Jahid Shaikh &
Ors Vs. State of Gujarat & ANR.
J U D G M E N T
ALTAMAS KABIR, J.
1.
This
Transfer Petition has been filed by one Jahid and 62 other Petitioners under
Section 406 of the Code of Criminal Procedure for transfer of Sessions Case No.38
of 2009 pending before the Special Judge, Ahmedabad, for trial outside the
State of Gujarat.
2.
The
aforesaid Sessions Case arises out of FIR Nos.1-236 of 2008 of Shahibaug Police
Station and various other FIRs lodged with different Police Stations in the State
of Gujarat. Apart from FIR Nos.I-236 of 2008 of Shahibaug Police Station, the
aforesaid Sessions Case No.38 of 2009 also involves the following FIRs in which
the Petitioners have been implicated :-
a. I-203 of 2008, I-204
of 2008, I-205 of 2008 and I-206 of 2008 of Maninagar Police Station;
b. I-338 of 2008 and I-339
of 2008 of Odhav Police Station;
c. I-400 of 2008 and I-401
of 2008 of Naroda Police Station;
d. I-321 of 2008 and I-322
of 2008 of Ramol Police Station;
e. I-190 of 2008 of Isanpur
Police Station;
f. I-218 of 2008 of
Vatva Police Station;
g. I-273 of 2008 of Amraiwadi
Police Station;
h. I-71 of 2008 of
Khadia Police Station;
i. I-220 of 2008 of Bapunagar
Police Station;
j. I-123 of 2008 of Kalupur
Police Station;
k. I-140 of 2008 of Danilimbda
Police Station;
l. I-181 of 2008 of Sarkhej
Police Station;
m. I-200 of 2008 of
Kalol Police Station;
n. 176 of 2008, 175 of 2008,
179 of 2008 and 180 of 2008 of Kapodra Police Station;
o. 365 of 2008, 363 of
2008, 364 of 2008, 369 of 2008 and 366 of 2008 of Varacha Police Station;
p. 203 of 2008 and 208 of
2008 of Katargam Police Station;
q. 651 of 2008 of Umrah
Police Station;
r. 3019 of 2008 of DCB
Police Station;
s. 208 of 2008 and 209 of
2008 of Mahidharpura Police Station.
All the aforesaid FIRs
have been lodged in connection with the series of bomb blasts that occurred in 2008
all over the country in major cities like Delhi, Mumbai, Jaipur, Ahmedabad and
Bengaluru, killing many and injuring several others. As a response to the
aforesaid blasts which were declared to be acts of terrorism by the State Government,
a large number of young men belonging to the Muslim community were arrested both
from within and outside the State of Gujarat.
3.
Appearing
in support of the Transfer Petition, learned Advocate, Mr. Prashant Bhushan,
submitted that the Transfer Petition seeking transfer of the trial of the accused
in the Ahmedabad bomb blast cases, as well as in the cases relating to planting
of bombs in Surat, out of the State of Gujarat, was necessitated on account of
the attitude and conduct of the local authorities. Mr. Bhushan submitted that the
local police authorities, jail authorities and the public prosecutor had conducted
themselves in a manner which reflects total bias and prejudice against the
accused and the same has created more than a reasonable apprehension in their mind
that they would not get a fair and free trial in the State of Gujarat.
4.
Among
the more glaring examples of bias and prejudice pointed out by Mr. Prashant Bhushan
was the allegation that charges were framed against the accused without supplying
them with the essential documents which were required to be supplied under
Section 207 of the Code of Criminal Procedure (Cr.P.C.), particularly when the majority
of the accused were not being represented through counsel. Mr. Bhushan
submitted that in cases instituted upon a police report, Section 207 Cr.P.C. makes
it obligatory on the part of the Magistrate to provide the accused, without
delay, free of cost, copies of the police report, the First Information Report
recorded under Section 154 Cr.P.C., the statements recorded under Sub-Section (3)
of Section 161 Cr.P.C. of all the persons whom the prosecution proposed to examine
as its witnesses, the confessions and statements recorded under Section 164 Cr.P.C.,
as well as any other document or relevant extract forwarded to the Magistrate with
the police report under Sub-Section (5) of Section 173 Cr.P.C.
Mr. Bhushan urged that
under Section 227 Cr.P.C. the accused have a right to oppose the framing of charges
on the basis of the evidence gathered during investigation, which requires the
accused to have copies of all the documents mentioned in Section 207 of the
Code. Mr. Bhushan submitted that the said right to have the police papers had been
violated by the Respondents, inasmuch as, most of the accused did not have
access to all the papers at the time of framing of charges against them. Mr. Bhushan
submitted that those who had been favoured with copies of the police papers were
unable to understand the same, as they were in Gujarati which language was not
known to most of the accused, most of them were from outside the State of Gujarat.
Mr. Bhushan also submitted that the learned Advocates of those who were provided
with copies of the charge-sheets in Gujarati were barely given four days' time to
consider the same to prepare their case for discharge of the accused.
5.
Despite
the fact that on the date of framing of charges, many of the accused had not been
served with copies of the charge-sheet and connected papers, such as the statement
of witnesses and confessional statements of the accused recorded under Section
164 Cr.P.C., and other documents, and those who had been served, were served with
copies of the same in Gujarati, the learned Designated Judge framed charges
against the accused persons on 11th January, 2010. Mr. Bhushan submitted that
the majority of the accused were provided with lawyers and copies of the charge-sheet
and other documents after charge had already been framed. [Emphasis Supplied] Mr.
Bhushan submitted that some of the accused, who did not receive the said documents,
moved an Application on 15th February, 2010, but the same was rejected without such
copies being supplied.
6.
Mr.
Bhushan urged that apart from the above, one other serious grievance which the accused
had, which has led to the apprehension of bias, was that the counsel for the accused
were not permitted to meet their clients even for 10 minutes in their Court chambers,
without the police being present, despite the applications made on behalf of the
accused that they would not be in a position to speak freely in the presence of
the police for fear of subsequent reprisal at the hands of the police.
Mr. Bhushan submitted
that although the Court was fully aware of the fact that the accused would not
be able to speak freely about the torture inflicted on them while in custody, it
decided to look the other way to prevent the learned advocates for the accused
to obtain a true picture of the allegations made by the accused of torture at the
hands of police while in custody. Mr. Bhushan submitted that the Court chose to
disregard the reality that after their production in Court, the accused would
have to go back to the custody of police and to suffer the consequences of their
disclosures in Court.
Mr. Bhushan submitted
that even in the light of the serious allegations made against the police of torture
and the evidence in support thereof, the Court did not think it necessary to
even order an independent investigation to verify the truth or otherwise of such
allegations. Mr. Bhushan urged that on account of the disinterest shown by the Courts
with regard to the complaints of torture made by the accused, the jail
authorities became emboldened and subjected the accused to other indignities, including
the storming of the barracks of the accused on 27th March, 2009, and severely beating
the inmates thereof.
7.
Mr.
Bhushan submitted that several affidavits had been filed by the relatives of the
accused which revealed the severe physical torture inflicted on the accused which
were supported by medical reports of doctors who examined the victims, but
despite such evidence, the trial court did not order an independent probe into the
incident and, instead, sought a report from the jail authorities who, as it could
have been expected, stated that it was the accused who had revolted and had to be
subdued by the jail authorities.
It was the aforesaid explanation
of the jail authorities which was ultimately upheld by the Court. Mr. Bhushan submitted
that the jail authorities had placed reliance on a report by the Additional Principal
Judge into an incident which had taken place prior to the incident of 27th
March, 2009. In other words, the matter referred to in the order dated 5th December,
2009, passed by the Gujarat High Court had no connection with the incident forming
the basis of the transfer petition.
8.
Mr.
Bhushan contended that apart from the above, there were several other instances
of bias indicated hereinbelow, which had given rise to the apprehension in the minds
of the accused that they would not get a free and fair trial as is guaranteed under
Article 21 of the Constitution, before the learned Designated Judge, namely,
a. On the date of hearing,
the Investigating Officer, Mr. Tolia, was seen leaving the Chamber of the learned
Designated Judge, which fact was admitted, but was attempted to be explained on
the ground that such visits were in connection with other matters pertaining to
the bomb blast cases. An application made thereafter, requesting the learned
Judge to recuse herself from the cases remained undecided.
b. On 15th February, 2010,
this Court stayed the proceedings before the Designated Judge and, although, the
same was orally conveyed to the learned Judge, she rejected all the applications
praying for adjournment, and completed framing of charge and fixed 19th February,
2010, for evidence. Within two weeks thereafter on 21st March, 2010, the Designated
Judge also rejected the application for transit remand for 11 accused to be brought
to Delhi for framing of charge in connection with the case pending in Delhi, on
the ground that charge had already been framed against them and the trial had been
stayed by this Court.
c. Although, out of 64 accused,
were from outside Gujarat from eight different States, copies of the charge-sheet
in Gujarati were attempted to be served on some of the accused in a show of compliance
with the provisions of Section 173 Cr.P.C. which would not enable the accused to
make an effective representation at the time of framing of charge. Even the copies
which were served on 22 of the accused, who were Gujaratis, were found to be
illegible.
d. The accused were severely
prejudiced by the fact that although the orders passed by the Metropolitan Magistrate
or the Designated Judge were appealable, it was impossible for them to seek any
further relief since the majority of the accused were from outside Gujarat and their
cases were being looked after by Legal Aid counsel or by counsel appearing pro bono.
9.
Mr.
Bhushan submitted that it is now well- settled by this Court in the case of Zahira
Habibulla H. Sheikh Vs. State of Gujarat [(2004) 4 SCC 158] and Maneka Sanjay Gandhi
& Anr. Vs. Miss Rani Jethmalani [(1979) 4 SCC 169], etc., that in the event
local communal feelings, which are borne out from the manner in which the accused
were treated by the police, jail staff and the Courts are such that they create
an atmosphere which is not conducive to the holding of a fair trial, the cases should
be transferred to a neutral location in the interest of justice.
Mr. Bhushan submitted
that as was held in Maneka Sanjay Gandhi's case (supra) and quoted with approval
in Zahira Habibulla H. Sheikh's case (supra), one of the more serious grounds which
disturbed the conscience of the Court in more ways than one, is the alleged
absence of a congenial atmosphere for a fair and impartial trial. Mr. Bhushan
submitted that such a sentiment had been expressed as far back as in 1958 by
Justice Vivian Bose in the case of G.X. Francis & Ors. Vs. Banke Behari
Singh & Anr. [1958 Crl.L.J. 569= AIR 1958 SC 309], where his Lordship observed
that good grounds for transfer had been made out because of the bitterness of the
local communal feeling and the tenseness of the atmosphere there. His Lordship also
observed that public confidence in the fairness of a trial held in such an
atmosphere would be seriously undermined, particularly amongst reasonable
Christians all over India, not because the Judge was unfair or biased, but because
the machinery of justice is not geared to work in the midst of such conditions.
[Emphasis Supplied]
10.
In
support of his aforesaid contention, Mr. Prashant Bhushan also referred to the decisions
of this Court in K. Anbazhagan Vs. Supdt. Of Police [(2004 (3) SCC 767], Surendra
Pratap Singh Vs. State of U.P. & Ors. [(2010) 9 SCC 475], and Gurcharan Dass
Chadha Vs. State of Rajasthan 16[(1966) 2 SCR 678 = AIR 1966 SC 1418]. Mr.
Bhushan submitted that the law as settled by this Court for transferring a
trial did not require the Petitioner to prove that he would be deprived of a free
and fair trial, but the test is whether there are circumstances which create a reasonable
apprehension that he might not get a free and fair trial. Learned counsel further
submitted that the contention of the State that the case was no longer before the
Metropolitan Magistrate and that even the Designated Judge had since been
changed, was of little consequence, since trial by a different Judge would not
restore the invaluable rights which had been denied to the accused at the stage
of framing of charge.
11.
Mr.
Prashant Bhushan submitted that in the circumstances indicated, it was only just
and proper that the Transfer Petition be allowed and that Sessions Case No.38
of 2009 pending before the 17Special Judge, Ahmedabad, be transferred outside
the State of Gujarat for trial.
12.
Appearing
for the State of Gujarat and the Inspector General of Prisons, Ms. Hemantika Wahi,
learned Advocate, strongly opposed the Transfer Petition and contended that it was
only after intensive investigation that charge-sheets had been filed against
the accused persons who had travelled to different parts of Gujarat as a part of
a criminal conspiracy under false and vexatious names and planted bombs at different
locations in thickly-populated public places to cause the maximum amount of damage
and terror.
It was submitted that
the allegation made relating to the alleged bias and/or lack of confidence in
getting a free and fair trial before the Magistrate and the Designated Sessions
Judge, was entirely without foundation, as were the allegations also made
against the Jail Authorities. Ms. Wahi submitted that a few orders, even if held
to be incorrect, could not be a ground for transferring the entire prosecution out
of the State of Gujarat as that would lead to various difficulties for the
prosecution in producing witnesses at the time of trial.
Ms. Wahi submitted
that there were a large number of witnesses in respect of the cases relating to
Ahmedabad and Surat and that it would be impossible for such a large number of witnesses
to be produced before a Court outside the State of Gujarat for giving evidence before
a Court where the language used was not Gujarati. Apart from the above, in all the
offences which had been consolidated in one Sessions Case, there were 144
charge-sheets/supplementary charge-sheets, each containing on an average 2000 to
3000 pages. It was submitted that if the prayer made in the Transfer Petition was
allowed, it would result in complete injustice, as it was most likely that the
trial would end in acquittal of the accused.
13.
Ms.
Wahi also contended that the allegation of bias made against the Magistrate or Sessions
Judge was no longer relevant since the matter had already been committed by the
Magistrate to the Court of Sessions while the learned Sessions Judge had
sincebeen elevated as a Judge of the Gujarat High Court and the trial would be conducted
by a Judge other than the said Judge against whom the allegation of bias had
been made. Ms. Wahi submitted that it was not as if the Petitioners were aggrieved
by the entire judiciary in the State, inasmuch as, such an allegation would be entirely
misplaced and in the changed circumstances the arguments advanced in favour of
transfer of the Sessions Case outside the State of Gujarat could no longer be justified
and were liable to be rejected.
14.
Ms.
Wahi submitted that the decision in Zahira Habibulla H. Sheikh's case (supra) was
on a completely different set of facts, and, in any event, each case would have
to be treated on its 20own set of facts and merits. Even the allegation of torture
in custody has not been proved to the satisfaction of the Court.
15.
Ms.
Wahi submitted that the case attempted to be made out on behalf of the Petitioners
for transfer of the Sessions Trial outside the State of Gujarat, is based on suppression
of material facts relating to the alleged non-supply of charge-sheet papers. It
was urged that the same had been refused despite having been offered to the
Petitioners and that an opportunity was duly given to the Petitioners to engage
Advocates of their choice on their refusal to accept legal aid as offered by the
Court or even from the State Legal Services Authority. In fact, most of the
accused persons subsequently engaged Advocates of their choice to represent and
defend them at the time of trial, which fact had been withheld from the Court.
Ms. Wahi submitted that all the allegations made by the Petitioners against the
Respondents were entirely false and merited rejection.
16.
Having
regard to the nature of the relief sought for by the Petitioners, we have considered
the submissions made on behalf of respective parties and the materials on record
with care and caution. It appears to us that at the initial stages of the investigation
and filing of charge-sheets some amount of bias could well have been detected. However,
once the matter had gone out of the hands of the Magistrate concerned, no further
bias could be attributed to him. Similarly, the allegation of bias against the District
& Sessions Judge was no longer available since the incumbent had been elevated
to the Bench and the trial will be conducted by another learned Judge.
17.
However,
as pointed out by Mr. Prashant Bhushan, learned counsel appearing for the
Petitioners, the manner in which the charges had been framed, without giving the
Petitioners a meaningful opportunity of meeting the allegationsmade against them
in the charge-sheet, will ultimately have a direct bearing on the trial itself.
The duty of the Sessions Court to supply copies of the charge-sheet and all the
relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C.
is not an empty formality and has to be complied with strictly so that the accused
is not prejudiced in his defence even at the stage of framing of charge.
The fact that many of
the accused persons were not provided with copies of the charge-sheet and the other
relevant documents, as indicated in Sections 207 and 208 Cr.P.C., seriously affects
the right of an accused to a free and fair trial. In the instant case, in addition
to the above, it has also to be kept in mind that most of the accused persons in
this case are from outside the State of Gujarat and are not, therefore, in a
position to understand the 23documents relied upon by the police authorities as
they were in Gujarati which most of the accused were unable to comprehend. Their
demand for translated copies of the documents met with no response, and ultimately
it was the very same documents in Gujarati, which were supplied to some of the
accused in some of the cases.
18.
The
physical torture which was said to have been inflicted on the Petitioners has come
on record by way of affidavits to which there is no suitable explanation. Furthermore,
the accused persons were not allowed to meet their lawyers without police presence,
and as stated by them, it is only natural that an accused in custody will have second
thoughts before making or reiterating allegations of torture against the very persons
to whose custody they would have to return.
19.
Apart
from the above, we also have to consider Ms. Wahi's submissions regarding the
convenience of 24the prosecution which intends to produce a large number of witnesses,
who are all said to be residents of the State of Gujarat. It has been submitted
by Ms. Wahi that the examination of such a large number of witnesses could be compromised
and/or jeopardized in the event they are required to travel outside the State of
Gujarat in connection with the trial. There will also be a language problem for
the witnesses to be examined outside the State of Gujarat, since the majority
of the witnesses were acquainted mostly with Gujarati and would be at a
disadvantage in providing a true picture of the series of incidents relating to
the bomb blasts which were triggered off in the cities of Ahmedabad and Surat
on 26th July, 2008.
20.
However,
in our criminal justice delivery system the balance tilts in favour of the accused
in case of any doubt in regard to the trial. The Courts have to ensure that an
accused is afforded a free and fair trial where justice is not only done, but
seen to be done and in the process the accusedhas to be given the benefit of any
advantage that may enure to his/her favour during the trial. As was observed by
this Court in Commissioner of Police Vs. Registrar, Delhi High Court [(1996) 6
SCC 323], Article 21 of the Constitution enshrines and guarantees the precious right
of life and liberty to a person, deprivable only on following the procedure established
by law in a fair trial, assured of the safety of the accused. Except in certain
matters relating to economic offences or in regard to national security, the burden
lies heavily on the prosecution to prove its case to the hilt and it is rarely that
the accused is called upon to prove his innocence.
21.
This
is a case where the apprehension of the accused being denied a free and fair trial
within the State of Gujarat has to be considered on the weight of the materials
produced on behalf of the accused in support of such apprehension and
theprejudice that may also be caused to theprosecution in presenting its case. That
the facts involved in this case are of a sensitive nature, cannot be denied, but
that by itself cannot be a ground for transfer of the trial outside the State
of Gujarat. A good deal of care and caution has to be exercised to see whether
the accused/petitioners have been able to make out a case of bias and prejudice
on the part of the State or the prosecuting authorities which raises a very real
and plausible ground for transferring the trial pending before the Special
Judge, Ahmedabad outside the State of Gujarat. Apart from the above, what has also
to be taken into consideration is a conceivable surcharged communal climate
which could have a direct bearing on the trial itself. The Court has to undertake
a balancing act between the interest of the accused, the victims and society at
large in the focus of Article 21 of the Constitution to ensure a free and fair
trial to the accused.
22.
The
question involved in this case has earlier fallen for consideration in various other
cases before this Court which have been referred to hereinbefore. It will be profitable
to refer to some of the observations made by this Court in such cases.
23.
In
this regard, we may first refer to a three-Judge Bench decision in the case of G.X.
Francis & Ors. (supra), where also this Court was considering a Transfer Petition
filed on the apprehension of bias in the minds of the accused. The said
petition involved the transfer of a complaint wherein the accused were said to have
been concerned in one way or the other in defamatory statements against the complainant
regarding a publication known as the "Niyogi Report". Authoring the judgment
on behalf of the Bench, Vivian Bose, J. observed that where there is unanimity of
testimony from both sides about the nature of the surcharged communal tension in
the area in question and the local atmosphere is not conducive to a fair and
impartial trial, there is a good ground for transfer. The learned Judge also
observed that 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 biased 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".
24.
We
may now refer to another three-Judge Bench decision of this Court in the case of
Gurcharan Dass Chadha Vs. State of Rajasthan which also involved a Transfer
Petition based on the ground of reasonable apprehension on the part of the petitioner
that justice would not be done to him by the Court before whom the trial was pending
under the provisions of the Penal Code and the Prevention of Corruption Act. While
disposing of the matter, this Court observed as follows : "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 suffice. The Court has further to see whether the
apprehension is reasonable or not."
25.
The
aforesaid question once again cropped up in Maneka Sanjay Gandhi & Anr. Vs.
Miss Rani Jethmalani [(1979) 4 SCC 169], in a Transfer Petition filed, inter alia,
on three grounds, namely, (i) that the parties (complainant and petitioners) reside
in Delhi and some formal witnesses also belong to Delhi; (ii) that the petitioner
is not able to procure competent legal service in Bombay; and (iii) that the atmosphere
in Bombay is not congenial to a fair and impartial trial of the case against
her. Referring to the decision in G.X. Francis's case (supra) a Three-Judge Bench
of this Court, dismissed the Transfer Petition upon holding that none of the
allegations made by the petitioner made out a case that a fair trial was not possible
in the Court where the matter was pending.
The mere words of an interested
party was insufficient to convince the Court that she was in jeopardy or the
Court might not be able to conduct the case under conditions of detachment, neutrality
or uninterrupted progress. This Court, however, went on to say that it could
not view with unconcern the potentiality of a flare up and the challenge to a
fair trial. In such circumstances, this Court made certain precautionary observations
to protect the petitioner and to ensure for her a fair trial. In K. Anbazhagan
Vs. Superintendent of Police, Chennai & Ors. [(2004) 3 SCC 788], while disposing
of two transfer petitions, the learned Judges observed as follows :
"A free and fair
trial is a 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 minds of the petitioner."
26.
Before
we proceed to the latest views expressed by this Court in a Transfer Petition also
praying for transfer of a trial outside the State of Gujarat on account of bias
and a vitiated communal atmosphere, we may refer to a slightly different view taken
by this Court by a Bench of two-Judges in the case of Abdul Nazar Madani Vs.
State of T.N. & Anr. [(2000) 6 SCC 204]. While disposing of a Transfer Petition
filed by the accused in the Coimbatore Serial Bomb Blasts case on the allegation
that the atmosphere in the State of Tamil Nadu in general and in Coimbatore in
particular, being so communally surcharged that his fair and impartial trial there
would be seriously impaired, this Court held that the purpose of a criminal trial
is to dispense fair and impartial justice uninfluenced by extraneous considerations.
This Court observed that
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.
The mere existence of a surcharged atmosphere without there being proof of inability
of the Court of holding a fair and impartial trial, could not be made a ground
for transfer of a case. The alleged communally surcharged atmosphere has to be considered
in the light of the accusations made and the nature of the crimes committed by
the accused seeking transfer of the case. It was observed that no universal and
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.
27.
As
has been stated hereinbefore, in Zahira Habibulla H. Sheikh's case (supra), in order
to ensure a free and fair trial the atmosphere in which the case is tried
should be conducive to the holding of a fair trial. The absence of a congenial atmosphere
for such a fair and impartial trial was held to be a good ground for transfer
of the case from Gujarat to Maharashtra.
28.
However,
such a ground, though of great importance, cannot be the only aspect to be
considered while deciding whether a criminal trial could be transferred out of the
State which could seriously affect the prosecution case, considering the large number
of witnesses to be examined to prove the case against the accused. The golden
thread which runs through all the decisions cited on behalf of the parties, is
that justice must not only be done, but must also be seen to be done. If the said
principle is disturbed, fresh steps can always be taken under Section 406
Cr.P.C. and Order XXXVI of the Supreme Court Rules, 1966 for the same reliefs.
29.
The
offences with which the accused have been charged are of a very serious nature,
but except for an apprehension that justice would not be properly administered,
there is little else to suggest that the charged atmosphere which existed at
the time when the offences were alleged to have been committed, still exist and
was likely to prejudice the accused during the trial. All judicial officers cannot
be tarred with the same brush and denial of a proper opportunity at the stage of
framing of charge, though serious, is not insurmountable.
The accused have their
remedies elsewhere and the prosecution still has to prove its case. As mentioned
earlier, the communally surcharged atmosphere which existed at the time of the alleged
incidents, has settled down considerably and is no longer as volatile as it was
previously. The Presiding Officers against whom bias had been alleged, will no
longer be in charge of the proceedings of the trial. The conditions in Gujarat
today are not exactly the same as they were at the time of the incidents, which
would justify the shifting of the trial from the State of Gujarat. On the other
hand, in case the Sessions Trial is transferred outside the State of Gujarat
for trial, the prosecution will have to arrange for production of its witnesses,
who are large in number, to any venue that may be designated outside the State of
Gujarat.
At the present moment,
the case for transfer of the trial outside the State of Gujarat is based on certain
incidents which had occurred in the past and have finally led to the filing of charges
against the accused. The main ground on which the Petitioners have sought
transfer is an apprehension that communal feelings may, once again, raise its ugly
head and permeate the proceedings of the trial if it is conducted by the Special
Judge, Ahmedabad. However, such an allegation today is more speculative than
real, but in order to dispel such apprehension, we also keep it open to the Petitioners
that in the event the apprehension of the petitioners are proved to be real during
the course of the trial, they will be entitled to move afresh before this Court
for the relief sought for in the present Transfer Petition.
30.
The
Transfer Petition is disposed of with the aforesaid observations. There will be
no order as to costs.
.......................................J.
(ALTAMAS KABIR)
.......................................J.
(CYRIAC JOSEPH)
NEW
DELHI,
DATED:
JULY 6, 2011
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