Gurucharan Das Chadha Vs. State of
Rajasthan [1965] INSC 260 (24 November 1965)
24/11/1965 HIDAYATULLAH, M.
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) RAMASWAMI, V.
CITATION: 1966 AIR 1418 1966 SCR (2) 678
CITATOR INFO:
RF 1987 SC1140 (3) R 1988 SC1531 (152)
ACT:
Code of Criminal Procedure, s. 527--Supreme
Court's power to transfer cases from one State to another--Power whether
inconsistent with s. 7(2) of the Prevention of Corruption Act, (Act 2 of
1947)--Case triable before special judge of area within which offence
committed, whether can be transferred outside such area.
HEADNOTE:
The petitioner was a member of an All India
Service serving in the State of Rajasthan. The State Government ordered his
trail before the Special Judge of Bharatpur under s. 120B/161 of the Indian
Penal Code and s. 5(1) (a) (d) and s. 5(2) of the Prevention of Corruption Act.
He moved the Supreme Court under s. 527 of the Code of Criminal Procedure
praying for the transfer of his case to another State, on various grounds. On
behalf of the State it was contended that the Supreme Court could not exercise
its powers under s. 527 of the Code of Criminal Procedure in the matter because
s. 7(1) of the Prevention of Corruption Act required the offences in question
to be tried by a special judge only, and s. 7(2) of the Act required the
offence to be tried by a Special Judge for the area within which they were
committed which condition could never be satisfied if there was a transfer.
HELD : (i) The condition in sub-section (1) of
s. 7 of the Prevention of Corruption Act that the case must be tried by special
judge is a sine qua non for the trial of offences in Section 6. This condition
can be satisfied by transferring the case from one special judge to another
special Judge. [684 B] Sub-section (2) of s. 7 merely distributes work between
special judges appointed in a State with reference to territory. This Provision
is on a par with the section of the Code of Criminal Procedure which confer
territorial jurisdiction on Sessions Judges and Magistrates. An order of
transfer by the very nature of things must sometimes result in taking the case
out of the territory. [685 D] (ii) The third sub-section of s. 8 of the Act
preserves the application ,of any provision of the Code, of Criminal Procedure
if it is not inconsistent with the Act save as provided in the first two
sub-sections of that section.
Section 527 of the Code therefore remains
applicable; if it is not inconsistent with s. 7(2) of the Act. There is no
inconsistency between s. 527 of the Code and s. 7(2) of the Act because the
territorial jurisdiction created by the latter operates in a different Sphere
and under different circumstances. Inconsistency can only be found if two provisions
of law apply in identical circumstances, and create contradictions. Such a
situation does not arise when either this Court or the High Court exercises the
power of transfer. Therefore this Court in exercise of its jurisdiction and
power under s. 527 of the Code can transfer a case from a special judge
subordinate to one High Court to another special judge subordinate to another
High Court [685 E] Ramchandra Prasad v. State of Bihar, A.I.R. 1961 S.C. 129,
referred to, 679 (iii) On merits however the petition in the present case could
not succeed. There was nothing in it which would show that there was any
interference direct or indirect with the investigation of the offences alleged
against the petitioner or the trial of the case by the special judge. A general
feeling that some persons are hostile to the petitioner is not sufficient. The
Court has further to see whether the apprehension is reasonable. [686 H]
ORIGINAL JURISDICTION: Transfer Petition No.
7 of 1965.(Under Section 527 of Criminal Procedure Code).
T. R. Bhasin, for the petitioner.
G. C. Kasliwal, Advocate-General for the
State of Rajasthan, K. K. Jain and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
Hidayatullah, J. This is a petition under S. 527 of the Code of Criminal
Procedure for the transfer of a criminal case (No. 2 of 1964-state v. Gurcharan
Dass Chadha I.P.S.) which is pending in the Court of the Special Judge,
Bharatpur, Rajasthan to another criminal court of equal or superior
jurisdiction subordinate to a High Court other than the High Court of
Rajasthan. The petitioner is the accused in that case and he is being tried
under ss. 120B/161, Indian Penal Code and S. 5(1)(a)(d) and 5`2) of the
Prevention of Corruption Act.
prosecution has been sanctioned by the
Government of India. In December, 1962, he was serving as Superintendent of
Police and was selected to be Commandant of 8th Batallion of Rajasthan Armed
Constabulary. He avers that he took over as Commandant on January 7, 1963 but
was placed under suspension the same day and a case was registered on January
12, 1963 which has resulted in the present prosecution against him. The
petitioner apprehends for reasons to be stated presently that he is not likely
to get a fair, just and impartial trial in the State of Rajasthan owing to the
hostility and influence of the then Law Minister who was also Minister incharge
of Home Department of the State, the Additional Inspector General of Police,
Anti-Corruption, and the Deputy Inspector General of Police, Ajmer Range,
Jaipur.
In support of his petition he has referred to
many incidents and filed many documents. He has sworn an affidavit that he
entertains an apprehension that these persons would interfere with the trial of
the case in the State of Rajasthan and that a transfer of the case outside the
State is in the interest of justice.
680 The State Government has opposed the
application strenu.
ously and has questioned the jurisdiction of
this Court to transfer under the powers conferred on it by s.. 527 Code of
Criminal Procedure a case made over by the Government of the State of Rajasthan
for trial to a Special Judge under the Criminal Law Amendment Act, 1952 (Act 46
of 1962). In addition, the State Government joins issue on the facts alleged
and the merits of the claim for the transfer of the case.
While this petition was pending the State
Government served the petitioner with a notice and a charge-sheet to show cause
why he should not be proceeded against for breach of Rule No. 8 of the All
India Services (Conduct) Rules, 1954, because he had communicated
"directly/indirectly official documents and information to Government
servants/other persons to whom he was not authorised to communicate such
documents/information" as indicated and detailed in a statement of
allegations accompanying the notice and the charge. The State Government has
appended to this charge two appendices giving details of 31 and 16 documents
respectively, which were said to have been so communicated by the petitioner to
his counsel Messrs. R. K. Rastogi and D. P. Gupta, Advocates of Jodhpur and
others named as "non-petitioners" in a writ petition which he had
filed in the High Court of Rajasthan (No. 794 of 1964) and which he
subsequently withdrew on December 23, 1964 before taking action to file the
present petition. The notice, the charge and the statement of allegations
accompanying them were signed by Mr. Vishnu Dutt Sharma, Special Secretary to
Government. On receiving this charge, the petitioner moved another petition in
this Court for taking action against Mr.
Shrama and the Government of Rajasthan for
contempt of this Court. At an earlier hearing, where we were considering the
petition for transfer, the other petition was brought to our notice and we were
about to order issuance of notices to the contemners but the Advocate General
of the Government of Rajasthan took notice of the petition and offered to take
action in respect thereof. As a result the State of Rajasthan through the Chief
Secretary to the Government and Mr. Sharma separately filed their replies to the
second petition and attempted justification. Mr. Sharma abjured knowledge of
the contents of the petition for transfer and denied any malice, ill-will or
grudge, pleading good faith.
The matter would have received serious
attention from us but for the fact that at the next hearing the plea for
justification was abandoned and an unconditional apology was entered on behalf
of the State Government as well as Mr. Sharma. The latter was present in Court
and expressed regret for what had. happened.
681 We accepted the appology and do not,
therefore feel called upon to consider the plea of justification which, in any
event, is not a plea heard in bar when contempt is clear and manifest. There
could be no question in the present case that by charging the petitioner with
proceedings of a different kind there was, if not direct, at least indirect
pressure brought upon him in the prosecution of his petition for. transfer. Of
this we would have taken serious note because it was likely to have hampered
the petitioner in prosecuting his petition freely before this Court and would
have resulted in obstruction of administration of justice.
If the petitioner was guilty of any lapse
under the Services (Conduct) Rules or even guilty of an offence the action to
which he would be otherwise subject could wait till the present proceedings had
terminated and there was really no reason to hurry with a charge against the
petitioner which charge would have put him under duress of some kind. Such a
course of action 'is to be deprecated and we are glad to note that the
Government of Rajasthan and the Secretary concerned have seen the matter in
this light and have made amends by proper contrition. We do not feel called
upon to say more than this on the petition for contempt which shall be filed.
We shall now take up the objection that this
Court lacks jurisdiction to transfer the case pending before the special Judge,
Bharatpur. This objection goes to the root of the matter. Questions of inherent
jurisdiction must always be decided before the merits are considered because to
dismiss the petition after consideration of merits itself involves an
assumption of jurisdiction. We must accordingly consider the objection even
though we are satisfied that-the petition must fail on merits.
The power which the petitioner is invoking
flows from s. 527 of the Code of Criminal Procedure. The first two sub-sections
of that section are material here and they read:
"527. 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 682 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, be supported by affidavit or affirmation.
It is conceded by the Advocate General that
the power to transfer criminal cases as laid down in the section is ordinarily
available but he contends that a case assigned by the State Government under
the Criminal Law Amendment Act, 1952 to a special Judge cannot be transferred
at all because under the terms of that Act, which is a self-contained special
law, such a case must be tried by the special Judge designate only. The
argument is extremely plausible but does not bear close scrutiny. To understand
the argument and how it is refuted certain provisions of the Act may be seen.
The first section of the Act gives the short title of the Act. Sections 2 and 3
of the Act introduce changes in the Indian Penal Code by increasing the
punishment in s. 165 and by inserting S. 165A which provides for punishment for
abetment of offences defined in ss. 161 and 165. Sections 4 and 5 of the Act
make some amendments in s. 164 of the Indian Penal Code and s. 337 of the Code
of Criminal Procedure. These four sections have been repealed by the Repealing
and Amending Act, 1957 as they were no longer necessary. The sections which we
have to consider are ss.
6, 7 and 8 of the Act. Section 6 confers
power on the State Government to appoint special Judges for the trial of
certain offences. The parts relevant to our purpose read "6. Power to
appoint special judges.
(1) The State Government may, by notification
in the official Gazette, appoint as many special Judges as may be necessary for
such area, or areas as may be specified in the notification to try the
following offences, namely :(a) an offence punishable under section 161,
section 162, section 163, section 164, section 165, or section 165-A of the
Indian Penal Code (Act XLV of 1860), or sub-section (2) of section 5 of the
Prevention of Corruption Act, 1947 (11 of 1947) (b) Any conspiracy to commit or
any attempt to commit or any abetment of any of the offences specified in
clause (a).
683 Section 7 next provides what cases shall
be tried by special Judges. The first two sub-sections read :
"7. Cases triable by special Judges.
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the
offences specified in sub-section (1) of section 6 shall be triable by special
Judges only.
(2) Every offence specified in subsection (1)
of section 6 shall be tried by the special Judge for the area within which it
was committed, or where there are more special Judges than one for such area,
by such one of them as may be specified in this behalf by the State
Government." The procedure which the special Judge has to follow is laid
down in s. 8 (1) and by sub-section (2) of the same section certain powers are
confered on the special Judge. Subsection (3) then provides:
"8. Procedure and Powers of Special
Judges.
(1)....................................
(2)....................................
(3) Save as provided in sub-section (1) or
sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall
so far as they are not inconsistent with this Act, apply to the proceedings
before a special Judge; and for the purposes of the said provisions, the Court
of the Special Judge shall be deemed to be a Court of Session trying cases
without a jury or without the aid of assessors and the person conducting a
prosecution before a special Judge shall be deemed to be a public prosecutor.
. . . . . .
. . . . . .
There is no need to refer to other provisions
of the Act which do, not bear upon this matter.
The Advocate General, Rajasthan in opposing
the petition relies, principally on the provisions of s. 7(1) and (2) and
contends that the two sub-sections create two restrictions which must be read
together. The first is that offences specified in s. 6(1) can be tried by
special Judges only.
The second is that every such offence shall
be tried by the special Judge for the area within which it is committed and if
there are more special Judges in that area, by the 684 special Judge chosen by
Government. These two conditions, being Statutory, it is submitted no order can
be made under S. 527 be because on transfer, even if a special Judge is
entrusted with the case, the second condition is bound to be broken.
No doubt sub-section (1) of s. 7 lays down
that the trial of an offence specified in sub-section (1) of s. 6 must be by a
special Judge only but that condition can be fully met by transferring the case
to another special Judge.
Indeed section itself contemplates that the
transfer should be to a court of equal or superior jurisdiction and we presume
that there are special Judges in every State of India. The selection of a
special Judge causes no difficulty. It is the second condition which is really
pleaded in bar. The provision of sub-section (2) of s. 7 is that an offence
shall be tried by the special Judge for the area within which it is committed.
This condition, if literaly understood would
lead to the conclusion that a case once made over to a special Judge in an area
where there is no other special Judge, cannot be transferred at all. This could
hardly have been intended.
If this, were so, the power to transfer a
case intrastate under s. 526 of the Code of Criminal Procedure, on a parity of
reasoning, must also be lacking. But this Court in Ramchandra Prasad v. State
of Bihar(1) upheld the transfer of a case by the High Court which took it to a
special Judge who had no jurisdiction in the area where the offence was
committed. In holding that the transfer was valid this Court relied upon the
third sub-section of s. 8 of the Act.
That sub-section preserves the application of
any provision of the Code of Criminal Procedure if it is not inconsistent with
the Act, save as provided in the first two sub-sections of that section. The
question, therefore, resolves itself to this : is there an inconsistency
between s. 527 of the Code and the second sub-section of s. 7 ? The answer is
that there is none Apparently this Court in the earlier case found no
inconsistency and the reasons appear to be these :
The condition that an offence specified in s.
6(2) shall be tried by a special Judge for the area within which it is
committed merely specifies which of several special Judges appointed in the
State by the State Government shall try it.
The provision is analogous to others under
which the jurisdiction of Magistrates and Sessions Judges is determined on a
territorial basis. Enactments in the Code of Criminal Procedure intended to
confer territorial jurisdiction upon courts and Presiding Officers have never
been held to stand in the way of transfer of criminal cases outside those areas
of territorial jurisdiction. The (1) [1962] 2 S.C.R. 50.
685 order of transfer when it is made under
the powers given by the Code invests another officer with jurisdiction although
ordinarily he would lack territorial jurisdiction to try the case. The order of
this Court, therefore, which transfer a case from one special Judge subordinate
to one High Court to another special Judge subordinate to another High Court
creates jurisdiction in the latter in much the same way as the transfer by the
High Court from one Sessions Judge in a Session Division to another Sessions
Judge in another Session Division.
There is no comparison between the first
sub-section and the second sub-section of s. 7. The condition in the second
sub-section of S. 7 is not of the same character as the condition in the first
sub-section. The first sub-section creates a condition which is a sine qua non
for the trial of certain offences. That condition is that the trial must be
before a special Judge and laye emphasis on the fact that trial must be before
a special Judge appointed for is on a par with the distribution of work
territorially between different Sessions Judges and Magistrates. An order of
transfer, by the very nature of things must, sometimes, result in taking the
case out of the territory and the provisions of the Code which are preserved by
the third subsection of S. 8 must supervene to enable this to E be done and the
second sub-section of s, 7 must yield. We do not consider that this creates any
inconsistency because the territorial jurisdiction created by the second
sub-section of s. 7 operates in a different sphere and under different
circumstances. Inconsistency can only be found if two provisions of law apply
in identical circumstances and create contradictions. Such a situation does not
arise F when either this Court or the High Court exercises its powers of
transfer. We are accordingly of the opinion that the Supreme Court in exercise
of its jurisdiction and power under s. 527 of the Code of Criminal Procedure
can transfer a case from a special Judge subordinate to one High Court to
another special Judge subordinate to another High Court.
This brings us to the question of the merits
of the petition. The petitioner is being prosecuted for offences under s.
120B/161 of the Indian Penal Code and s. 5(1)(a)(d) and 5(2) of the Prevention
of Corruption Act. His apprehension is that the case against him is H the
result of the machination of two Police Officers and one Mr. Mathura Dass
Mathur who was the Home Minister in 1962.He also alleges hostility on the part
of the State Government.
He has given instances which in his opinion
prove that the above two 686 officers, the Home Minister and the State
Government are hostile to him. In relation to the State Government he has
alleged that when he was appointed Commandant of the 8th Battallion of
Rajasthan Armed Constabulary the State Government down-graded his post,
otherwise he would have received a higher starting pay. He also alleges that
his suspension and prosecution were made to coincide With his assumption of new
duties so that he might not be able to join his new post. With regard to the
Home Minister the petitioner has given five instances in which he apparently
crossed the minister's path and gave him room for annoyance. In regard to the
two Police Officers he has averred that the Deputy Inspector General of Police,
Ajmer Range (Hanuman Prasad Sharma) and he had some differences on three
occasions. He has also given similar instances of hostility towards him
entertained by Sultan Singh, Deputy Inspector General of Police. On the basis
of these he says that he entertains an apprehension that he will not receive
justice in the State of Rajasthan. The law with regard to transfer of cases is
well-settled. 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. 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. It is one of the
principles of the administration of justice that justice should not only be
done but it should be seen to be done. However, a mere allegation that there is
apprehension that justice will not be done in a given case does not office. The
Court has further to see whether the apprehension is reasonable or not. To
judge of 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 reasonable apprehension.
Applying these principles it may be said that
there is a possibility that the petitioner entertains an apprehension that
certain persons are hostile to him but his apprehension that he will not
receive justice in the State of Rajasthan is not in our opinion reasonable. All
the facts which he has narrated bear upon past events in his official life.
Nothing has been said which will show that
there is in any manner an interference direct or indirect with the
investigation of the offences alleged against him or the trial of the case
before the special Judge, Bharatpur. A general feeling that some persons are
hostile to the petitioner is not sufficient. There must be material 687 from
which it can be inferred that the persons who are so hostile are interfering or
are likely to interfere either directly or indirectly with the course of
justice. Of this there is no trace either in his petition or in the arguments
which were advanced before us. Nor does the petitioner allege anything against
the special Judge who is trying the case. In this view of the matter we decline
to order transfer of the case from the special Judge, Bharatpur. The petition
accordingly fails and will be dismissed.
Petition dismissed.
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