court are true. They also highlighted their position at
the relevant time and confirmed that they had nothing to do with the
allegations made against them. It is further pointed out that those witnesses
clarified that they were not under pressure. It is also pointed out that
inasmuch as most of the witnesses so far examined resiled one after another and
only in this context, public prosecutor informed the Court that there is no
purpose in continuing the prosecution.
7) The above transfer
petitions have been filed under Section 406 of the Code of Criminal Procedure,
1973 which is reproduced below for ready reference:
"406. Power of
Supreme Court to transfer cases and appeals.- (1) Whenever it is made to appear
to the Supreme Court that an order under this section is expedient for the ends
of justice, it may direct that any particular case or appeal be transferred
from one High Court to another High Court or from a Criminal Court subordinate
to one High Court to another Criminal Court of equal or superior jurisdiction subordinate
to another High Court.
(2) The Supreme Court
may act under this section only on the application of the Attorney-General of
India or of a party interested, and every such application shall be made by
motion, which shall, except when the applicant is the Attorney-General of India
or the Advocate-General of the State, be supported by affidavit or affirmation.
22 (3) Where any
application for the exercise of the powers conferred by this section is
dismissed, the Supreme Court may, if it is of opinion that the application was
frivolous or vexatious, order the applicant to pay by way of compensation to
any person who has opposed the application such sum not exceeding one thousand
rupees as it may consider appropriate in the circumstances of the case."
Sub-section (1) makes
it clear that for the ends of justice it would be open to 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.
8) Before considering
the rival claim of both parties, it is useful to refer some of the decisions of
this Court relating to transfer of a criminal case from one State to another.
9) In K. Anbazhagan
vs. Superintendent of Police & Ors. (2004) 3 SCC 767, this Court had an
occasion to consider the transfer of a criminal trial from the State of Tamil
Nadu to another State, a two Judge Bench, after going into the factual details,
particularly, the change of Government, attitude of the public prosecutor and
finding that there is justifiable and reasonable apprehension of miscarriage of
justice as well as likelihood of bias, allowed the Transfer petition pending on
the file of XIth Additional Sessions Judge (Special Court No. 1) Chennai, State
of Tamil Nadu to the State of Karnataka. While directing the transfer this
Court permitted the State of Karnataka in consultation with the Chief Justice
of the High Court of Karnataka to appoint a senior lawyer having experience in
criminal trials as Public Prosecutor to conduct those cases. In the same order,
the Court observed that the public prosecutor will be at liberty to apply that
the witnesses who have been recalled and cross- examined by the accused, who
have resiled from the previous statement, may be again recalled. The Court
further observed that the public prosecutor would be at liberty to apply to the
Court to have these witnesses declared hostile and seek permission to
10) In Abdul Nazar
Madani vs. State of Tamil Nadu and Anr. (2000) 6 SCC 204, the issue dealt with
was for transfer of criminal case from one State to another. In the said
decision it was reiterated 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 case within the State
under Section 407 and anywhere in the country under Section 406 Cr.P.C. 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. However, 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. After perusing the
figures furnished and considering all the materials, it was concluded that the
transfer petitions were totally misconceived and dismissed the same.
11) In Sri Jayendra
Saraswathy Swamigal (II) T.N. vs. State of T.N. & Ors. (2005) 8 SCC 771,
this Court has held that if there is reasonable apprehension on the part of a
party to a case that justice may not be done, he may seek transfer of the case.
It also held that the apprehension and parties must be a reasonable one and the
case cannot be transferred on a mere allegation that there is apprehension that
justice will not be done.
12) It is a
well-established proposition of law that a criminal prosecution, if otherwise,
justifiable and based upon adequate evidence does not become vitiated on
account of mala fides or political mandate of the informant or the complainant.
justifiable and reasonable apprehension of miscarriage of justice and
likelihood of bias is established, undoubtedly, the proceeding has to be
transferred elsewhere by exercise of power under Section 406 Cr.P.C. For a
transfer of a criminal case, there must be a reasonable apprehension on the
part of the party to a case that justice will not be done.
It is one of the
principles of administration of justice that justice should not only be done
but it should be seen to be done. On the other hand, mere allegations that
there is apprehension that justice will not be done in a given case does not
suffice. In other words, the court has further to see whether apprehension
alleged is reasonable or not. The apprehension must not only be entertained but
must appear to the court to be a reasonable apprehension.
13) Assurance of a
fair trial is the first imperative of the dispensation of justice. The purpose
of the criminal trial is to dispense fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that the public confidence in the
fairness of a trial would be seriously undermined, the aggrieved party can seek
the transfer of a case within the State under Section 407 and anywhere in the
country under Section 406 Cr.P.C. However, the apprehension of not getting a
fair and impartial inquiry or trial is required to be reasonable and not
imaginary. Free and fair trial is sine qua non of Article 21 of the
Constitution. If the criminal trial is not free and fair and if it is biased,
judicial fairness and the criminal justice system would be at stake, shaking
the confidence of the public in the system. The apprehension must appear to the
Court to be a reasonable one.
14) In the light of
the above principles, let us analyse the claim of both parties and find out
whether the criminal trial is to be transferred to other State. It was pointed
out that with respect to offences committed during the period between
1997-2002, the time when the first Respondent was the Chief Minister, an FIR
was launched on 24.06.2003 and chargesheet was filed on 22.11.2003, citing 138
witnesses to be examined.
chargesheet was filed on 04.01.2004 citing more witnesses. The first Respondent
came back to power as the Chief Minister in February, 2007. Out of 138
witnesses only 59 were examined, out of which 35 turned hostile. Mr. Altaf
Ahmad, learned senior counsel for the petitioner pointed out that the aspect of
selective calling up of witnesses, dropping crucial witnesses, most of the
witnesses turning hostile one after another, non-examination of witnesses
connected with the transaction and not citing certain witnesses hostile or
cross examining them when they resile from the earlier statements, has
virtually rendered the trial farcical. Though, in a transfer petition we are
not expected to go into the veracity of the statement of the witnesses and
their evidential value, since both side cited several instances, we may refer
the same without expressing specific opinion on them. According to the counsel
for the petitioners insofar as valuation of the properties of the accused,
though, one Mr.
Bharat Shah, Challan
Witness No. 114 who had visited the properties of the Accused for the purpose
of valuation and assessment of the assets of the accused and had recorded a
statement under Section 161, was dropped by the prosecution.
On the request of the
police that they would not help the case of the prosecution it was pointed out
that on the same reasoning Mr. Surinderpal Mitra, Challan Witness No. 116 and
Mr. S.K. Srivastava were dropped by the prosecution.
Likewise, it was
pointed out that Mr. Sukhdip Singh Dhindsa, Mr. S.K. Jain, Mr. A.K. Goel, Mr.
Gurpratap Singh, Mr. Sawtantar Singh, and Mr. Vinarjit Singh were not examined.
In the same manner,
in respect of allegation relating to Benami transaction some of the prosecution
witnesses were either dropped or declared as hostile. It was contended that same
was the position in respect of charge relating to bribery, flow of illegal
wealth and black money of the accused persons.
15) Though, Mr. Altaf
Ahmad and Mr. P.S. Narasimha took us through their evidence let in before the
Special Court and their statement recorded earlier under Section 161 Cr.P.C. Mr.
Harish Salve, senior counsel appearing for one of the Respondents by taking us
through the same materials demonstrated that there is no basis for the
apprehension expressed by the petitioners. It was pointed out that initially
Capt. Amrinder Singh was also a member of the same party along with Respondent
No. 1 who subsequently left the Shiromani Akali Dal on being denied to contest
the Assembly Election in 1997. Since then, the petitioner held Mr. Prakash
Singh Badal who was the president of the Shiromani Akali Dal at that time, to
be responsible for his fate. The petitioner had subsequently joined the
Congress. It was further pointed out that in September, 2001 in the Assembly
elections in Punjab, the petitioner wrote a letter to Mr. Badal alleging that
the latter had amassed properties in India and Abroad which were
disproportionate to his known sources of income. The said letter was published
in the Press and wide publicity was given for the purpose of electoral gain in
February, 2002. A criminal complaint for defamation was filed by Mr. Badal's
son Mr. Sukhbir Singh Badal, 2nd Respondent herein against the petitioner. It
was pointed out that in the same month i.e. in 2002, the Congress party came to
power in Punjab and the petitioner was appointed as the Chief Minister and
retained with himself the portfolio of Home and Vigilance. It was further
pointed out that on account of the persistence of the petitioner with his
defamatory allegations, the respondent herein also filed a criminal complaint
for defamation against the petitioner. In both the said criminal complaints,
the petitioner had been the same and served with notice of accusation by the
Trial court to face the trial. It is claimed that FIR dated 24.06.2003 is
almost a verbatim copy of the letter dated 04.09.2001 written by the
petitioner. In the counter affidavit filed before us the first respondent has
highlighted various other proceedings between the respondents and the
petitioner. In the same counter affidavit the evidence given by prosecution
witnesses were catalogued and asserted that those witnesses have not supported
the case of the prosecution and also emphasized the manner in which the
prosecution set up the false witnesses, pressurized and threatened them. It is
the claim of the learned senior counsel appearing for the petitioners that
contrary to all known practice of a conduct of a trial in which the prosecution
examines the Investigating Officer at the end of the prosecution evidence so
that the statements of hostile witnesses may be proved, in the cases on hand
the public prosecutor, Mr. Pardeep Mehta prematurely filed an application for
examining the Investigating Officer, Mr. Surinder Pal Singh. By pointing out
the same, learned senior counsel for the petitioners contended that prosecution
was so keen that the Investigating Officer be examined out of turn. It is seen
that the said application filed by the public prosecutor was dismissed by the
trial Court by order dated 20.08.2007. The special Court after finding that in
case other witnesses turned hostile then Investigating Officer is to prove
their statement, therefore, it will be appropriate if the Investigating Officer
is examined after examination of the remaining material witnesses. By saying
so, the special Court disposed of the application filed by the public
Against the said
order, the State of Punjab appealed before the High Court of Punjab & Haryana
in Crl. Misc. Application No. 45232-M/07. The materials placed show that in the
meantime before the Special Court three more witnesses were examined and they
also turned hostile. They are: 1. PW 34:
Mr. Rajinder Singh
Garewal, Deputy Director, Horticulture PW 35: Mr. Rajinder Singh, Sub
Divisional Engineer, Irrigation, Bhatinda and 3. PW 36: Mr. Vijay Kumar, Junior
Engineer, Drainage. Ultimately, the High Court disposed of Crl. Misc.
Application and passed an order to the effect that in the light of any changed
circumstances and/or subsequent events, the public prosecutor deems it
appropriate to seek permission of the learned Special Judge to examine the
Investigating Officer before the remaining witnesses are examined, he may move
another application to this effect and if such an application is moved, the
learned Special Judge was directed to consider and dispose of the same in
accordance with law by ignoring the previous order dated 20.08.2007.
three more witnesses were examined on 26.11.2007 & 27.11.2007 and they too
turned hostile. They are - 1. PW 43: Mr. Amandeep Singh Brar, Executive
Engineer, PWD 2. PW 44: Mr. Sukdhip Singh Dhindsa, Executive Engineer, PWD and
3. PW 46: Mr. Surender Singh, Cable Operator. It is further seen that on
04.01.2008 two more witnesses were examined who also turned hostile. They are -
1. PW 50: Mr. Jit Singh, Agriculturist and 2. PW 52: Mr. Gurinder Pal Singh,
Inspector General of Police, Railways. It was highlighted that those witnesses
i.e. PWs 9 to 14, 35 & 36 had not even seen Balasar Farm House, where their
services were alleged to have been utilized. Likewise, the other witnesses PWs
1 to 7, 15, 23, 24, 27, 28, 43, 44 and 53 have denied their role in assessing
the properties on 1st , 2nd and 3rd November, 2003 i.e. the date of the
assessment alleged by the prosecution. Those witnesses filed separate affidavit
in the High court stating that on 1st, , 2nd , 3rd November 2003, when the
alleged assessment said to be taken place, they were doing their official work
at their respective offices. These witnesses admitted the fact that they
assessed those properties in July, 2003, but their report did not find approval
of the Vigilance Bureau.
16) Though, it was
highlighted that the first respondent is a Chief Minister and all other accused
are his relatives and friends, the information furnished show that except one
or two others are businessmen, agriculturists, employed as Special Inspector in
U.T. Chandigarh, and one as Hindi teacher. In that event, if transfer is
ordered outside the State of Punjab, it would be difficult for the other
accused to attend the Court proceedings on several occasions. The same hurdle
is there for other witnesses both on the prosecution as well as defence.
17) It is relevant to
point out that the complainant himself, namely, Mr. Balwant Singh who was
examined as PW 56 resiled stating that the affidavit supporting his private
complaint was not filed by him. He asserted that he had signed these papers for
purchase of a vehicle. On the same day 17.01.2008/18.01.2008 when the
complainant resiled, PW 53: Mr. Amarjit Singh, SP Vigilance Bureau and PW 55:
Mr. Jagdish Singh
Khaloan, SP, Ferozepur who were examined on the same date also turned hostile.
On the next hearing date i.e. 05.02.2008 when the prosecution examined the
Investigating Officer, in his examination in chief, he resiled from every
aspect of the investigation stating that he did not record the witness
statements, he signed when he was told to and even the charge sheet was
prepared on the computer of a Senior Officer and merely signed by him. In those
circumstances, in view of the fact that many of the officers asserted before
the Special Court that neither they were not in the respective position as claimed
by the prosecution nor they made a statement as recorded under Section 161
which necessitated the public prosecutor closing the prosecution case by giving
up remaining PWs as unnecessary.
18) Coming to the
allegation relating to removal of Special public prosecutors/special counsel
and the conduct of the present Public Prosecutor Mr. Pardeep Mehta, on behalf
of the State of Punjab, Chief Secretary has filed a counter affidavit dated
29.04.2008 explaining the correct position. It is stated that the political
system prevailing in India is such that whenever Government changes or new
political party forms the Government, all the officers including the Advocate General
and the Law Officers tender their resignation and new ones, in whom the
Government of the day has confidence are appointed by the new
Government/Political Parties. The same was also done by the government headed
by the petitioner herein which came in power in the year 2002. Relating to the
allegations that have been made against the Public Prosecutor Mr. Pardeep
Mehta, the Chief Secretary has explained that Mr. Pardeep Mehta had been posted
as Deputy District Attorney in the Vigilance Bureau, Punjab on 26.09.2002. He
was promoted as District Attorney by Order dated 29.05.2006.
Pursuant to his
promotion as District Attorney vide order 31.05.2006 passed by the Principal
Secretary, Department of Home Affairs and Justice, State of Punjab, he was
appointed as District Attorney, Ropar. Soon after his appointment as Deputy
District Attorney, Vigilance Bureau, Punjab, Mr. Pardeep Mehta had been
conducting the prosecution of almost all the cases registered under the
Prevention of Corruption Act at Mohali. He had also been assisting various
special public prosecutors in the conduct of the trial of the present case, as
well as the proceedings before the High Court and in this Court. He relied on
the order sheet of the Trial Court with effect from 19.12.2006 which, according
to him, reveal that Mr. Pardeep Mehta appeared on behalf of the prosecution on
each and every date of hearing.
19) With regard to
allegation regarding appointment and removal of other public
prosecutors/special counsel, the Chief Secretary has explained that on
28.11.2003 by separate Notification Mr. Amar Pal Singh Randhawa, Advocate, Mr. H.S.
Sandhu, Senior Advocate and Mr. Sukhdev Singh Tiwana, Advocate were appointed
as Special Public Prosecutor in the present case. On the same day i.e.
28.11.2003, Mr. Pardeep Singh, Advocate, Mr. Shiv Dutt Sharma, Advocate and Mr.
Amar Ashok Pathak, District Attorney/PP were appointed to assist the
prosecution. Mr. U.U. Lalit, Advocate, (now Senior Advocate) on 24.04.2004, Mr.
Rajiv Dutta, Senior Advocate, on 17.09.2004, Mr. Amar Preet Singh Deol,
Advocate, on 22.12.2006 and Mr. R.S. Cheema, Senior Advocate (the then Advocate
General, Punjab) on 18.01.2007 were appointed as special public prosecutors
respectively. It was further explained that the order sheet of the Trial Court
from time to time shows that Mr. Amar Pal Singh Randhawa, Advocate had never
conducted the proceedings before the Trial Court. Mr. Rajiv Dutta, Senior
Advocate appeared on 18.09.2004 i.e. on one occasion only. Mr. U.U. Lalit,
Senior Advocate, had appeared on 24.04.2004, 29.04.2004, 04.05.2004,
15.05.2004, 28.09.2004 and 30.09.2004, and not thereafter.
20) As regards the
allegation that Mr. Amar Preet Singh Deol, Special Public Prosecutor, was
manhandled on 28.02.2007, Chief Secretary has stated that no complaint was
filed by him in respect of any such alleged incident. On the other hand, it was
pointed out that Mr. Amar Preet Singh Deol had himself written a letter on
12.03.2007 to the Secretary (Home), Punjab, Chandigarh, requesting, inter alia,
for clearance of his fee bills, and even in this letter there was no mention of
any such incident. It was further stated that Mr. H.S. Mattewal was appointed
as Advocate General for the State of Punjab on 02.03.2007 and he assumed his
office on the said date.
21) As rightly
highlighted by the learned senior counsel for the State of Punjab that there is
no reason to disregard the above information furnished by the Chief Secretary
of the State of Punjab. In those circumstances, the allegation relating to
removal of Special Public Prosecutors and about Mr. Pardeep Mehta cannot be
sustained. It is also relevant to point out that before the Court of Special
Judge, Ropar, the present Public Prosecutor Mr. Pardeep Mehta made a statement
on behalf of the State that on the basis of the police records he had given up
prosecution witnesses Mr. Kuldeep Singh, Mr. Bharat Shah, Mr. Amolak Singh and
Mr. Surender Pal Mitra as they will not support the case of the prosecution and
also stated that he wanted to examine only the witness Jatinder Singh, Sr. No.
5 in the supplementary challan, Mr. C. Paramjit Singh, Sr. No. 5, main challan,
Mr. Surinder Pal Singh, Sr. No. 137, in the main challan, Mr. Amarjit Singh SP,
Sr. No. 99, main challan, Mr. J.S. Kahlon, Sr. No. 34 of main challan, Mr. S.
Chatopadhya, Sr. No. 135, main challan and Mr. B.K. Uppal, Sr. No. 136 of main
challan. We also verified the statement of the 59 witnesses of which 35
declared as hostile by Public Prosecutor. The perusal leads to a conclusion
that the presiding Judge has made an effort by putting relevant question to those
witnesses and taking note of their assertion that they were forced to make
incorrect statement at the time of preliminary investigation, the public
prosecutor Mr. Pardeep Mehta has declared them as hostile.
Ultimately, it is
upon the presiding officer/Special Judge and not this Court to evaluate those
witnesses and arrive at a conclusion one way or other depending on the charges
leveled against the accused. It would not be fair on the part of this court either
to assess and arrive at an opinion about the same.
Even after closing of
the prosecution side by the Public Prosecutor, if the Court wants to examine
some more witnesses from the list furnished by the prosecution, it is for the
presiding Judge to take a decision in accordance with the law and issue
22) Though, Mr. Altaf
Ahmad, Learned senior counsel relied on the decisions of this Court in K.
Anbazhagan vs. Superintendent of Police & Ors., S.K. Sukla & Ors vs.
State of U.P. & Ors. and Jayendra Saraswati Swamigal vs. State of Tamil
Nadu, (supra) in view of the factual details as seen from the materials placed
before the Special Court and the details shown in the form of reply affidavit
on behalf of the Respondent No. 1 in response to the Transfer Petition No. 235
of 2008 as well as affidavit of the Chief Secretary placing certain factual
details, we are of the view that those decisions are not helpful/applicable to
the cases on hand.
23) 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
other accused persons, the prosecution witnesses and the convenience of all
concerned in the matter. For the sake of repetition, it is relevant to mention
that when the complainant was examined as PW 56, he disowned his complaint and
asserted that it (complaint) was not filed by him though he admitted his
signature found therein. Further, all important witnesses particularly government
officials informed that what they said before the Court alone is absolute truth
and they were forced to make false statement at the time of registering the
complaint. As stated earlier, similar transfer petition which was filed before
the High Court ended in dismissal and it became final. We are satisfied that
the presiding officer of the Special Court is conscious of his power and how to
conduct fair trial at the same place. We are also of the opinion that the
public prosecutor cannot act on the dictates of the State Government, he has to
act objectively as he is also an Officer of the Court. The Special Court is
free to assess whether prosecution has established its case. We have already
pointed out that a mere allegation that there is apprehension that justice will
not be done in a given case alone does not suffice.
totality of all 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, 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.
24) Taking into
consideration the entire facts and circumstances of the case and the materials
on record, we are of the view that the petitioners have not made out a case
that they have reasonable apprehension of not availing justice in the State of
Punjab. We would like to clarify that we have not expressed anything on the
merits neither of the prosecution case nor the defence of the accused and
whatever said in the earlier paragraphs are applicable only for disposal of
transfer petitions and ultimately it is for the Special Court to decide the
issues in the light of the material placed and in accordance with the law. The
inevitable conclusion is that both the transfer petitions filed by the
petitioners deserve to be dismissed, which we direct.