Ram & Ors. Vs. Central Bureau of Investigation & Ors.  INSC 552
(27 July 2010)
SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRL.)
NO. 37 OF 2009 Bhiaru Ram & Ors. .... Petitioner(s) Versus Central Bureau
of Investigation & Ors. .... Respondent(s)
The petitioners, numbering nine, have approached this Court under
Section 406 of the Code of Criminal Procedure, 1973 seeking transfer of Special
Case No. 22 of 2008 pending before the Special Judge, CBI, Greater Mumbai,
being CBI Case No. RC/03(A)/2005-ACU-05- CBI, New Delhi, to a Court of
competent jurisdiction at Jaipur.
Factual Matrix On 29.09.2005, a First Information Report (in short
"FIR") was registered at New Delhi bearing FIR No. RC 3A/2005/ACU(V),
for offences under Section 13(1)(e) read with Section 13(2) of the Prevention
of Corruption Act, 1988 against one Shri B.R. Meena, who is respondent No.3
herein. At the relevant time, respondent No.3 was posted as Commissioner of
Income-Tax, Income Tax Appellate Tribunal, Mumbai. The substance of allegations
in the FIR against Shri B.R. Meena was that he was in possession of
disproportionate assets from 01.04.1991 to 31.03.2005. During the said period,
he was posted at various places such as Calcutta, Ahmedabad, Jaipur and Mumbai.
After carrying out the search at the official residence of Shri B.R. Meena and
his family members at various places, finally, the C.B.I., on 27.03.2008, filed
charge sheet before the Court of Special Judge, CBI, Greater Mumbai. In the
said charge sheet, petitioner Nos. 1-9 was arrayed as accused Nos. 5-13.
Reasons for transfer According to the petitioners, as per the
charge sheet, most of the alleged disproportionate assets/properties are
situated at Rajasthan and most of the witnesses are from Rajasthan, Jaipur, in
particular. As far as the petitioners are concerned, the allegations against
them are of having abetted Shri B.R. Meena-Respondent No. 3 herein and Smt.
Champa Devi, wife of Shri B.R. Meena, Respondent No. 4 herein, by fabricating
false evidence through preparation of false Agreement to Sell in order to help
them for justifying the huge cash recoveries. All the petitioners are residents
of the State of Rajasthan. Most of the alleged disproportionate assets are
situated at Rajasthan and FIRs were registered at Delhi, therefore, the CBI
ought to have filed charge sheet at Jaipur, Rajasthan.
also stated by the petitioners that since all of them hail from Rajasthan and
most of the witnesses to be examined are also residents of Rajasthan, for
convenience, 3 the case pending before the Special Judge, CBI, Greater Mumbai
be transferred to Jaipur, Rajasthan.
Heard Mr. P.H. Parekh, learned senior counsel appearing for the
petitioners and Mr. H.P. Raval, learned Additional Solicitor General, for the
Section 406 of the Code of Criminal Procedure empowers this Court
to transfer any case or appeal 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. We are
concerned about sub-clause (1) of Section 406 which reads as under:
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."
clear from the above said provision that for the ends of justice, this Court can
transfer any criminal case or appeal to any place. In order to transfer a case
from one State to 4 another or from one place to another, there must be
"reasonable apprehension" on the part of the party to a case that
justice may not be done. Mere allegation that there is apprehension that
justice will not be done, cannot be the basis of transfer. In fact, in the case
on hand, it is not the claim of the petitioners that they may not get fair
justice at Special Court, CBI, Greater Mumbai but they are seeking transfer
mainly on the basis of convenience stating that all of them are hailing from
Rajasthan and majority of the witnesses going to be examined are from Jaipur,
In a recent judgment pronounced on 23.07.2010 in D.A.V. Boys Sr.
Sec, School Etc. Etc. vs. D.A.V. College Managing Committee, Transfer Petition
(C) Nos. 1233-1237 of 2008, this Court while considering the power of this
Court to transfer suits, appeals etc. on the civil side under Section 25 of
Civil Procedure Code has held that, "Section 25 of the Code itself makes
it clear that if any application is made for transfer, after notice to the
parties, if the Court is satisfied that an order of transfer is expedient for
the ends of justice necessary direction may be issued for transfer of any suit,
appeal or other proceedings from a High Court or other Civil Court in one State
to another High Court or other Civil Court in any other State. In order to
maintain fair trial, this Court can exercise this power and transfer the
proceedings to an appropriate Court.
convenience of the parties may not be enough for the exercise of power but it
must also be shown that trial in the 5 chosen forum will result in denial of
justice. Further illustrations are, balance of convenience or inconvenience to
the plaintiff or the defendant or witnesses and reasonable apprehension in the
mind of the litigant that he might not get justice in the Court in which suit
is pending. The above-mentioned instances are only illustrative in nature. In
the interest of justice and to adherence of fair trial, this Court exercises
its discretion and order transfer in a suit or appeal or other
above, it is clear that the above mentioned principles have to be kept in mind
while dealing with transfer petitions.
In the case on hand, except convenience, the petitioners have not
pressed into service any other ground for transfer.
Mr. P.H. Parekh, informed this Court that the petitioners are willing to attend
the proceedings at Delhi, if the case is transferred to Special Court, CBI,
learned ASG, after taking us through specific averments made in the counter
affidavit filed on behalf of Respondent Nos. 1 & 2 (CBI), submitted that
the main accused Shri B.R. Meena is a very influential person in the State of
Rajasthan and there is strong apprehension that due to influence of Shri B.R.
Meena, there would be no fair trial at Jaipur or any other place in the State
pointed out that the Court of Special Judge, CBI at 6 Greater Mumbai has ample
jurisdiction to try this case because various movable properties have been
found in Mumbai and the main accused, Sh. B.R. Meena, was posted in Mumbai from
2001 to the end of the check period, i.e.
and this is the period during which most of the properties were allegedly
acquired by him and his family members.
We have already adverted to the fact that against the main
accused, Shri B.R. Meena, (IRS 1977), Commissioner of Income Tax, Income Tax
Appellate Tribunal, Mumbai, a case has been registered on 29.09.2005 under
Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act,
1988 for possession of assets in his own name and in the name of his family
members to the extent of Rs.43,29,394/- which were disproportionate to his
known sources of income and could not be satisfactorily accounted for. It
further shows that respondent No.3, during the check period i.e. 01.04.1993 to
04.10.2005, acquired assets disproportionate to his known sources of income to
the extent of Rs.1,39,39,025/-. The petitioners have been 7 charge sheeted for
commission of offences under Section 109 read with Section 193 of the IPC read
with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption
Act, 1988 for having actively aided and abetted Respondent Nos. 3 to 4 by
fabricating false evidence through preparation of false Agreements to Sell with
the object to justify/explain the huge cash recoveries from the residential
premises of respondent No.3. It further reveals that the petitioners entered
into false transactions with respondent No.3 showing receipt of cash amounts
against alleged purchase of immovable properties from him. The stamp papers
were purchased against registration of case and false Agreements to Sell were
prepared in connivance with each other.
A perusal of the charge sheet containing all these details clearly
shows that witnesses to be examined are not only from Jaipur, Rajasthan, but
also from various other places including Mumbai. Though the petitioners may
have a little inconvenience, the mere inconvenience may not be sufficient
ground for the exercise of power of transfer but it 8 must be shown that the
trial in the chosen forum will result in failure of justice. We have already
pointed out that except the plea of inconvenience on the ground that they have
to come all the way from Rajasthan no other reason was pressed into service.
Even, the request for transfer to Delhi cannot be accepted since it would not
be beneficial either to the petitioners or to the prosecution. In fact, the
main accused, respondent Nos. 3 & 4 have not filed any petition seeking
transfer. In such circumstances, the plea of the petitioners for transfer of
the case from the Court of Special Judge, CBI, Greater Mumbai to Special Judge,
CBI, Jaipur on the ground of inconvenience cannot be accepted.
In the light of the above discussion and conclusion, the transfer
petition is dismissed.
...........................................J. (P. SATHASIVAM)
..........................................J. (ASOK KUMAR GANGULY)
AUGUST 3, 2010.