Nahar Singh Yadav
& ANR. Vs Union of India & Ors.
ORDER
D.K. JAIN, J.:
1.
The
short question raised by the Central Bureau of Investigation (for short
"the CBI"), Anti Corruption Branch, Ghaziabad in their affidavit dated
15th July 2010, for our consideration is whether or not the trial arising out
of the charge sheet filed by the CBI in Case RC- 1(A)/2008/CBI/ACB/Ghaziabad
and the local police, Ghaziabad in Case Crime No.152/2008 PS Kavi Nagar,
Ghaziabad deserves to be transferred from the Court of Special Judge, CBI at
Ghaziabad to some other court of competent jurisdiction, preferably at Delhi
under the jurisdiction of the High Court of Delhi, with a direction to the
Trial Court to conduct the trial of the case on a day to day basis, and to
complete it within a period of two years.
2.
Since
the case, commonly known as "the Ghaziabad P.F. Scam", giving rise to
the afore-stated prayer, involves violation of the standards of judicial
behaviour, which is expected to be of the highest order, be it on or off the
Bench, we feel concerned by the alleged events and have given our anxious
consideration to the issue raised. In order to appreciate the controversy, a
few material facts may be noticed. These are: Pursuant to and in furtherance of
the findings of the Vigilance Department of the High Court of Judicature at
Allahabad and subsequent authorisation given by the High Court, Case Crime
No.152/2008 under Sections 409, 420, 467, 468, 471, 477-A, 120-B of the Indian
Penal Code,1860 (for short "the IPC") and Sections 8, 9, 13(2) read
with Sections13(1)(d) and 14 of the Prevention of Corruption Act, 1988 (for
short "the Act") was registered at PS Kavi Nagar, Ghaziabad on the
written complaint of Smt. Rama Jain, Special Judge and Vigilance Officer,
District Court, Ghaziabad on 15th February 2008 against one late Ashutosh
Asthana, the then Central Nazir, District Court, Ghaziabad and 82 other accused
persons which included 13 Class-III employees, 30 Class-IV employees of
District Court, Ghaziabad and 39 outsiders. It was alleged that late Ashutosh Asthana
in collusion with other accused named in the FIR fraudulently withdrew huge
sums of money in the name of GPF of Class-IV employees of District Court,
Ghaziabad. Subsequently, the present special leave petition was filed with are quest
to transfer the investigation of Case Crime No.152 of 2008, PS Kavi Nagar,
Ghaziabad to the CBI. During pendency of the proceedings, Government of Uttar
Pradesh issued a Notification dated 10th September2008, under Section 6 of the
Delhi Special Police Establishment Act, 1946(for short "the DSPE
Act") for the transfer of above mentioned case to the CBI, which was also
placed before this Court for consideration. Vide order dated 23rd September
2008, this Court transferred the investigation in the said case to CBI, inter
alia, observing that "It is made clear that though we have directed the
matters to be listed after three months, the CBI, shall be free to file the
final report or charge sheet, as the case may be at an earlier point of time
and to proceed thereafter in accordance with law. The court before which the
final report or charge sheet is filed shall deal with the report or charge sheet,
as the case may be, as required in law." In view of the aforesaid order of
this Court, the instant case was registered by the Anti Corruption Branch, CBI,
Ghaziabad as Case RC-1(A)/2008/CBI/ACB/Ghaziabad against late Ashutosh Asthana
and 82 other accused persons on 1st October 2008.
3.
The
CBI filed periodical status reports in this Court with regard to the progress
made in the investigations from time to time. Ultimately, the final report was
filed by the CBI on 30th July 2010. According to the final report, the
investigations had revealed that during the period 2001- 2008, late Ashutosh
Asthana while working as Bill Clerk and Central Nazir, District Court,
Ghaziabad, by abusing his official position as public servant entered into a
criminal conspiracy with 6 District Judges/In charge District Judge and 71
others with the intent to cheat the District Courts, Ghaziabad/Government of
U.P., fraudulently and dishonestly withdrew over `6 Crores from the District
Treasury as GPF withdrawals, creating fake/forged documents for withdrawing
money in the name of GPF of Class-IV employees using them as genuine, thereby causing
a loss of over `6 Crores to the Government Exchequer and corresponding gains to
themselves. According to the report, a charge sheet under Section 120-B read
with Sections 420, 467, 468 and 471 of the IPC and Section 13(2) read with
Section 13(1)(d) of the Act against accused persons, as named in the charge sheet,
has been filed in the Court of Special Judge, CBI, Ghaziabad on 3rd July 2010.
4.
In
the affidavit under consideration, filed by the CBI, it is stated that there is
an immediate need to transfer the trial of the case to any other place outside
the State of U.P., preferably Delhi, for the following reasons:
i.
Chargesheet
has been filed against 6 former District Judges of Ghaziabad, 3 of whom were
later elevated as Judges of the Allahabad High Court and 48 Class-III and
Class-IV employees of District Court, Ghaziabad. All these persons and their
close associates have been working in the District Court, Ghaziabad for many
years and have close contacts with various Judges and Magistrates, who remained
posted in Ghaziabad and other Districts of U.P.;
ii.
ii)
The Special Judge, CBI, in whose court, charge sheet has been filed, had also
worked with/under some of the charges heated judicial officers in the past;
iii.
Smt.
Rama Jain, former Special Judge, CBI, Ghaziabad is the complainant in the case
and is currently serving as Additional District Judge, District Farrukhabad,
U.P.;
iv.
13
Judicial Officers and more than 25 employees of District Court, Ghaziabad have
been cited as prosecution witnesses in the case, whose testimony would be
crucial to establish the criminal cases against the charge sheeted accused persons.
v.
The
court of Special Judge, CBI, Ghaziabad is already over-burdened with the trial
of about 175 cases including the sensitive Nithari killings cases, which are
being tried on a day to day basis on the directions of Allahabad High Court.
5.
Subsequently,
another affidavit was filed by the CBI, pointing out certain subsequent
developments, warranting transfer of the trial from Ghaziabad.
6.
Vide
order dated 4th August 2010, notice was issued to all the accused named in the
charge sheet to show cause as to why the trial should not be transferred from
the Court of Special Judge, CBI at Ghaziabad to some other competent court,
preferably under the jurisdiction of the Delhi High Court. In response, affidavits
have been filed on behalf of accused Nos.1,4,5,6,8,15,19,20,55 and some other
accused. All the named accused have objected to the transfer of the trial from
Ghaziabad to any other place on diverse grounds.
7.
We
have heard Mr. G.E. Vahanvati, learned Attorney General appearing for the CBI
and learned counsel appearing on behalf of the objectors - accused at some
length.
8.
Mr.
G.E. Vahanvati, learned Attorney General, submitted that it is a settled
principle that justice should not just be done, but should also be seen as
being done, and in view of the fact that some of the named accused happen to be
ex-judges/administrative judges, there would be reasonable apprehension in the
mind of the public at large that the trial judge, being their former colleague,
may be biased in favour of the accused and, therefore, the peculiar
circumstances of the case warrant that in the interests of justice the trial be
shifted to a neutral venue. Learned counsel further submitted that the
paramount consideration which should weigh with the Court while considering an
application for transfer is that public's faith in the judiciary should be
maintained, and given the gravity of the allegations, in the present case, it
would be expedient to transfer the trial to a Special Judge in Delhi.
9.
Mr.
Prashant Bhushan, learned counsel appearing on behalf of the petitioners (in
SLP (C) No. 12981 of 2008), contended that mere inconvenience of the accused
cannot be the ground for rejecting the application for transfer, especially in
a case like the present one, where there is a serious apprehension that the trial
may not be free and fair because of the past association between the accused,
witnesses and the trial judge.
10.
Per
contra, learned counsel appearing on behalf of some of the accused contended
that Section 406(2) of the Code of Criminal Procedure, 1973 (for short
"the Cr.P.C.") provides that an application for transfer can be moved
only by an interested party, and therefore, the CBI which is the investigating
agency cannot be said to be an interested party within the meaning of the said
provision and entitled to move such an application for transfer of the trial.
Commending us to the decision of this Court in A.R. Antulay Vs. R.S. Nayak
& Anr.1, learned counsel contended that the power to enlarge the
jurisdiction of a Special Judge under Section 4 of the Act is legislative in
nature, and therefore, an application under Section 406 of the Cr.P.C. is misconceived.
It was next contended that none of the named accused are holding a judicial
office, and therefore, there is no reason to believe that they will influence
the witnesses, especially when 13 witnesses are themselves judicial officers.
It was argued that if the sole ground for transfer is the fact that the
witnesses might be influenced because of the past status of some of the
accused, the location of the trial has no bearing in that regard. It was
stressed that transfer of trial would cause great hardship to the accused
persons, as they would have to re-locate themselves to Delhi, far away from1 (1988)
2 SCC 602 Lucknow or Allahabad, where they are residing after retirement and engage
new counsel for their defence.
11.
Mr.
Vishwajit Singh, learned counsel, appearing for 34 Class III and IV employees
who have been named as accused, contended that the transfer of trial would
cause immense hardship to the accused, who would not only have to travel long
distances but will also have to engage expensive lawyers in Delhi. Learned
counsel also contended that the CBI has not produced any evidence, much less
credible material in support of its apprehension that there would be a
miscarriage of justice if the trial is held at Ghaziabad.
12.
Before
adverting to the main issue, viz. whether it would be desirable to transfer the
trial from Ghaziabad, we shall deal with the preliminary objection raised on
behalf of some of the accused about the locus standi of the CBI in preferring
the application for transfer of trial. In order to appreciate the contention of
the objectors-accused persons, in relation to the capacity of the CBI to move
an application for transfer of the instant case, it would be expedient to refer
to Section 6 of the DSPE Act, which reads as: "Consent of State Government
to exercise of powers and jurisdiction. Nothing contained in Section 5 shall be
deemed to enable any member of the Delhi Special Police Establishment to
exercise powers and jurisdiction in any area in a State, not being a Union
Territory or Railway area, without the consent of the Government of that
State."
13.
It
is manifest that by operation of Section 6 of the DSPE Act, once a State
Government issues notification transferring the investigation to the CBI, for
all intents and purposes, the CBI is entitled to exercise the same powers as
the State police, in relation to the investigation transferred to it. As a
necessary corollary, in light of the current structure and status of the CBI,
it is manifest that the CBI steps into and assumes the role of the prosecuting
agency for that particular case.
14.
Section
406(2) of the Cr.P.C. provides that the Supreme Court may exercise power under
sub-section (1) thereof only on an application in that behalf by either the
Attorney General for India or the Advocate General of a State or a party
interested.
15.
A
criminal trial is a judicial examination of evidence with the object of punishing
the offenders on a proper proof of relevant facts, the core question being the
guilt or innocence of the accused. Given the pivotal role accorded to the
prosecuting agency in a criminal trial, we are unable to hold that the CBI is
not an interested party for the purposes of Section 406(2) of the Cr.P.C.
16.
We
are of the opinion that once a notification has been issued by a State Government
under Section 6 of the DSPE Act, the CBI assumes the role of an investigating
agency and as afore-stated the CBI is also invested with the role of the
prosecuting agency in relation to that particular case, and therefore, it is
entitled to move an application under Section 406(2) of the Cr.P.C.
Accordingly, the preliminary objection is rejected.
17.
Reverting
to the main issue, a true and fair trial is sine qua non of Article 21 of the
Constitution, which declares that no person shall be deprived of his
"life" or "personal liberty" except according to the
procedure established by law. It needs no emphasis that a criminal trial, which
may result in depriving a person of not only his personal liberty but also his life
has to be unbiased, and without any prejudice for or against the accused. An
impartial and uninfluenced trial is the fundamental requirement of a fair
trial, the first and the foremost imperative of the criminal justice delivery
system. If a criminal trial is not free and fair, the criminal justice system
would undoubtedly be at stake, eroding the confidence of a common man in the
system, which would not augur well for the society at large. Therefore, as and
when it is shown that the public confidence in the fairness of a particular
trial is likely to be seriously undermined, for any reason whatsoever, Section
406 of the Cr.P.C. Empowers 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, to meet the ends of justice. It is, however, the trite law
that power under Section 406 of the Cr.P.C. has to be construed strictly and is
to be exercised sparingly and with great circumspection. It needs little
emphasis that a prayer for transfer should be allowed only when there is a well-substantiated
apprehension that justice will not be dispensed impartially, objectively and
without any bias. In the absence of any material demonstrating such
apprehension, this Court will not entertain application for transfer of a trial,
as any transfer of trial from one State to another implicitly reflects upon the
credibility of not only the entire State judiciary but also the prosecuting agency,
which would include the public prosecutors as well.
18.
In
Zahira Habibulla H. Sheikh Vs. State of Gujarat & Ors.2, while explaining
the import of the expression "fair trial", this Court had observed
that: "Fair trial obviously would mean a trial before an impartial judge,
a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the witnesses, or the cause
which is being tried is (2004) 4 SCC 158 12 eliminated. If the witnesses get
threatened or are forced to give false evidence that also would not result in a
fair trial. The failure to hear material witnesses is certainly denial of fair trial."
19.
In
Maneka Sanjay Gandhi & Anr. Vs. Rani Jethmalani, speaking for a bench of
three learned Judges of this Court, V.R. Krishna Iyer, J. said: "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 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. We have to test the petitioner's grounds on this
touchstone bearing in mind the rule that normally the complainant has the right
to choose any court having jurisdiction and the accused cannot dictate where
the case against him should be tried. Even so, the process of justice should
not harass the parties and from that angle the court may weigh the
circumstances."
20.
In
Abdul Nazar Madani Vs. State of T.N. & Anr.4, dealing with a similar application,
this Court had echoed the following views: "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 3 (1979) 4 SCC
167 4 (2000) 6 SCC 204 13 appropriate court may transfer the case to another
court where it feels that holding of fair and proper trial is conducive. No universal
or hard and fast rules can be prescribed for deciding a transfer petition which
has always to be decided on the basis of the facts of each case. Convenience of
the parties including the witnesses to be produced at the trial is also a
relevant consideration for deciding the transfer petition. The convenience of
the parties does not necessarily mean the convenience of the petitioners alone
who approached the court on misconceived notions of apprehension. Convenience
for the purposes of transfer means the convenience of the prosecution, other
accused, the witnesses and the larger interest of the society."
21.
In
K. Anbazhagan Vs. Superintendent of Police & Ors.5, this Court had an
occasion to deal with the prayer for transfer of a criminal trial from Tamil
Nadu to another State mainly on the ground of apprehension of political
interference in the trial. While finally directing the transfer of the case to
the State of Karnataka, the Court observed thus: "Free and fair trial is
sine qua non of Article 21 of the Constitution. It is trite law that justice
should not only be done but it should be seen to have been done. If the
criminal trial is not free and fair and not free from bias, judicial fairness
and the criminal justice system would be at stake shaking the confidence of the
public in the system and woe would be the rule of law. It is important to note
that in such a case the question is not whether the petitioner is actually
biased but the question is whether the circumstances are such that there is a reasonable
apprehension in the mind of the petitioner." 5 (2004) 3 SCC 767
22.
Recently,
in Captain Amarinder Singh Vs. Parkash Singh Badal & Ors.6, while dealing
with two transfer applications preferred under Section 406 of the Cr.P.C. on
the ground that with the change in State Government, the trial was suffering
setback due to the influence of the new Chief Minister as also the lack of
interest by the Public Prosecutor, P. Sathasivam, J., speaking for a
three-judge Bench has observed thus: "18. 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 the apprehension alleged is reasonable or not.
The apprehension must not only be entertained but must appear to the court to
be a reasonable apprehension. 19. 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
CrPC. 20. 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.6 (2009)
6 SCC 260 The apprehension must appear to the court to be a reasonable one."
23.
In
R. Balakrishna Pillai Vs. State of Kerala7, while rejecting a prayer for transfer
which was made on the ground that one of the Judges hearing the appeal had
previously appeared as an advocate in a commission enquiring into an allegation
of misconduct against the petitioner in another matter, this had Court observed
as under: "The charges against him are altogether for a different case not
connected with the rectification work of Edamalayar Project. Secondly, a Judge
while practising as an advocate might have appeared in a number of cases, but
that would not mean that he would have any personal interest or connection with
the said matters or with persons involved therein and would be biased towards
them. Therefore, it would be difficult to presume or to draw an inference that
the learned Judge, because of assisting the Commission of Inquiry as an
advocate in a different matter, would have bias or prejudice against the
petitioner and would not render justice in accordance with law. Acceptance of
such contention would seriously undermine the independence and stern stuff of
the Judges."
24.
Thus,
although no rigid and inflexible rule or test could be laid down to decide
whether or not power under Section 406 of the Cr.P.C. should be exercised, it
is manifest from a bare reading of sub-sections (2) and (3) of the said Section
and on an analysis of the decisions of this Court that an order of transfer of
trial is not to be passed as a matter of routine or (2000) 7 SCC 129 16 merely
because an interested party has expressed some apprehension about the proper
conduct of a trial. This power has to be exercised cautiously and in
exceptional situations, where it becomes necessary to do so to provide
credibility to the trial. Some of the broad factors which could be kept in mind
while considering an application for transfer of the trial are:-
i.
when
it appears that the State machinery or prosecution is acting hand in glove with
the accused, and there is likelihood of miscarriage of justice due to the lackadaisical
attitude of the prosecution;
ii.
when
there is material to show that the accused may influence the prosecution
witnesses or cause physical harm to the complainant;
iii.
comparative
inconvenience and hardships likely to be caused to the accused, the
complainant/the prosecution and the witnesses, besides the burden to be borne
by the State Exchequer in making payment of travelling and other expenses of
the official and non-official witnesses;
iv.
a
communally surcharged atmosphere, indicating some proof of inability of holding
fair and impartial trial because of the accusations made and the nature of the
crime committed by the accused; and
v.
existence
of some material from which it can be inferred that the some persons are so
hostile that they are interfering or 17 are likely to interfere either directly
or indirectly with the course of justice.
25.
Having
considered the rival claims of both the parties on the touchstone of the
afore-stated broad parameters, we are of the view that the apprehension
entertained by the CBI that the trial of the case at Ghaziabad may not be fair,
resulting in miscarriage of justice, is misplaced and cannot be accepted. From
the material on record, we are unable to draw any inference of a reasonable
apprehension of bias nor do we think that an apprehension based on a bald
allegation that since the trial judge and some of the named accused had been
close associates at some point of time and that some of the witnesses are
judicial officers, the trial at Ghaziabad would be biased and not fair,
undermining the confidence of the public in the system. While it is true that
judges are human beings, not automatons but it is imperative for a judicial
officer, in whatever capacity he may be functioning, that he must act with the
belief that he is not to be guided by any factor other than to ensure that he
shall render a free and fair decision, which according to his conscience is the
right one on the basis of materials placed before him. There is no exception to
this imperative. Therefore, we are not disposed to believe that either the
witnesses or the Special Judge will get influenced in favour of the accused
merely because some of them happen to be their former colleagues. As already
stated, acceptance of such allegation, without something more substantial,
seriously undermines the credibility and the independence of the entire
judiciary of a State. Accordingly, we out rightly reject this ground urged in
support of the prayer for transfer of trial from Ghaziabad.
26.
As
regards the plea that the Court of Special Judge, CBI, Ghaziabad is already
heavily over-burdened, in our opinion, that is again not a ground for transfer
of trial. If at all the said Court is over burdened, it will be open to the
High Court to request the State Government to create another Court of a Special
Judge at Ghaziabad and we are confident that having regard to the nature of the
case and the serious concern already shown by the State Government by issuing
Notification dated 10th September 2008 promptly and expeditiously, the State
Government will take appropriate steps in that behalf so that the guilty are
brought to book at the earliest not only in this case but in other sensitive
trials, stated to be pending in that Court, as well.
27.
For
the afore-stated reasons, as at present, we do not find any merit in the request
of the CBI for transfer of the trial from Ghaziabad to any other place.
Accordingly, the prayer is declined. The Trial Court is directed to proceed
with the case expeditiously.
..............................................J.
(D.K. JAIN, J.)
.............................................J.
(V.S. SIRPURKAR, J.)
..............................................J.
(G.S. SINGHVI, J.)
NEW
DELHI;
NOVEMBER
19, 2010.
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