Maneka Sanjay Gandhi & ANR Vs.
Rani Jethmalani [1978] INSC 239 (23 November 1978)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KAILASAM, P.S.
KOSHAL, A.D.
CITATION: 1979 AIR 468 1979 SCR (2) 378 1979
SCC (4) 167
CITATOR INFO:
R 1990 SC 113 (9)
ACT:
Petition for of transfer of Criminal
Proceedings under order XXXVI of Supreme Court Rules 1966 read with section 406
Criminal Procedure Code 1973-Central criterion and guidelines to be followed by
Courts, when a motion for transfer is made.
HEADNOTE:
HELD: 1. Assurance of a fair trial is the
first imperative of the dispensation of justice and the central criterion for
the Court to consider when motion four transfer is made is not the
hypersensitivity or relative convenience of a party or easy availability of legal
services or the like mini grievances. Something more substantial, more
compelling, more imperilling, from the point of view of public justice and its
attendant environment is necessitous, if the Court is to exercise its power of
transfer. This is the cardinal principle although the circumstances may be
myriad and vary from case to case.
courts must test the petitioner's grounds on
this touch- stone 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. Even so, the process of
justice should not harass the parties and from that angle the Court may weigh
the circumstances. [380F-H]
2. The meat of the matter, in a case of defamation
is something different than the common ground usually urged like the avoidance
of substantial prejudice to a party or witnesses on account of logistics or
like factors, especially when an alternative venue will not seriously handicap
the complainant and will mitigate the serious difficulties of the accused. The
main witnesses are those who speak to having read the offending matter and
other relevant circumstances flowing there from. [381A-B] In this case, the
witnesses belong to Bombay and the suggestion that Delhi readers may be
substitute witnesses and the complainant may consent herself with examining
such persons is too presumptuous for serious consideration. [381 C]
3. The sophisticated processes of a criminal
trial certainly require competent legal service to present a party's case. If
an accused person, for any particular reason, is virtually deprived of this
facility, an essential aid to fair trial fails. If in a certain Court the whole
Bar, for reasons of hostility or otherwise refuses to defend an accused
person-an extraordinary situation difficult to imagine, having regard to the
ethics of the profession-it may well be put forward as a ground which merits
the attention of the Supreme Court. Glib allegation like the services of an
efficient advocate may not be easy to procure involves a reflection on the
members of the Bar in Bombay and, therefore, is cannot be easily accepted
without in contestable testimony in that behalf which is absent in this case.
apart from the ipse dixit of the party; Popular frenzy or official wrath shall
not deter a member of the Bar from 379 offering his services to those who wear
unpopular names or unpalatable causes and the Indian advocate may not fail this
standard. [381C-E]
4. It is true that a detached atmosphere of a
fair and impartial judicial trial is a must. The tendency of toughs and street
roughs to violate the serenity of Court is obstructive of the course of justice
and must surely be stamped out. Likewise, the safety of the person of an
accused or complainant is an essential condition for participation in a trial
and where that is put in peril by commotion, tumult or threat on account of
pathological conditions prevalent in a particular venue, the request for a
transfer may not be dismissed summarily. It causes disquiet and concern to a
Court of justice if a person seeking justice is unable to appear present one's
case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the
Court to assure propitious conditions which conduce to comparative tranquility
at the trial. Turbulent conditions putting the accused's life in danger or
creating chaos inside the Court hall may jettison public justice. If this vice
is peculiar to a particular place and is persistent the transfer of the case
from that place may become necessary. Likewise, if there is general
consternation or atmosphere of tension or raging masses of people in the entire
region taking sides land polluting the climate, vitiating the necessary
neutrality to hold a detached judicial trial, the situation may be said to have
deteriorated to such an extent as to warrant transfer. [381 H, 382A-C] In the
instant case, none of the allegations made by the Petitioner. read in the
pragmatic light of the counter averments of the respondent and understood
realistically makes the contention credible that a fair trial is impossible.
[383A-B] G. X. Francis v. Banke Bihari Singh, A.I.R. 1958 SC 809 and 810;
referred to.
Observation :
The frequency of mobbing manouvres in Court
precincts is a bad omen for social justice in its wider connotation. Mob action
may throw out of the gear the wheels of the judicial process. Engineered fury
may paralyse a party's ability to present his case or participate in the trial.
If the justice system grinds to a halt through physical manouvres or sound and
fury of the senseless populace, the rule of law runs aground. Even the most
hated human anethema has a right to be heard without the rage of ruffians or
huff of toughs being turned against him to unnerve him as party or witness or
advocate. Physical violence to a party, actual or imminent, is reprehensible
when he seeks justice before a tribunal. Manageable solutions must not sweep
the Supreme Court off its feet into granting an easy transfer but
uncontrollable or perilous deterioration will surely persuade this Court to
shift the venue. It depends. [383D-F] Therefore (a) the trial Court should
readily consider the liberal exercise of its power to grant for the accused
exemption from personal appearance save on crucial occasions. [383G] (b) Where
tranquil Court justice is a casualty, the collapse of an constitutional order
is an inevitability. The Magistrate is the master 380 of the orderly conduct of
court proceedings and his authority shall not hang limp if his business is stalled
by brow-beating. It is his duty to clear the Court of confusion, yelling and
nerve-racking gestures which mar the serious tone of judicial heaving. The
officials whose duty is to keep the public peace shall, on requisition, be at
the command of the Court to help it run its process smoothly. When the
situation gets out of hand the remedy of transfer surgery may be prescribed
Every fleeting rumpus should not lead to a removal of the ease as it may prove
to be a frequent surrender of justice to commotion. The Magistrate shall take
measures to enforce conditions where the Court functions free and fair and
agitational our muscle tactics yield no dividends. [384A-C]
CRIMINAL ORIGINAL JURISDICTION: Transfer
Petition No. 96 of 1978.
Madan Bhatia and D. Gobardhan for the
Petitioner.
V. M. Tarkunde and Mrs. K. Hingorani for the
Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.- Mrs. Maneka Gandhi figures as an accused a prosecution
launched against her and others by Miss. Rani Jethmalani for an offence of
defamation in the Court of the Metropolitan Magistrate, Bombay. The former is
the editor of a monthly called "Surya" and is the wife of Shri Sanjay
Gandhi and daughter-in-law of Smt. Indira Gandhi, former Prime Minister. The latter
is a young advocate and is the daughter of a leading advocate and currently an
important Member of Parliament. The present petition has been made for a
transfer of the criminal case from Bombay to Delhi, and a string of grounds has
been set out to validate the prayer. We decline the transfer and proceed to
give our reasons without making the least reflection on the merits of the case.
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 easy availability of
legal services or like minigrievances. Something more substantial, more
compelling, more imperilling, from the point of view of public justice and its
attendant environment, is necessitous if the Court is to exercise its power of
transfer. This is the cardinal principle although the circumstances may. be
myriad and vary from case to case. We have to test the petitioner's grounds on
this touch-stone 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. Even so, the process of justice
should not harass the parties and from that angle the court may weigh the
circumstances.
381 One of the common circumstances alleged
in applications for transfer is the avoidance of substantial prejudice to a
party or witnesses on account of logistics or like factors, especially when an
alternative venue will not seriously handicap the complaint and will mitigate
the serious difficulties of the accused. In the present case the petitioner
claims that both the parties reside in Delhi and some formal witnesses belong
to Delhi; but the meat of the matter, in a case of defamation, is something
different. The main witnesses are those who speak to having read the offending
matter and other relevant circumstances flowing there from. They belong to
Bombay in this case and the suggestion of the petitioner's counsel that Delhi
readers may be substitute witness and the complainant may content herself with
examining such persons is too presumptuous for serious consideration.
Now to the next ground. The sophisticated
processes of a criminal trial certainly require competent legal service to
present a party's case. If an accused person, for any particular reason, is
virtually deprived of this facility, an essential aid to fair trial fails. If
in a certain court the whole Bar, for reasons of hostility or otherwise,
refuses to defend an accused person-an extra-ordinary situation difficult to
imagine, having regard to the ethics of the profession-it may well be put
forward as a ground which merits this Court's attention. Popular frenzy or
official wrath shall not deter a member of the Bar from offering his services
to those who wear unpopular names or unpalatable causes and the Indian advocate
may not fail this standard. Counsel has narrated some equivocal episodes which
seem to suggest that the services of an efficient advocate may not be easy to
procure to defend Mrs. Maneka Gandhi.
Such glib allegations which involve a
reflection on the members of the Bar in Bombay may not be easily accepted
without incontestible testimony in that behalf, apart from the ipse dixit of
the party. That is absent here. It is difficult to believe that a person of`
the position of the petitioner who is the daughter-in-law of the former Prime.
Minister, wife of a consequential person and,
in her own right, an editor of a popular magazine, is unable to engage a lawyer
to defend her, while, as a fact, she is apparently represented in many legal
proceedings quite competently.
A more serious ground which disturbs us in
more ways than one is the alleged absence of congenial atmosphere for a fair
and impartial trial. It is becoming a frequent phenomenon in our country that
court proceedings are being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial hearing with menaces,
noises and worse. This tendency of toughs and street roughs to violate the
serenity of court is obstructive of the course of justice 382 and must surely
be stamped out. Likewise, the safety of the person of an accused or complainant
is an essential condition for participation in a trial and where that is put in
peril by commotion, tumult or threat on account of pathological conditions
prevalent in a particular venue, the request for a transfer may not be
dismissed summarily. It causes disquiet and concern to a court of justice if a
person seeking justice is unable to appear, present one's case, bring one's
witnesses or adduce evidence. Indeed, it is the duty of the court to assure
propitious conditions which conduce to comparative tranquillity at the trial.
'Turbulent conditions putting the accused's
life in danger or creating chaos inside the court hall may jettison public
justice. If this vice is peculiar to a particular place and is persistent the
transfer of the case from that place may become necessary. Likewise, if there
is general consternation or atmosphere of tension or raging masses of people in
the entire region taking sides and polluting the climate, vitiating the
necessary neutrality to hold a detached judicial trial, the situation may be
said to have deteriorated to such an extent as to warrant transfer. In a
decision cited by the counsel for the petitioner, Bose, J.
Observed:
".... But we do feel that good grounds
for transfer from Jashpurnagar are made out because of the bitterness of local
communal feeling and the tenseness of the atmosphere there. Public confidence
in the fairness of a trial held in such an atmosphere would be seriously
undermined, particularly among reasonable Christians all over India not because
the Judge was unfair or biassed but because the machinery of justice is not
geared to work in the midst of such conditions.
The calm detached atmosphere of a fair and
impartial judicial trial would be wanting, and even if justice were done it
would not be "seen to be done".(1) Accepting this perspective we must
approach the facts of the pre sent case without excitement, exaggeration or
eclipse of a sense of pro portion. It may be true that the petitioner attracts
a crowd in Bombay. Indeed, it is true of many controversial figures in public
life that their presence in a public place gathers partisans for and against,
leading to cries and catcalls or 'Jais' or 'zindabads'. Nor is it unnatural
that some persons may have acquired, for a time a certain quality of
reputation, sometimes notoriety, sometimes glory, which may make them the
cynosure of popular attention when they appear in cities even in a court. And
when unkempt crowds press into a court hall it is possible that some pushing,
some nudging, some brash ogling or angry starting may occur in the rough and
rumble resulting in ruffled feelings (1) G.X. Francis v. Banke Bihari Singh,
A.I.R. 1958 S.C. 809 at 810.
383 for the victim. This is a far cry from
saying that the peace inside the court has broken down, that calm inside the
court is beyond restoration, that a tranquil atmosphere for holding the trial
is beyond accomplishment or that operational freedom for the Judge parties,
advocates and witnesses has ceased to exist. None of the allegations made by
the petitioner, read in the pragmatic light of the counter-averments of the
respondent and understood realistically, makes the contention of the counsel
credible that a fair trial is impossible. Perhaps, there was some rough weather
but it subsided, and it was a storm in the tea cup or transcient tension to
exaggerate which is unwarranted. The petitioner's case of great insecurity or
molestation to the point of threat to life is, so far as the record bears out,
difficult to accept. The mere word of an interested party is insufficient to convince
us that she is in jeopardy or the court may not be able to conduct the case
under conditions of detachment, neutrality or uninterrupted progress. We are
disinclined to stampede ourselves into conceding a transfer of the case on this
score, as things stand now.
Nevertheless, we cannot view with unconcern
the potentiality of a flare-up and the challenge to a fair trial, in the sense
of a satisfactory participation by the accused in the proceedings against her.
Mob action may throw out of gear the wheels of the judicial process. Engineered
fury may paralyse a party's ability to present his case or participate in the
trial. If the justice system grinds to a halt through physical manoeuvres or
sound and fury of the senseless populace the rule of E law runs aground. Even
the most hated human anathema has a right to be heard without the rage of
ruffians or huff or toughs being turned against him to unnerve him as party or
witness or advocate. Physical violence to a party, actual or imminent, is
reprehensible when he seeks justice before a tribual. Manageable solutions must
not sweep this Court off its feet into granting an easy transfer but
uncontrollable or perilous deterioration will surely persuade us to shift the
venue. It depends. The frequency of mobbing manouvres in court precincts is a
bad omen for social justice in its wider connotation. We, therefore, think it
necessary to make a few cautionary observations which will be sufficient, as we
see at present, to protect the petitioner and ensure for her a fair trial.
The trial court should readily consider the
liberal exercise of its power to grant for the accused exemption from personal
appearance save on crucial occasions. Shri Tarkunde, for the respondent fairly
agreed that it was the right thing to do and explained the special reason for
its first rejection. If the application is again made, the magistrate will deal
with it as we have indicated. This will remove much of the unsavoury
sensationalism which the hearing may suffer from 384 The magistrate is the
master of the orderly conduct of court proceedings and his authority shall not
hang limp if his business is stalled by brow-beating. It is his duty to clear
the court of confusion, yelling and nerve-racking gestures which mar the
serious tone of judicial hearing. The officials whose duty is to keep the
public peace shall, on requisition, be at the command of the court to help it
run its process smoothly. When the situation gets out of hand the remedy of
transfer surgery may be prescribed. Every fleeting rumpus should not lead. to a
removal of the case as it may prove to be a frequent surrender of justice to
commotion. The magistrate shall take measures to enforce conditions where the
court function free and fair and agitational or muscle tactics yield no
dividends. If that fails, the parties have freedom to renew their motion under
s. 406 of the Criminal Procedure Code. For, where tranquil court justice is a
casualty the collapse of our constitutional order is an inevitability.
We dismiss, for the nonce, this transfer
petition.
S.R. Petition dismissed.
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