Vikas Kumar Roorkewal
Vs State of Uttarakhand and others
JUDGMENT
J.M. Panchal, J.
1.
By
filing this petition under Section 406 of the Code of Criminal Procedure 1973
("The Code", for short), the petitioner, who is son of late Radhey
Shyam and who is also the first informant in the case relating to the murder of
his father, has prayed that the case titled as State Vs. Aakash Tyagi and
others being S.T. No. 6 of 2007pending in the Court of learned Additional
District Judge, Fast Track Court, Haridwar (Uttrakhand) arising out of crime
No. 182 of 2006 and FIR No.169 of 2006 be transferred to the Court of competent
jurisdiction at Delhi.
2.
The
background facts as projected by the petitioner in the instant petition are as
follows:-
Late Radhey Shyam was
initially appointed Executive Engineer in Irrigation Department of Uttar Pradesh.
In January, 2004 he was posted to look after a project known as Upper Ganga
Link Canal Project, under which two rivers, namely, Ganga and Yamuna were to be
linked. It is claimed that because of his excellent track record, efficiency
and honesty, he was promoted to the post of Superintending Engineer in
November, 2005 and was placed in charge of the said project, the total cost of which
was Rs.240 crores. The project was intended to solve the long standing
irrigation and drinking water problems of western U.P. and also to provide a
solution to control floods.
He was brutally
murdered in cold blood in broad day light in the afternoon of June 18, 2006 by three
persons at his residence located in his Camp 0fficeat Roor kee (Uttarakhand).
The petitioner, who claims to be an eye-witness, has stated that he had chased
the accused but they had escaped and, therefore, he had called the police and
reported the matter to the police immediately. The police on arrival at the
place of the incident had taken the deceased to the Government Hospital where
he was declared brought dead. On the basis of the information given by the
petitioner, the police had registered an FIR No. 169/2006 on 18.6.2006. On the
same day post mortem on the dead body of the deceased was conducted by the
medical officers, on the intervention of the District Magistrate
(Uttarakhand).The murder of Radhey Shyam, Superintending Engineer of U.P. had
sent shock waves throughout Uttarakhand and U.P and in the engineering and
bureaucratic community and the incident was widely reported in the newspapers.
3.
Because
of the high profile of the accused involved in the murder of the deceased
engineer, the Uttarakhand police was found to be incapable/ reluctant to
investigate the crime. Therefore, the State of Uttar Pradesh had directed the
Special Task Force along with Special Operation Group to investigate the murder
and to arrest the accused. It may be mentioned that the Special Task Force along
with Special Operation Group appointed to investigate the matter and to arrest
the accused had conducted large number of raids. All the arrests were made by
Special Task Force, Uttar Pradesh except one which was effected by the
Uttarakhand police on the information of Special Task Force, Uttar Pradesh.
4.
It
is mentioned by the petitioner that large scale corruption is prevailing in the
Irrigation Department and earlier two Junior Engineers were also murdered brutally.
It was reported that disputes concerning the contracts which were entrusted and
to be entrusted under the project had emerged as the main reason for the murders
of these engineers including that of late Radhey Shyam. The record shows that
after investigation, charge-sheet was filed and charges have been framed against
accused persons, who are respondent Nos. 2 to 9in the Transfer Petition, under
Section 302 read with Section 120B of the Indian Penal Code and Section3(2)(V)
of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act,
1989. The trial has commenced in the Court of learned Additional District Judge,
Fast Track Court, Haridwar (Uttarakhand) and by this time, one witness is
already examined.
5.
Grievance
of the petitioner is that continuously threats are being administered to his
family including him and other witnesses that they would meet the same fate as
that of the deceased, if they dare to depose before the Court. The petitioner
has mentioned that the first eye witness examined in the court, who was the
driver of the deceased, has turned hostile because of the threats given to him
and the learned Judge presiding over the trial could not do anything except
being a passive spectator. The petitioner claims that he along with his wife
was chased by the gang when they were en route to Haridwar to appear before the
court on May 25, 2007,and due to fear, they have not been able to appear before
the court on several dates.
6.
The
petitioner has mentioned that the other witnesses who are yet to be examined
are regularly receiving/getting summons calling upon them to remain present
before the court to tender testimony, but they are unable to appear and depose
before the Trial Court at Haridwar due to regular threats being administered to
them. It is also mentioned by the petitioner that his mother on account of fear
and threats has already left Roorkee and is staying with brother of the
petitioner in Delhi and is thus unable to depose before the court at Haridwar.
What is claimed by the petitioner is that due to the threats received by him,
he and his wife who are material witnesses have also started residing at Delhi.
7.
The
petitioner has mentioned that he has written several letters/made applications and
prayed the competent authorities to take immediate action and to provide
security to him and other witnesses, but no action has been taken.
8.
What
is mentioned in the petition is that in the Dainik Jagran newspaper published
on June 8, 2007 it was reported that Sunil Rathi, responsible for murdering the
deceased is running his gang in Uttar Pradesh and Uttarakhand from Dehradun
Jail and has created widespread terror which would not permit fair trial commenced
in case of the murder of the deceased. The petitioner has mentioned that the
investigation by the police is not impartial and has been influenced by powerful
people involved in the murder of the deceased. It is also highlighted that the
trial court also did not make a serious effort to see that justice is done.
Thus, by filing the instant petition, the petitioner has prayed to transfer the
case pending in the court of learned District Judge, Fast Track Court, Haridwar
to competent court of jurisdiction at Delhi.
9.
The
petition was placed for preliminary hearing before the Court on May 1, 2008 and
after hearing the learned counsel for the petitioner, this Court had ordered notices
to be issued to the respondents. On service of notice, the State of Uttarakhand
has filed counter affidavit controverting the averments made in the petition. It
is mentioned in the reply that the accused were arrested on different dates and
proper investigation was made in the case. And mobile phone used in the incident,
one pistol of 315 bore from Akash Tyagi, cartridges, motorcycle having blue
colour etc., were ceased. In the reply it is mentioned that on interrogation of
Akash Tyagi and his co-accused other accused namely Vineet Sharma @ Chinu
Pandit was arrested and that the accused are being tried for alleged commission
of serious offences. According to the reply affidavit Uttarakhand police was
capable to investigate the case and was not reluctant to investigate but in
view of allegations leveled against local police investigating the case, the investigation
was handed over to special agency. By filing reply, it is claimed by State of
Uttarakhand that the petition has no substance and the same should be dismissed.
10.
The
petitioner has filed rejoinder to the affidavit in reply filed on behalf of the
State Government.
11.
The
respondent No. 2, i.e., Kumar Gaurav has also filed affidavit in reply
mentioning inter alia that the Transfer Petition is wholly misconceived and the
allegations leveled therein are baseless, vague and incorrect and, therefore, the
petition should be dismissed. In the reply the respondent No. 2 has referred to
a decision of this Court in Abdul Nazar Madani Vs.State of Tamil Nadu AIR 2000
SC 2293, wherein it is held that not only the convenience of the complainant
alone but convenience of the accused should also be taken into consideration
before ordering transfer of criminal case from one State to another.
The reply proceeds to
mention that the investigation is not yet complete and, therefore, if the trial
is transferred from Haridwar to any other State, the same shall have adverse
effect on the trial and that there is every possibility that injustice and
prejudice would be caused to the accused. What is stated is that the witnesses
proposed to be examined on behalf of accused would not be willing to travel to
any other place for tendering defence evidence and, therefore, transfer of case
would result into injustice to the accused. According to the reply, the present
case is a classic example of trial by media and the petitioner who is influential
and had widely publicized the incident has succeeded in falsely implicating the
respondent No. 2 in the case. The reply states that no ground is made out by the
petitioner to transfer the case from Court of Haridwar to competent Court of
jurisdiction at Delhi and therefore the petition should be dismissed.
12.
This
Court has heard the learned counsel for the parties at length and in great
detail. This Court has also considered the documents forming part of the
instant petition.
13.
From
the record of the case it is evident that several letters have been written
and/or applications have been made by the petitioner making grievances about
the threats administered to him and his family by the accomplices of the
accused. However, it is an admitted position that no action, worth the name, is
taken either by the SSP, Haridwar or by Government of Uttarakhand either to
afford protection to the petitioner and his family or to thwart such threats
made by the accused and/or their accomplices. It is relevant to notice that it
was claimed by the prosecution that the driver of the deceased was an eye-witness
and it is the case of the petitioner that due to threats, he turned hostile.
The fact that the
driver had turned hostile is not in dispute. The fact that in spite of the
receipt of several summons neither the petitioner nor his wife nor his family
members nor other witnesses have been able to go to Haridwar to depose before
the Court is not denied by the State Government. Therefore, this Court is
inclined to accept the case of the petitioner that he and other witnesses have
not been able to respond the summons only because of fear to their lives due to
the threats administered by the accomplices of the accused.
There is no manner of
doubt that because of chasing of the petitioner and his relatives by the
accomplices of the accused, they have not been able to attend the Court and tender
evidence. If this situation continues then the prosecution would not be able to
lead any evidence in such a brutal murder case and the accused will have to be
acquitted. The record indicates that four accused have been already enlarged on
bail but neither the police nor the State agency has taken any steps for the
purpose of getting their bail order cancelled.
14.
The
learned counsel for the petitioner has placed reliance on a decision of this
Court in Himanshu Singh Sabharwal vs. State of M.P. and others (2008) 4 SCR
783,where this Court in paragraphs 14 and 15 has observed as under: -
""Witnesses"
as Benthem said: are the eyes and ears of justice. Hence, the importance and
primacy of the quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the trial gets putrefied
and paralysed, and it no longer can constitute a fair trial. The incapacitation
may be due to several factors like the witness being not in a position for
reasons beyond control to speak the truth in the Court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe to act on account of
numerous experiences faced by Courts on account of frequent turning of witnesses
as hostile, either due to threats, coercion, lures and monetary considerations
at the instance of those in power, their henchmen and hirelings, political
clouts and patronage and innumerable other corrupt practices ingenuously
adopted to smoother and stifle truth and realities coming out to surface rendering
truth and justice, to become ultimate casualties.
Broader public and societal
interests require that the victims of the crime who are not ordinarily parties
to prosecution and the interests of State represented by their prosecuting
agencies do not suffer even in slow process but irreversibly 14and
irretrievably, which if allowed would undermine and destroy public confidence
in the administration of justice, which may ultimately pave way for anarchy,
oppression and injustice resulting in complete breakdown and collapse of the
edifice of rule of law, enshrined and jealously guarded and protected by the
Constitution.
There comes the need
for protecting the witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that ultimate truth is presented
before the Court and justice triumphs and the trial is not reduced to mockery.
The State has a definite role to play in protecting the witnesses, to start with
at least in sensitive cases involving those in power, who has political
patronage and could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty.
As a protector of its
citizens it has to ensure that during a trial in Court the witness could safely
depose truth without any fear of being haunted by those against whom he has
deposed. Some legislative enactments like the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of
the reluctance shown by witnesses to depose against dangerous
criminals-terrorists. In a milder form also the reluctance and the hesitation
of witnesses to depose against people with muscle power, money power or political
power has become the order of the day. If ultimately truth is to be arrived at,
the eyes and ears of justice have to be protected so that the interests of
justice do not get incapacitated in the sense of making the proceedings before
Courts mere mock trials as are usually seen in movies.
15.
Legislative
measures to emphasise prohibition against tampering with witness, victim or
informant have become the imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in proceedings before the
Courts have to be seriously and sternly dealt with. There should not be any
undue anxiety to only protect the interest of the accused. That would be unfair
as noted above to the needs of the society. On the contrary, the efforts should
be to ensure fair trial where the accused and the prosecution both get a fair
deal. Public interest in the proper administration of justice must be given as
much importance if not more, as the interests of the individual accused. In
this courts have a vital role to play.
" Above judgment
clearly enunciates the importance of witness in criminal trial. This is a case
of murder of a Superintending Engineer. There is no manner of doubt that brutal
assault was mounted on him which resulted into his death. The son of the
deceased is seeking transfer of proceedings on ground of coercion and threat to
the witnesses as well as doubtful sincerity of the investigating agency and
prosecuting agency. In effective cross-examination by public prosecutor of the
driver who resiled from the statement made during investigation speaks volumes
about the sincerity/ effectiveness of the prosecuting agency. The necessity of
fair trial hardly needs emphasis. The State has a definite role to play in protecting
the witnesses, to start with at least in sensitive cases.
The learned Judge has
failed to take participatory role in the trial. He was not expected to act like
a mere tape recorder to record whatever has been stated by the witnesses.
Section 311 of the Code and Section 165 of the Evidence Act confers vast and
wide powers on Court to elicit all necessary materials by playing an active
role in the evidence collecting process. However, the record does not indicate
that the learned Judge presiding the trial had exercised powers under Section
165 of the Evidence Act which is in a way complimentary to his other powers. It
is true that there must be reasonable apprehension on the part of the party to
a case that justice may not be done and mere allegation that there is apprehension
that justice will not be done cannot be the basis for transfer. However, there
is no manner of doubt that the reasonable apprehension that there would be failure
of justice and acquittal of the accused only because the witnesses are
threatened is made out by the petitioner.
16. This Court, on
various occasions, had opportunity to discuss the importance of fair trial in
Criminal Justice System and various circumstances in which a trial can be
transferred to dispense fair and impartial justice. It would be advantageous to
notice a few decisions of this Court with regard to the scope of Section 406 of
Code of Criminal Procedure. In Gurcharan Dass Chadha vs.State of Rajasthan AIR
1966 SC 1418, this Court held asunder: -
"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 18 given case does not suffice. The Court
has further to see whether apprehension is reasonable or not. To judge 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.
"In Maneka
Sanjay Gandhi vs. Rani Jethmalani (1979) 4SCC 167, this Court has observed as
under: - "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." In K. Anbazhagan vs. Superintendent of
Police (2004) 3SCC 767, this Court held as under: - "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." In Abdul Nazar
Madani vs. State of Tamil Nadu (2000) 6SCC 204, this Court observed as under: -
"The purpose of 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 a 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 20 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. 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 witness 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."
17. From the
averments made in the petition it is evident that the accused belong to
powerful gang operating in U.P. from which State of Uttarakhand is carved out. The
petitioner has been able to show the circumstances from which it can be
reasonably inferred that it has become difficult for the witnesses to safely depose
truth because of fear of being haunted by those against whom they have to
depose. The reluctance of the witnesses to go to the court at Haridwar in spite
of receipt of repeated summons is bound to hamper the course of justice. If
such a situation is permitted to continue, it will pave way for anarchy,
oppression, etc., resulting in breakdown of criminal justice system. In order
to see that the incapacitation of the eye-witnesses is removed and justice triumphs,
it has become necessary to grant the relief claimed in the instant petition. On
the facts and in the circumstances of the case this Court is of the opinion that
interest of justice would be served if transfer of the case from Haridwar to Delhi
is ordered.
18. For the foregoing
reasons the petition succeeds. The case titled as State Vs. Akash Tyagi &
Others bearing ST No. 6 of 2007 pending in the Court of learned First Fast
Track Court / A.D.J., Haridwar, Uttarakhand arising out of Crime No. 182/2006
and FIR No.169 of2006 is hereby transferred to competent Court of jurisdiction
at Delhi. The investigating agency, the prosecution agency, the State of Delhi
as well as State of Uttarakhand and the learned Judge to whom the trial of the
case may be made over, are directed to take appropriate steps for protecting
the witnesses and to ensure that the trial concludes as early as possible and without
any avoidable delay. The Transfer Petition accordingly stands disposed of.
.....................................J.
[J.M. Panchal]
.....................................J.
[H.L. Gokhale]
New
Delhi;
January
11, 2011.
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