REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRIMINAL) NO. 235 OF 2008

Capt. Amarinder Singh         ....  Petitioner(s)

Versus

Prakash Singh Badal & Ors.                 ....  Respondent(s)

WITH

TRANSFER PETITION (CRIMINAL) NO. 179 OF 2008

J U D G M E N T  

P. Sathasivam, J.

1. These two transfer petitions have been preferred under  

Section 406 of the Code of Criminal Procedure, 1973 seeking  

transfer of the case titled as “State of Punjab vs. Prakash Singh  

Badal and Ors.” relating to FIR No. 15 dated 24.06.2003 filed  

under Sections 420, 467, 468, 471 and 120-B of the Indian  

Penal Code, 1860 read with Sections 7,8,9,10, 13 (1) and (2) of  

the Prevention of Corruption Act, 1988 pending in the Court of

Special Judge, Ropar to any other suitable Court of competent  

jurisdiction in New Delhi.   

2. Capt.  Amarinder  Singh  is  the  petitioner  in  Transfer  

Petition No. 235 of 2008.  M/s Jeet Mohinder Singh, Sukhpal  

Singh, Gurpreet Singh and Mangat Ram Bansal who are all  

members  of  Legislative  Assembly  are  the  petitioners  in  

Transfer Petition No. 179 of 2008.  Respondent Nos. 1 to 10  

are the accused in the case relating to FIR No. 15 and 11th  

Respondent is the State of Punjab.  Since, facts are common in  

both the transfer petitions, we propose to dispose of the same  

by  this  common  judgment.   For  convenience,  reference  to  

parties will be as arrayed in Transfer Petition No. 235 of 2008.  

3. Brief facts, as stated in the Transfer Petition No. 235 of  

2008, are as follows:-

a) FIR No. 15 dated 24.06.2003 filed under Sections 420,  

467,  468,  471 and 120-B of  Indian Penal  Code,  1860  

read  with  Sections  7,  8,  9,  10,  13(1)  and  (2)  of  the  

Prevention of Corruption Act, 1988 was registered at the  

Police Station Vigilance Bureau, Flying Squad, Mohali on  

the  complaint  of  one  Mr.  Balwant  Singh  son  of  Mr.  

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Sukhdev  Singh.   This  FIR  was  filed  for  offences  

committed by Mr. Prakash Singh Badal (Accused No.1),  

Mr. Sukhbir Singh Badal (Accused No.2) and other family  

members for alleged acts of corruption committed during  

the previous tenure of Accused No.1 as Chief Minister of  

the  State  of  Punjab  for  the  period  1997-2002,  for  

collecting  black  money,  owning/possessing  Nammi  &  

Benami movable and immovable properties both in India  

and  abroad.   Summons  were  issued  by  the  Special  

Judge, Ropar, Punjab on 01.12.2003.

b) Against the summons, Mr. Prakash Singh Badal and Mr.  

Sukhbir Singh Badal filed a Special Leave Petition being  

SLP  (Crl.)  No.  5252  of  2003.   Along  with  these  

proceedings, they also filed a Transfer Petition before this  

Court being T.P. (Crl.) No. 307 of 2003 challenging, inter   

alia, the jurisdiction of the Special Judge, Ropar.  When  

both the petitions came up for hearing before this Court  

on 12.12.2003, the Special Leave Petition as well as the  

Transfer  Petition  were  withdrawn  by  the  Accused-

Petitioners.   The  above-said  Transfer  Petition  was  

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withdrawn with liberty to file any other Transfer Petition  

in  future  and the  same will  be  considered on its  own  

merits as pleaded in that petition.  

c) Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal  

having withdrawn the above Special  Leave Petition and  

Transfer  Petition,  moved an application  on 16.01.2004  

before the Special Judge, Ropar raising question relating  

to the competence and jurisdiction of the Special Court.  

It  was  submitted  that  the  Special  Court  had  no  

jurisdiction in the matter  of  FIR No.  15 of  24.06.2003  

and that it could neither proceed nor adjudicate upon the  

said  matter.   By  order  dated  29.05.2004,  the  learned  

Special  Judge,  dismissed  the  said  application  holding  

that  it  had  the  requisite  jurisdiction  in  the  matter.  

Aggrieved by that order, on 30.06.2004, the accused filed  

CWP No. 9410 of 2004 before the High Court of Punjab  

and Haryana at Chandigarh.

d) The High Court  heard  the said Writ  Petition and after  

considering  all  the  legal  issues  raised by  the  accused,  

rejected  the  same  by  a  detailed  judgment  dated  

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02.09.2004 directing the Special Judge to conclude the  

trial  as  expeditiously  as  possible  and  in  any  case  not  

later  than a  year  from the  pronouncement  of  the  said  

judgment. Being aggrieved by this judgment, the accused  

filed Special Leave Petition being SLP (Civil) No. 19640 of  

2004 before this Court.

e) By this time, on the issue of law relating to sanction for  

prosecution in such cases, several Special Leave Petitions  

were filed before this Court by various Politicians across  

the  country  in  separate  matters  relating  to  the  

jurisdiction  of  Special  Courts  dealing  with  such  

allegations of corruption, the cognizance and trial of such  

offences relating to corruption and other issues as to the  

requirement  of  sanction  for  prosecution.   The  entire  

batch of matters and all issues on law were decided by  

this Court by a detailed judgment dated 06.12.2006 in  

the matter of Prakash Singh Badal and Ors vs. State  

of  Punjab  and  Ors., (2007)  1  SCC  1 and  the  said  

special  leave petitions filed by the accused came to be  

dismissed by this Court.  As a natural outcome of this  

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dismissal, the trial before the Special Court, which had  

been suspended all this while was to proceed.

f) Elections were to take place in the month of February,  

2007 in the State of Punjab.  Hence, the Accused (who  

were  also  contesting  election)  sought  time  before  the  

learned  Special  Judge  and  requested  that  the  trial  be  

taken  up  after  the  election  is  over  and  the  result  is  

announced.   Thereafter,  Accused  No.1  assumed power  

and position as the Chief Minister of Punjab the entire  

criminal trial took a completely different turn.  

g) On 15.02.2007, an application was moved by one of the  

Accused regarding crucial witnesses and on 21.02.2007  

another  application  was  filed  by  the  accused  for  

discontinuation/termination  of  further  proceedings.  

Although  both  these  applications  would  have  serious  

ramifications  on  the  case  of  the  prosecution  and  the  

continuation of the trial, neither a cursory reply was filed  

by the public  prosecutor to the above applications nor  

were they objected to.  Thus at this primary stage itself it  

can be seen that the powerful position of Accused No.1  

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occupying the highest political chair in the State as Chief  

Minister  of  Punjab  was  being  brought  down  in  full  

measure on the prosecution.

h) The allegations against the accused were primarily that of  

corruption  and  of  amassing  assets  which  were  

disproportionate to their income.  To support this case,  

one  of  the  primary  documents  being  relied  on  by  the  

prosecution  was  a  report  prepared  by  the  Income-Tax  

Department  as  regards  the  income/assets  and  other  

financial details of the accused.  Despite this document  

being  absolutely  necessary  to  prove  the  case  of  the  

prosecution, on 23.02.2007 the Investigating Officer, Mr.  

Surinder Pal Singh, filed an affidavit before the Special  

Court/trial Court stating that the report prepared by the  

Income-Tax Department ought not to be considered by  

the  Special Court at the stage of framing of charge.  The  

Investigating  Officer,  clearly  to  favour  the  accused,  

virtually  throttled  the case of  the  prosecution with his  

own hands by conceding before the Special Court/Trial  

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Court that this crucial piece of evidence in the form of the  

Income-Tax report ought not to be considered.    

i) The prosecution and the free and fair trial of the matter  

was already being further compromised, is evident from  

the fact that while the public prosecutor continued to fail  

to tender a reply to the above crucial applications filed by  

the  Accused.  The  accused  themselves  had  stopped  

bothering to even appear before the Special Court.  By  

this  time,  Accused No.1 Mr.  Prakash Singh Badal  had  

formally occupied the chair of Chief Minister of Punjab  

and was also holding the Portfolio of the Department of  

Home.  

j) When the matter came up for hearing on 01.03.2007 and  

the Special Public Prosecutor Mr. Amar Preet Singh Deol  

had closed his arguments, an application was moved by  

the Public Prosecutor Mr. Pardeep Mehta under Section  

173 (8) of the Code of Criminal Procedure, 1973 seeking  

permission  to  conduct  “further  investigation”.   While  

strangely such an application was made after the Special  

Public Prosecutor had concluded his arguments, it was  

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further made evident that the Prosecution was under the  

pressure of,  inter  alia,  Accused No.1 who was now the  

Chief  Minister  of  Punjab  to  seek  a  medium  through  

which the case of the prosecution against the Accused  

could be weakened.  This would naturally be under the  

garb  of  such  “further  investigation”  which  had  now  

become “necessary”.

k) Again  when  the  matter  came  up  for  hearing  on  

06.03.2007,  neither  of  the accused was present in the  

Court  in  spite  of  the  express  directions  of  the  Special  

Court.   As  far  as  the  applications  were  concerned,  a  

vague  and  perfunctory  reply  was  filed  by  Mr.  Pardeep  

Mehta, the Public Prosecutor, which in fact did not even  

deal with the contentions set out in the said application.  

There was not even a word of objection or opposition to  

the said application.  As a matter of fact, the reply filed  

by the prosecution requested the Court to adjourn these  

applications and keep them sine die.   

l) The public prosecutor Mr. Pardeep Mehta, who had been  

protecting the interest of the Accused was now made “in  

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charge” of the case, obviously by the Government headed  

by Accused No.1.  Further it may be important to note  

that by now, Accused No.1 was now in charge of Home  

Department  and  more  particularly,  the  Vigilance  

Department.   

m) When  the  matter  once  again  came  up  for  hearing  on  

07.03.2007, the Court was constrained to note that no  

proper/final reply had been filed by the Prosecution with  

regard to the applications filed by accused  inter alia for  

discontinuation/termination.

n) Despite a complete lack of assistance and interest on the  

part of the prosecution, the Special Judge, Ropar framed  

charges  against  the  Accused  including  Mr.  Prakash  

Singh  Badal  (Chief  Minister  of  Punjab),  Mr.  Shukhbir  

Singh  Badal  (Son  of  the  Chief  Minister)  and  other  

members  of  the  family  and  known  associates  under  

Sections  13  (1)(a),  13(2),  13(1)(e),  8,9  and  14  of  the  

Prevention  of  Corruption  Act,  1988  read  with  Section  

120-B of the Indian Penal Code, 1860.  On 09.03.2007,  

the Special Judge dismissed the application filed by the  

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Public Prosecutor Mr. Pardeep Mehta for permission to  

conduct  “further  investigation”  under  the  provisions  of  

Section 173 (8)  of  the Cr.P.C. along with various other  

applications filed by the Accused with regard to directing  

the prosecution to clear their stand on the statements of  

the witnesses and application for termination of further  

proceedings  and  the  challan  in  view  of  the  alleged  

infirmity in the proposed charges to be framed against  

the accused.

o) Despite all the damage that could have done through the  

prosecution  after  the  framing  of  the  charge,  the  

Government of Punjab, Department of Home Affairs and  

Justices  issued  Notification  No.21/17/2000-3/JUDL  

(1)/1418  dated  10.05.2007/11.05.2007  canceling  the  

appointments of all existing special public prosecutors in  

the case.  Ironically the said Notification was said to be  

passed with immediate  effect  in  public  interest.   Thus  

Accused  No.1  who  was  holding  charge  of  the  Home  

Ministry portfolio was in a position to actually decide as  

to who should be his prosecutor.  

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p) All the eleven officials who appeared as witnesses despite  

admitting  to  their  respective  signatures  on  their  

statements under Section 161 of the Criminal Procedure  

Code, 1973 resiled from the contents thereof.  It may be  

seen  that  if,  fear  of  or  a  sense  of  favour  towards  the  

Accused had driven the above witnesses who are officials  

of Departments such as the Vigilance Bureau, Irrigation  

and  PWD  Department  to  resile  from  their  sworn  

statements, there could be no hope of truth or assurance  

of safety for the witnesses in the case.  

q) When the prosecution further continued on 20.08.2007,  

three  more  prosecution  witnesses  were  examined  and  

they all resiled from the statements made before them.  

r) The conduct of the Prosecution and the manner in which  

the Accused has struck at the heart  of it  and made it  

defenceless can be seen from the fact that in the course  

of such trial, it is common practice for the prosecution to  

require examination of the investigating officer at the end  

of evidence so that such investigating officer may prove  

the statement of the other witnesses even if they were to  

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have resiled from the same in the course of examination.  

However, in the present case, despite the fact that some  

prosecution witnesses had already started resiling from  

their  statements,  the  prosecution deliberately  made an  

application  for  examining  the  investigating  officer  Mr.  

Surinder Pal Singh, prematurely and at the beginning of  

such proceedings.  If such Investigating Officer was to be  

examined at this early stage, then there would be nobody  

left to prove the statements of prosecution witnesses who  

were resiling.  However, this application was dismissed  

by  the  Special  Court/Trial  Court  vide  order  dated  

20.08.2007.  

s) The manner in which the public prosecutor Mr. Pardeep  

Mehta was covering up for the accused and helping them  

is made further clear when the State of Punjab actually  

appealed the above order of the Special Court/Trial Court  

dated 20.08.2007 dismissing the above application which  

was  so  done  by challenging  the  order  before  the  High  

Court  of  Punjab  and  Haryana  at  Chandigarh  vide  

Criminal Misc. No.45232-M of 2007 under the provisions  

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of Section 482 of Code of Criminal Procedure praying that  

the application moved by the prosecution to examine the  

investigating officer before proceeding further be allowed.  

By order dated 14.11.2007, the High Court directed the  

Special  Court  to  consider  afresh  any  such  application  

that may be filed by the public prosecutor in the near  

future.  

t) The  complete  and  deliberate  breakdown  of  the  

prosecution  case  became  further  clear  when  on  

17.01.2008  the  Complainant  Mr.  Balwant  Singh  too  

resiled  from  his  affidavit  by  stating  that  he  had  no  

knowledge of the contents of the Complaint which had  

led to registration of the said FIR No.15 dated 26.04.2006  

and despite acknowledging his signatures on each and  

every document of the complaint and the accompanying  

affidavit, stated that he had in fact signed these papers  

for the purchase of a vehicle.

u) Finally on 04.02.2008, the prosecution finally succeeded  

in persuading the trial Court to examine the Investigating  

Officer Mr. Surinder Pal Singh. The Investigating Officer  

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Mr. Surinder Pal Singh in his examination-in-chief has  

virtually  resiled  from every  aspect  of  the  investigation;  

stated that he did not record the witness statements in  

question  and  wherever  his  signatures  appear  on  the  

record of the case was because “he signed where he was  

told to”.  

v) This trial is now a sham and a farce designed to meet the  

ends of the accused who are in complete control of every  

aspect of it.   

4. As against the above allegations,  the respondents have  

filed response among which let us refer the stand taken by the  

first respondent, namely, Mr. Prakash Singh Badal:

a) The transfer petition is grossly belated.  No explanation  

has been offered as to why the petitioner has chosen to  

wait  until  the  entire  prosecution  evidence  which  

commenced from 18.07.2007 stood concluded in March,  

2008.  The case is now at the stage of consideration of  

recording  statements  under  Section  313  of  Criminal  

Procedure  Code.   The  petition  is  clearly  politically  

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motivated and an attempt to scuttle the trial which is at  

its fag end.    

b) A close relation of Capt. Amarinder Singh, namely, Mr.  

Simranjit Singh Mann, had filed a transfer petition in the  

High Court  being CWP No. 11399/2007 for  transfer of  

the case from Ropar to any other Court outside the State  

of Punjab on the basis of similar contentions, regarding  

the  alleged impossibility  of  a  free  and fair  trial  in  the  

State of Punjab.  The said transfer petition was dismissed  

by the High Court, vide judgment and final order dated  

25.09.2007,  observing  that  there  is  no  basis  for  the  

apprehension  expressed  by  the  writ  petitioner.   This  

judgment and final  order of  the High Court  was never  

challenged.  

c) All the alleged witnesses in the case were put up by the  

present petitioner, as the then Chief Minister of the State,  

in order to politically discredit the 1st respondent and to  

create a defence for himself in respect of both civil and  

criminal proceedings for defamation instituted by the 1st  

respondent against the petitioner herein.  Viewed in this  

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context,  the  deposition  of  the  prosecution  witnesses  

before  the  Trial  Court  is  clearly  truthful,  as they have  

categorically  exposed  the  manner  in  which  they  were  

cited  as  false  witnesses  and  subjected  to  threat  and  

coercion at the instance of the petitioner herein.  

d) Various events set out in para 7 of the affidavit establish  

that the entire prosecution is vitiated by mala fide.  It is  

borne  out  from  the  record  that  the  petitioner,  after  

assuming the office of Chief Minister in February 2002,  

had  embarked  upon  a  witch  hunt  against  the  1st  

respondent  and his  family  members.   To  this  end,  he  

retained to himself the portfolios of Home and Vigilance.  

Various officials either working in the Vigilance Bureau  

or  in  various  other  Government  Departments  were  

pressurized  and  cited  in  the  list  of  witnesses,  and  a  

wholly baseless challan was presented.  

e) In para 12, details were furnished about the number of  

prosecution witnesses, their status and their statements.  

In para 13,  details  have  been furnished about  various  

documents  placed  before  the  trial  Court.   The  above-

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mentioned details reveal the mala fides behind the trial of  

the 1st respondent and other accused.  The petitioner has  

filed the present petition to somehow scuttle the trial.

f) The  statement  of  official  witnesses  under  Section  161  

Cr.P.C.  are  never  signed  by  the  witnesses  and  had  

categorically stated that on 1st,  2nd and 03rd November,  

2003  they  did  not  go  to  any  place  for  making  any  

assessment.   They  had  gone  only  in  July,  2003  and  

submitted  their  reports.   These  reports,  which  would  

have established the correct value of the property of the  

1st respondent did not find approval  with the Vigilance  

Bureau and the same have been concealed.  

g) As  regards  the  allegation  of  non-appearance  of  the  

accused in the Court, Smt. Surinder Kaur Badal, wife of  

Mr.  Prakash  Singh  Badal  was  granted  permanent  

exemption from personal appearance by the trial Court,  

way  back  on  21.02.2004  when  the  petitioner  Mr.  

Amarinder Singh himself was heading the Government.  

The  first  respondent  had  appeared  on  several  dates  

including 13.03.2007 and 04.07.2007 when charge sheet  

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and  amended  charge  sheet  was  served  upon  him.  

Thereafter, he had been seeking exemption from personal  

appearance by making appropriate application.  He had  

been granted exemption on specific dates of hearing by  

the  trial  Court  after  due  application  of  mind.   Mr.  

Sukhbir Singh Badal appeared on most of the dates of  

hearing in the trial  Court  barring a few where he was  

granted exemption from personal appearance by the trial  

Court.  

h) Regarding the allegation of manhandling Mr. Amar Preet  

Singh Deol, the 1st respondent has specifically denied the  

same and neither  Mr.  Amar  Preet  Singh Deol  nor  any  

other person ever raised any issue before the trial court.  

Even in the transfer petition filed by Mr. Simranjit Singh  

Mann before the High Court, no such averment was ever  

made  regarding  the  alleged  manhandling  of  Mr.  Amar  

Preet  Singh  Deol  on  28.02.2007.   Likewise,  the  1st  

respondent has denied the allegation that supporters and  

party workers indulged in slogan shouting leading to a  

terror filled atmosphere in which no free and fair trial can  

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ever  proceed  or  conclude.   It  is  pointed  out  that  no  

complaint  has  been  made  to  the  Presiding  Judge  nor  

there has been any report in the Press about the same.  

i) The  entire  matter  is  now  under  the  judicial  scrutiny  

before  the  trial  Court.   There  is  no  allegation  in  the  

petition  against  the  conduct  of  the  proceedings  in  the  

Court or against the Presiding Officer.  

5) In the light of the above pleadings, we have heard Mr.  

Altaf Ahmed and Mr. P.S. Narasimha, learned senior counsel  

for the petitioners and Mr. Harish N. Salve, Mr. Ashok Desai,  

Dr.  Rajiv  Dhavan,  Mr.  Ravi  Shanker  Prasad  and  Mr.  C.S.  

Vaidyanathan, learned senior counsel for the respondents.  

6) After taking us through the entire materials including the  

complaint, statement of witnesses, proceedings, various orders  

of the Court and steps taken and the alleged failure or lapse  

by the special Public Prosecutor, Mr. Altaf Ahmed and Mr. P.S.  

Narasimha,  learned  senior  counsel  appearing  for  the  

petitioners mainly submitted that in view of the fact that the  

first  accused  being  the  Chief  Minister  and his  son being  a  

Deputy Chief Minister, others are being either family members  

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of the Chief Minister or his close associates, there cannot be  

any fair trial.  They also contended that in view of the attitude  

of the Government terminating all the special counsel/special  

public  prosecutors  except  one  Mr.  Pardeep  Mehta,  it  is  

undesirable to continue the prosecution in any place in the  

State of Punjab.  They finally contended that the conduct of  

the Investigating Officer,  namely,  Mr.  Surinder Pal Singh in  

disowning  his  statement  and  conceding  that  he  put  his  

signature under pressure clearly shows that there cannot be a  

fair  trial  and  nobody  is  interested  to  proceed  with  the  

prosecution case.  On the other hand, learned senior counsel  

appearing  for  the  respondents/accused  disputed  all  the  

allegations/apprehensions  raised  by  the  petitioners  in  

conducting fair trial.  After taking us through the statement of  

the  witnesses  examined so  far  and documents  placed,  it  is  

stated that it cannot be construed that there was any inaction  

on the part of the prosecution or public prosecutor.  According  

to  them,  there  is  no  basis  for  such  apprehension  and  

witnesses  have  clarified  their  statements  and  asserted  that  

their  statements  before  the  Court  are  true.   They  also  

21

highlighted their position at the relevant time and confirmed  

that they had nothing to do with the allegations made against  

them.  It is further pointed out that those witnesses clarified  

that they were not under pressure.  It is also pointed out that  

inasmuch as most of the witnesses so far examined resiled one  

after  another  and  only  in  this  context,  public  prosecutor  

informed the Court that there is no purpose in continuing the  

prosecution.   

7) The  above  transfer  petitions  have  been  filed  under  

Section 406 of the Code of Criminal Procedure, 1973 which is  

reproduced below for ready reference:

“406. Power of Supreme Court to transfer cases and  appeals.- (1)  Whenever  it  is  made  to  appear  to  the  Supreme  Court  that  an  order  under  this  section  is  expedient for the ends of justice, it may direct that any  particular case or appeal be transferred from one High  Court to another High Court or from a Criminal Court  subordinate  to  one  High  Court  to  another  Criminal  Court  of  equal  or  superior  jurisdiction subordinate  to  another High Court.  

(2) The  Supreme Court  may act  under  this  section  only on the application of the Attorney-General of India  or of a party interested, and every such application shall  be  made  by  motion,  which  shall,  except  when  the  applicant  is  the  Attorney-General  of  India  or  the  Advocate-General of the State, be supported by affidavit  or affirmation.  

22

(3) Where  any  application  for  the  exercise  of  the  powers  conferred  by  this  section  is  dismissed,  the  Supreme  Court  may,  if  it  is  of  opinion  that  the  application  was  frivolous  or  vexatious,  order  the  applicant to pay by way of compensation to any person  who  has  opposed  the  application  such  sum  not  exceeding  one  thousand  rupees  as  it  may  consider  appropriate in the circumstances of the case.”  

Sub-section (1) makes it clear that for the ends of justice it  

would be open to 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.  

8) Before considering the rival  claim of  both parties,  it  is  

useful to refer some of the decisions of this Court relating to  

transfer of a criminal case from one State to another.      

9) In  K.  Anbazhagan vs.  Superintendent  of  Police  &  

Ors. (2004)  3  SCC  767,  this  Court  had  an  occasion  to  

consider the transfer of a criminal trial from the State of Tamil  

Nadu to another State, a two Judge Bench, after going into the  

factual  details,  particularly,  the  change  of  Government,  

attitude  of  the  public  prosecutor  and  finding  that  there  is  

23

justifiable  and  reasonable  apprehension  of  miscarriage  of  

justice  as  well  as  likelihood  of  bias,   allowed  the  Transfer  

petition pending on the file of XIth Additional Sessions Judge  

(Special  Court  No.  1)  Chennai,  State  of  Tamil  Nadu  to  the  

State of  Karnataka.   While directing the transfer this Court  

permitted  the  State  of  Karnataka  in  consultation  with  the  

Chief  Justice  of  the  High  Court  of  Karnataka  to  appoint  a  

senior  lawyer  having experience  in  criminal  trials  as  Public  

Prosecutor  to conduct those cases.   In the same order,  the  

Court observed that the public prosecutor will be at liberty to  

apply that the witnesses who have been recalled and cross-

examined by the accused, who have resiled from the previous  

statement, may be again recalled.  The Court further observed  

that the public prosecutor would be at liberty to apply to the  

Court  to  have  these  witnesses  declared  hostile  and  seek  

permission to cross-examine them.

10) In Abdul Nazar Madani vs. State of Tamil Nadu and  

Anr. (2000) 6 SCC 204, the issue dealt with was for transfer  

of  criminal  case  from  one  State  to  another.   In  the  said  

decision it was reiterated that the purpose of the criminal trial  

24

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 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  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.  However, 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.   After  perusing  the  figures  

furnished and considering all the materials, it was concluded  

that  the  transfer  petitions  were  totally  misconceived  and  

25

dismissed the same.   

11) In  Sri  Jayendra Saraswathy Swamigal  (II)  T.N. vs.  

State of T.N. & Ors. (2005) 8 SCC 771, this Court has held  

that if there is reasonable apprehension on the part of a party  

to a case that justice may not be done, he may seek transfer of  

the case.  It also held that the apprehension and parties must  

be a reasonable one and the case cannot be transferred on a  

mere allegation that there is apprehension that justice will not  

be done.  

12) It is a well-established proposition of law that a criminal  

prosecution, if otherwise, justifiable and based upon adequate  

evidence does not become vitiated on account of mala fides or  

political  mandate  of  the  informant  or  the  complainant.  

However,  if  justifiable  and  reasonable  apprehension  of  

miscarriage  of  justice  and  likelihood  of  bias  is  established,  

undoubtedly, the proceeding has to be transferred elsewhere  

by exercise of power under Section 406 Cr.P.C.  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  

26

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  apprehension  alleged  is  reasonable  or  not.   The  

apprehension must not only be entertained but must appear  

to the court to be a reasonable apprehension.

13) 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 Cr.P.C.  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  

27

in the system.  The apprehension must appear to the Court to  

be a reasonable one.   

14) In the light of  the above principles,  let  us analyse the  

claim of both parties and find out whether the criminal trial is  

to be transferred to other State.  It was pointed out that with  

respect  to  offences  committed  during  the  period  between  

1997-2002, the time when the first Respondent was the Chief  

Minister, an FIR was launched on 24.06.2003 and chargesheet  

was filed on 22.11.2003, citing 138 witnesses to be examined.  

A supplementary chargesheet was filed on 04.01.2004 citing  

more witnesses.  The first Respondent came back to power as  

the Chief  Minister in February,  2007. Out of 138 witnesses  

only 59 were examined, out of which 35 turned hostile.  Mr.  

Altaf Ahmad, learned senior counsel for the petitioner pointed  

out  that  the  aspect  of  selective  calling  up  of  witnesses,  

dropping  crucial  witnesses,  most  of  the  witnesses  turning  

hostile  one  after  another,  non-examination  of  witnesses  

connected  with  the  transaction  and  not  citing  certain  

witnesses hostile  or  cross examining them when they resile  

from the earlier  statements,  has virtually  rendered the trial  

28

farcical.  Though, in a transfer petition we are not expected to  

go into the veracity of the statement of the witnesses and their  

evidential  value,  since  both side  cited several  instances,  we  

may  refer  the  same  without  expressing  specific  opinion  on  

them.  According to the counsel for the petitioners insofar as  

valuation of the properties of the accused,  though, one Mr.  

Bharat Shah, Challan Witness No. 114 who had visited the  

properties  of  the  Accused  for  the  purpose  of  valuation  and  

assessment of the assets of the accused and had recorded a  

statement under Section 161, was dropped by the prosecution.  

On the request of the police that they would not help the case  

of  the  prosecution  it  was  pointed  out  that  on  the  same  

reasoning Mr. Surinderpal Mitra, Challan Witness No. 116 and  

Mr.  S.K.  Srivastava  were  dropped  by  the  prosecution.  

Likewise, it was pointed out that Mr. Sukhdip Singh Dhindsa,  

Mr.  S.K.  Jain,  Mr.  A.K.  Goel,  Mr.  Gurpratap  Singh,  Mr.  

Sawtantar Singh, and Mr. Vinarjit Singh were not examined.  

In  the  same  manner,  in  respect  of  allegation  relating  to  

Benami transaction some of the prosecution witnesses were  

either dropped or declared as hostile.  It was contended that  

29

same was the position in respect of charge relating to bribery,  

flow of illegal wealth and black money of the accused persons.  

15) Though, Mr. Altaf Ahmad and Mr. P.S. Narasimha took  

us through their evidence let in before the Special Court and  

their  statement  recorded  earlier  under  Section  161  Cr.P.C.  

Mr.  Harish  Salve,  senior  counsel  appearing  for  one  of  the  

Respondents  by  taking  us  through  the  same  materials  

demonstrated  that  there  is  no  basis  for  the  apprehension  

expressed by the petitioners.  It was pointed out that initially  

Capt. Amrinder Singh was also a member of the same party  

along  with  Respondent  No.  1  who  subsequently  left  the  

Shiromani Akali Dal on being denied to contest the Assembly  

Election in 1997.  Since then, the petitioner held Mr. Prakash  

Singh Badal who was the president of the Shiromani Akali Dal  

at that time, to be responsible for his fate.  The petitioner had  

subsequently joined the Congress.  It was further pointed out  

that in September, 2001 in the Assembly elections in Punjab,  

the  petitioner  wrote  a  letter  to  Mr.  Badal  alleging  that  the  

latter had amassed properties in India and Abroad which were  

disproportionate to his known sources of income.  The said  

30

letter was published in the Press and wide publicity was given  

for the purpose of electoral gain in February, 2002.  A criminal  

complaint  for  defamation  was  filed  by  Mr.  Badal’s  son  Mr.  

Sukhbir  Singh  Badal,  2nd  Respondent  herein  against  the  

petitioner.  It was pointed out that in the same month i.e. in  

2002, the Congress party came to power in Punjab and the  

petitioner was appointed as the Chief  Minister  and retained  

with  himself  the  portfolio  of  Home  and  Vigilance.   It  was  

further pointed out that on account of the persistence of the  

petitioner  with  his  defamatory  allegations,  the  respondent  

herein also filed a criminal complaint for defamation against  

the  petitioner.   In  both  the  said  criminal  complaints,  the  

petitioner  had  been  the  same  and  served  with  notice  of  

accusation by the Trial court to face the trial.  It is claimed  

that FIR dated 24.06.2003 is almost a verbatim copy of the  

letter  dated  04.09.2001  written  by  the  petitioner.   In  the  

counter  affidavit  filed  before  us  the  first  respondent  has  

highlighted  various  other  proceedings  between  the  

respondents and the petitioner.  In the same counter affidavit  

the evidence given by prosecution witnesses were catalogued  

31

and asserted that those witnesses have not supported the case  

of the prosecution and also emphasized the manner in which  

the prosecution set  up the false  witnesses,  pressurized and  

threatened them. It is the claim of the learned senior counsel  

appearing  for  the  petitioners  that  contrary  to  all  known  

practice  of  a  conduct  of  a  trial  in  which  the  prosecution  

examines  the  Investigating  Officer  at  the  end  of  the  

prosecution  evidence  so  that  the  statements  of  hostile  

witnesses  may be  proved,  in  the  cases  on hand the  public  

prosecutor,  Mr.  Pardeep  Mehta  prematurely  filed  an  

application  for  examining  the  Investigating  Officer,  

Mr. Surinder Pal Singh.  By pointing out the same, learned  

senior counsel for the petitioners contended that prosecution  

was so keen that the Investigating Officer be examined out of  

turn.  It is seen that the said application filed by the public  

prosecutor  was dismissed by the trial  Court  by order dated  

20.08.2007.  The special Court after finding that in case other  

witnesses turned hostile then Investigating Officer is to prove  

their  statement,  therefore,  it  will  be  appropriate  if  the  

Investigating  Officer  is  examined  after  examination  of  the  

32

remaining material witnesses.  By saying so, the special Court  

disposed  of  the  application  filed  by  the  public  prosecutor.  

Against the said order, the State of Punjab appealed before the  

High Court of Punjab & Haryana in Crl. Misc. Application No.  

45232-M/07.   The  materials  placed  show  that  in  the  

meantime before the Special Court three more witnesses were  

examined and they also turned hostile.  They are: 1. PW 34:  

Mr. Rajinder Singh Garewal, Deputy Director, Horticulture 2.  

PW  35:  Mr.  Rajinder  Singh,  Sub  Divisional  Engineer,  

Irrigation, Bhatinda and 3. PW 36: Mr. Vijay Kumar, Junior  

Engineer,  Drainage.   Ultimately,  the High Court  disposed of  

Crl. Misc. Application and passed an order to the effect that in  

the  light  of  any  changed  circumstances  and/or  subsequent  

events,  the  public  prosecutor  deems  it  appropriate  to  seek  

permission  of  the  learned  Special  Judge  to  examine  the  

Investigating  Officer  before  the  remaining  witnesses  are  

examined, he may move another application to this effect and  

if such an application is moved, the learned Special Judge was  

directed to consider and dispose of the same in accordance  

with  law  by  ignoring  the  previous  order  dated  20.08.2007.  

33

Even  thereafter,  three  more  witnesses  were  examined  on  

26.11.2007 & 27.11.2007 and they too turned hostile.  They  

are  –  1.   PW  43:  Mr.  Amandeep  Singh  Brar,  Executive  

Engineer,  PWD  2.  PW  44:  Mr.  Sukdhip  Singh  Dhindsa,  

Executive Engineer, PWD and 3. PW 46: Mr. Surender Singh,  

Cable  Operator.   It  is  further  seen that  on 04.01.2008 two  

more witnesses were examined who also turned hostile.  They  

are – 1. PW 50: Mr. Jit Singh, Agriculturist and 2. PW 52: Mr.  

Gurinder Pal Singh, Inspector General of Police, Railways.  It  

was highlighted that those witnesses i.e. PWs 9 to 14, 35 & 36  

had not even seen Balasar Farm House, where their services  

were  alleged  to  have  been  utilized.   Likewise,  the  other  

witnesses PWs 1 to 7, 15, 23, 24, 27, 28, 43, 44 and 53 have  

denied their role in assessing the properties on 1st , 2nd and 3rd  

November, 2003 i.e. the date of the assessment alleged by the  

prosecution.   Those witnesses filed separate  affidavit  in the  

High court stating that on 1st,  , 2nd , 3rd  November 2003, when  

the alleged assessment said to be taken place, they were doing  

their official work at their respective offices.  These witnesses  

admitted the fact that they assessed those properties in July,  

34

2003, but their report did not find approval of the Vigilance  

Bureau.   

16) Though, it was highlighted that the first respondent is a  

Chief  Minister  and  all  other  accused  are  his  relatives  and  

friends, the information furnished show that except one or two  

others are businessmen,  agriculturists,  employed as Special  

Inspector in U.T. Chandigarh, and one as Hindi teacher.  In  

that event, if transfer is ordered outside the State of Punjab, it  

would be difficult  for the other accused to attend the Court  

proceedings on several occasions.  The same hurdle is there  

for other witnesses both on the prosecution as well as defence.

17) It is relevant to point out that the complainant himself,  

namely,  Mr.  Balwant  Singh  who  was  examined  as  PW  56  

resiled  stating  that  the  affidavit  supporting  his  private  

complaint  was  not  filed  by  him.   He  asserted  that  he  had  

signed these papers for purchase of a vehicle. On the same  

day  17.01.2008/18.01.2008  when  the  complainant  resiled,  

PW 53: Mr. Amarjit Singh, SP Vigilance Bureau and PW 55:  

Mr. Jagdish Singh Khaloan, SP, Ferozepur who were examined  

on the same date also turned hostile.   On the next hearing  

35

date  i.e.  05.02.2008  when  the  prosecution  examined  the  

Investigating Officer,  in  his  examination in  chief,  he  resiled  

from every aspect of the investigation stating that he did not  

record the witness statements, he signed when he was told to  

and even the charge sheet was prepared on the computer of a  

Senior  Officer  and  merely  signed  by  him.   In  those  

circumstances,  in view of  the fact  that many of  the officers  

asserted before the Special Court that neither they were not in  

the respective position as claimed by the prosecution nor they  

made  a  statement  as  recorded  under  Section  161  which  

necessitated  the  public  prosecutor  closing  the  prosecution  

case by giving up remaining PWs as unnecessary.        

18) Coming to the allegation relating to removal of  Special  

public  prosecutors/special  counsel  and  the  conduct  of  the  

present Public Prosecutor Mr. Pardeep Mehta, on behalf of the  

State of Punjab, Chief Secretary has filed a counter affidavit  

dated 29.04.2008 explaining the correct position. It is stated  

that  the  political  system  prevailing  in  India  is  such  that  

whenever  Government  changes  or  new political  party  forms  

the  Government,  all  the  officers  including  the  Advocate  

36

General and the Law Officers tender their resignation and new  

ones, in whom the Government of the day has confidence are  

appointed by the new Government/Political Parties.  The same  

was  also  done  by  the  government  headed  by  the  petitioner  

herein which came in power in the year 2002.  Relating to the  

allegations that have been made against the Public Prosecutor  

Mr. Pardeep Mehta, the Chief Secretary has explained that Mr.  

Pardeep Mehta had been posted as Deputy District Attorney in  

the  Vigilance  Bureau,  Punjab  on  26.09.2002.   He  was  

promoted  as  District  Attorney  by  Order  dated  29.05.2006.  

Pursuant  to  his  promotion  as  District  Attorney  vide  order  

31.05.2006 passed by the Principal Secretary, Department of  

Home Affairs and Justice, State of Punjab, he was appointed  

as District  Attorney,  Ropar.   Soon after  his appointment as  

Deputy  District  Attorney,  Vigilance  Bureau,  Punjab,  Mr.  

Pardeep Mehta had been conducting the prosecution of almost  

all the cases registered under the Prevention of Corruption Act  

at Mohali.  He had also been assisting various special public  

prosecutors in the conduct of the trial of the present case, as  

well  as  the  proceedings  before  the  High  Court  and  in  this  

37

Court.  He relied on the order sheet of the Trial Court with  

effect from 19.12.2006 which,  according to him, reveal  that  

Mr. Pardeep Mehta appeared on behalf of the prosecution on  

each and every date of hearing.

19) With  regard  to  allegation  regarding  appointment  and  

removal of other public prosecutors/special counsel, the Chief  

Secretary  has  explained  that  on  28.11.2003  by  separate  

Notification  Mr.  Amar  Pal  Singh  Randhawa,  Advocate,  Mr.  

H.S. Sandhu, Senior Advocate and Mr. Sukhdev Singh Tiwana,  

Advocate were appointed as Special Public Prosecutor in the  

present case.  On the same day i.e. 28.11.2003, Mr. Pardeep  

Singh,  Advocate,  Mr.  Shiv  Dutt  Sharma,  Advocate  and  Mr.  

Amar Ashok Pathak, District Attorney/PP were appointed to  

assist the prosecution.  Mr. U.U. Lalit, Advocate, (now Senior  

Advocate) on 24.04.2004, Mr. Rajiv Dutta, Senior Advocate, on  

17.09.2004,  Mr.  Amar  Preet  Singh  Deol,  Advocate,  on  

22.12.2006 and Mr. R.S. Cheema, Senior Advocate (the then  

Advocate General, Punjab) on 18.01.2007 were appointed as  

special  public  prosecutors  respectively.   It  was  further  

explained that the order sheet of the Trial Court from time to  

38

time shows that Mr. Amar Pal Singh Randhawa, Advocate had  

never conducted the proceedings before the Trial Court.  Mr.  

Rajiv Dutta, Senior Advocate appeared on 18.09.2004 i.e. on  

one  occasion  only.   Mr.  U.U.  Lalit,  Senior  Advocate,  had  

appeared  on  24.04.2004,  29.04.2004,  04.05.2004,  

15.05.2004, 28.09.2004 and 30.09.2004, and not thereafter.

20) As regards the allegation that Mr. Amar Preet Singh Deol,  

Special  Public  Prosecutor,  was  manhandled  on  28.02.2007,  

Chief Secretary has stated that no complaint was filed by him  

in respect of any such alleged incident.  On the other hand, it  

was  pointed out that Mr. Amar Preet Singh Deol had himself  

written  a  letter  on  12.03.2007  to  the  Secretary  (Home),  

Punjab, Chandigarh, requesting, inter alia, for clearance of his  

fee bills, and even in this letter there was no mention of any  

such incident.  It was further stated that Mr. H.S. Mattewal  

was appointed as Advocate General for the State of Punjab on  

02.03.2007 and he assumed his office on the said date.  

21)  As rightly highlighted by the learned senior counsel for  

the State of Punjab that there is no reason to disregard the  

above  information  furnished  by  the  Chief  Secretary  of  the  

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State  of  Punjab.   In  those  circumstances,  the  allegation  

relating to removal  of  Special  Public  Prosecutors  and about  

Mr. Pardeep Mehta cannot be sustained.  It is also relevant to  

point out that before the Court of Special Judge, Ropar, the  

present  Public  Prosecutor  Mr.  Pardeep  Mehta  made  a  

statement on behalf of the State that on the basis of the police  

records he had given up prosecution witnesses Mr. Kuldeep  

Singh, Mr. Bharat Shah, Mr. Amolak Singh and Mr. Surender  

Pal Mitra as they will not support the case of the prosecution  

and also stated that he wanted to examine only the witness  

Jatinder Singh, Sr. No. 5 in the supplementary challan, Mr. C.  

Paramjit  Singh,  Sr.  No.  5,  main  challan,  Mr.  Surinder  Pal  

Singh, Sr. No. 137, in the main challan, Mr. Amarjit Singh SP,  

Sr. No. 99, main challan, Mr. J.S. Kahlon, Sr. No. 34 of main  

challan, Mr.  S. Chatopadhya, Sr. No. 135, main challan and  

Mr. B.K. Uppal, Sr. No. 136 of main challan.  We also verified  

the  statement  of  the  59 witnesses  of  which 35 declared as  

hostile  by  Public  Prosecutor.   The  perusal  leads  to  a  

conclusion that  the  presiding Judge  has made an effort  by  

putting relevant question to those witnesses and taking note of  

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their  assertion  that  they  were  forced  to  make  incorrect  

statement at the time of preliminary investigation, the public  

prosecutor Mr. Pardeep Mehta has declared them as hostile.  

Ultimately, it is upon the presiding officer/Special Judge and  

not  this  Court  to  evaluate  those  witnesses  and  arrive  at  a  

conclusion one way or other depending on the charges leveled  

against the accused.  It would not be fair on the part of this  

court either to assess and arrive at an opinion about the same.  

Even  after  closing  of  the  prosecution  side  by  the  Public  

Prosecutor,  if  the  Court  wants  to  examine  some  more  

witnesses from the list furnished by the prosecution, it is for  

the presiding Judge to take a decision in accordance with the  

law and issue appropriate direction.   

22) Though, Mr. Altaf Ahmad, Learned senior counsel relied  

on  the  decisions  of  this  Court  in  K.  Anbazhagan vs.  

Superintendent of Police & Ors., S.K. Sukla & Ors vs. State  

of U.P. & Ors.  and Jayendra Saraswati Swamigal vs.  State  

of Tamil Nadu,  (supra) in view of the factual details as seen  

from the  materials  placed before  the  Special  Court  and the  

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details shown in the form of reply affidavit  on behalf  of  the  

Respondent No. 1 in response to the Transfer Petition No. 235  

of  2008  as  well  as  affidavit  of  the  Chief  Secretary  placing  

certain factual details, we are of the view that those decisions  

are not helpful/applicable to the cases on hand.   

23) The analysis of all the materials, the transfer of the case  

as sought for, at this stage, is not only against the interest of  

prosecution  but  also  against  the  interest  of  other  accused  

persons, the prosecution witnesses and the convenience of all  

concerned  in  the  matter.   For  the  sake  of  repetition,  it  is  

relevant to mention that when the complainant was examined  

as  PW 56,  he  disowned his  complaint  and asserted  that  it  

(complaint)  was  not  filed  by  him  though  he  admitted  his  

signature  found  therein.   Further,  all  important  witnesses  

particularly government officials informed that what they said  

before the Court alone is absolute truth and they were forced  

to  make  false  statement  at  the  time  of  registering  the  

complaint.   As stated earlier,  similar transfer petition which  

was  filed  before  the  High  Court  ended  in  dismissal  and  it  

became final.  We are satisfied that the presiding officer of the  

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Special Court is conscious of his power and how to conduct  

fair trial at the same place.  We are also of the opinion that the  

public  prosecutor  cannot  act  on  the  dictates  of  the  State  

Government, he has to act objectively as he is also an Officer  

of  the  Court.   The  Special  Court  is  free  to  assess  whether  

prosecution has established its case.  We have already pointed  

out  that  a  mere  allegation  that  there  is  apprehension  that  

justice will not be done in a given case alone does not suffice.  

Considering  the  totality  of  all  circumstances,  we  are  of  the  

opinion that in a secular, democratic Government, governed  

by  the  rule  of  law,  the  State  of  Punjab  is  responsible  for  

ensuring  free,  fair  and  impartial  trial  to  the  accused,  

notwithstanding, the nature of the accusations made against  

them.  In the case on hand, the apprehension entertained by  

the petitioners cannot be construed as reasonable one and the  

case cannot be transferred on a mere allegation that there is  

apprehension that justice will not be done.   

24) Taking  into  consideration  the  entire  facts  and  

circumstances of the case and the materials on record, we are  

of the view that the petitioners have not made out a case that  

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they have reasonable apprehension of not availing justice in  

the State of Punjab.  We would like to clarify that we have not  

expressed anything on the merits neither of the prosecution  

case nor the defence of the accused and whatever said in the  

earlier paragraphs are applicable only for disposal of transfer  

petitions and ultimately it is for the Special Court to decide the  

issues in the light of the material placed and in accordance  

with  the  law.   The  inevitable  conclusion  is  that  both  the  

transfer  petitions  filed  by  the  petitioners  deserve  to  be  

dismissed, which we direct.

…….…….……………………CJI                                                   (K.G. BALAKRISHNAN)

    ...…………………………………J.

                              (P. SATHASIVAM)                  

   ...…………………………………J. New Delhi;                                 (J.M. PANCHAL)  May 14, 2009.  

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