http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: GURUCHARAN DAS CHADHA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 24/11/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) RAMASWAMI, V.

CITATION:  1966 AIR 1418            1966 SCR  (2) 678  CITATOR INFO :  RF         1987 SC1140  (3)  R          1988 SC1531  (152)

ACT:     Code  of  Criminal Procedure,  s.  527--Supreme  Court’s power  to  transfer cases from one State  to  another--Power whether  inconsistent  with  s. 7(2) of  the  Prevention  of Corruption Act, (Act 2 of 1947)--Case triable before special judge of area within which offence committed, whether can be transferred outside such area.

HEADNOTE:      The  petitioner  was a member of an All  India  Service serving  in  the State of Rajasthan.  The  State  Government ordered  his  trail before the Special  Judge  of  Bharatpur under  s. 120B/161 of the Indian Penal Code and s. 5(1)  (a) (d)  and  s. 5(2) of the Prevention of  Corruption  Act.  He moved the Supreme Court under s. 527 of the Code of Criminal Procedure  praying for the transfer of his case  to  another State,  on various grounds.  On behalf of the State  it  was contended  that  the Supreme Court could  not  exercise  its powers under s. 527 of the Code of Criminal Procedure in the matter  because s. 7(1) of the Prevention of Corruption  Act required  the offences in question to be tried by a  special judge  only, and s. 7(2) of the Act required the offence  to be  tried by a Special Judge for the area within which  they were  committed which condition could never be satisfied  if there was a transfer.      HELD : (i) The condition in sub-section (1) of s. 7  of the Prevention of Corruption Act that the case must be tried by special judge is a sine qua non for the trial of offences in   Section   6.  This  condition  can  be   satisfied   by transferring  the  case from one special  judge  to  another special Judge. [684 B]      Sub-section (2) of s. 7 merely distributes work between special  judges  appointed  in a  State  with  reference  to territory.   This Provision is on a par with the section  of the  Code  of Criminal Procedure  which  confer  territorial jurisdiction  on Sessions Judges and Magistrates.  An  order of  transfer  by the very nature of  things  must  sometimes result in taking the case out of the territory. [685 D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

    (ii) The third sub-section of s. 8 of the Act preserves the  application ,of any provision of the Code, of  Criminal Procedure  if  it is not inconsistent with the Act  save  as provided  in  the first two sub-sections  of  that  section. Section 527 of the Code therefore remains applicable; if  it is  not inconsistent with s. 7(2) of the Act.  There  is  no inconsistency between s. 527 of the Code and s. 7(2) of  the Act  because  the territorial jurisdiction  created  by  the latter  operates in a different Sphere and  under  different circumstances.  Inconsistency can only be found if two  pro- visions of law apply in identical circumstances, and  create contradictions.  Such a situation does not arise when either this  Court  or  the  High  Court  exercises  the  power  of transfer.    Therefore  this  Court  in  exercise   of   its jurisdiction and power under s. 527 of the Code can transfer a  case from a special judge subordinate to one High  Court to  another special judge subordinate to another High  Court [685 E]      Ramchandra  Prasad v. State of Bihar, A.I.R. 1961  S.C. 129, referred to, 679     (iii) On merits however the petition in the present case could not succeed.  There was nothing in it which would show that there was any interference direct or indirect with  the investigation of the offences alleged against the petitioner or  the  trial of the case by the special judge.  A  general feeling  that some persons are hostile to the petitioner  is not  sufficient.  The Court has further to see  whether  the apprehension is reasonable. [686 H]

JUDGMENT:       ORIGINAL  JURISDICTION:  Transfer Petition  No.  7  of 1965.(Under Section 527 of Criminal Procedure Code).        T. R. Bhasin, for the petitioner.        G. C.  Kasliwal,  Advocate-General for the  State  of Rajasthan,        K. K. Jain and R. N. Sachthey for the Respondent.        The Judgment of the Court was delivered by        Hidayatullah,  J. This is a petition under S. 527  of the  Code  of  Criminal  Procedure for  the  transfer  of  a criminal case (No. 2 of 1964-state v. Gurcharan Dass  Chadha I.P.S.) which is pending in the Court of the Special  Judge, Bharatpur,  Rajasthan to another criminal court of equal  or superior jurisdiction subordinate to a High Court other than the High Court of Rajasthan.  The petitioner is the  accused in  that  case  and he is being tried  under  ss.  120B/161, Indian  Penal  Code  and  S.  5(1)(a)(d)  and  5‘2)  of  the Prevention of Corruption Act.      prosecution  has been sanctioned by the  Government  of India.  In December, 1962, he was serving as  Superintendent of Police and was selected to be Commandant of 8th Batallion of Rajasthan Armed Constabulary.  He avers that he took over as  Commandant  on  January 7, 1963  but  was  placed  under suspension the same day and a case was registered on January 12,  1963  which  has resulted in  the  present  prosecution against  him.  The petitioner apprehends for reasons  to  be stated  presently that he is not likely to get a fair,  just and  impartial trial in the State of Rajasthan owing to  the hostility  and  influence of the then Law Minister  who  was also Minister incharge of Home Department of the State,  the Additional Inspector General of Police, Anti-Corruption, and the Deputy Inspector General of Police, Ajmer Range, Jaipur. In support of his petition he has referred to many incidents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

and filed many documents.  He has sworn an affidavit that he entertains   an  apprehension  that  these   persons   would interfere  with  the  trial  of the case  in  the  State  of Rajasthan and that a transfer of the case outside the  State is in the interest of justice. 680     The State Government has opposed the application strenu. ously  and has questioned the jurisdiction of this Court  to transfer under the powers conferred on it by s.. 527 Code of Criminal Procedure a case made over by the Government of the State  of Rajasthan for trial to a Special Judge  under  the Criminal  Law  Amendment  Act, 1952 (Act 46  of  1962).   In addition,  the  State Government joins issue  on  the  facts alleged and the merits of the claim for the transfer of  the case.      While  this petition was pending the  State  Government served  the petitioner with a notice and a  charge-sheet  to show cause why he should not be proceeded against for breach of  Rule  No. 8 of the All India Services  (Conduct)  Rules, 1954,  because  he  had  communicated   "directly/indirectly official    documents   and   information   to    Government servants/other  persons  to whom he was  not  authorised  to communicate  such  documents/information" as  indicated  and detailed  in  a statement of  allegations  accompanying  the notice and the charge.  The State Government has appended to this charge two appendices giving details of 31 and 16 docu- ments  respectively,  which  were  said  to  have  been   so communicated by the petitioner to his counsel Messrs.  R. K. Rastogi  and  D. P. Gupta, Advocates of Jodhpur  and  others named  as "non-petitioners" in a writ petition which he  had filed  in the High Court of Rajasthan (No. 794 of 1964)  and which  he subsequently withdrew on December 23, 1964  before taking action to file the present petition.  The notice, the charge  and the statement of allegations  accompanying  them were signed by Mr. Vishnu Dutt Sharma, Special Secretary  to Government.  On receiving this charge, the petitioner  moved another petition in this Court for taking action against Mr. Shrama and the Government of Rajasthan for contempt of  this Court.  At an earlier hearing, where we were considering the petition for transfer, the other petition was brought to our notice and we were about to order issuance of notices to the contemners  but  the Advocate General of the  Government  of Rajasthan  took notice of the petition and offered  to  take action  in  respect  thereof.   As a  result  the  State  of Rajasthan through the Chief Secretary to the Government  and Mr.  Sharma  separately filed their replies  to  the  second petition  and attempted justification.  Mr.  Sharma  abjured knowledge  of the contents of the petition for transfer  and denied any malice, ill-will or grudge, pleading good  faith. The matter would have received serious attention from us but for  the  fact  that  at  the  next  hearing  the  plea  for justification was abandoned and an unconditional apology was entered  on  behalf of the State Government as well  as  Mr. Sharma.   The  latter  was present in  Court  and  expressed regret for what had. happened. 681 We  accepted the appology and do not, therefore,feel  called upon  to  consider the plea of justification which,  in  any event, is not a plea heard in bar when contempt is clear and manifest.   There could be no question in the  present  case that  by  charging  the petitioner  with  proceedings  of  a different  kind there was, if not direct, at least  indirect pressure brought upon him in the prosecution of his petition for. transfer.  Of this we would have taken serious note be- cause  it  was  likely to have hampered  the  petitioner  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

prosecuting his petition freely before this Court and  would have  resulted in obstruction of administration of  justice. If the petitioner was guilty of any lapse under the Services (Conduct)  Rules or even guilty of an offence the action  to which  he  would be otherwise subject could  wait  till  the present  proceedings had terminated and there was really  no reason  to hurry with a charge against the petitioner  which charge would have put him under duress of some kind.  Such a course  of  action ’is to be deprecated and we are  glad  to note  that  the Government of Rajasthan  and  the  Secretary concerned  have seen the matter in this light and have  made amends by proper contrition.  We do not feel called upon  to say more than this on the petition for contempt which  shall be filed.      We  shall  now take up the objection  that  this  Court lacks  jurisdiction to transfer the case pending before  the special  Judge, Bharatpur.  This objection goes to the  root of  the  matter.  Questions of  inherent  jurisdiction  must always  be decided before the merits are considered  because to dismiss the petition after consideration of merits itself involves an assumption of jurisdiction.  We must accordingly consider the objection even though we are satisfied that-the petition must fail on merits.      The  power which the petitioner is invoking flows  from s.  527  of the Code of Criminal Procedure.  The  first  two sub-sections  of  that section are material  here  and  they read:                   "527.  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 682               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,   be   supported  by   affidavit   or               affirmation.     It is conceded by the Advocate General that the power to transfer  criminal  cases  as laid down in  the  section  is ordinarily available but he contends that a case assigned by the  State Government under the Criminal Law Amendment  Act, 1952 to a special Judge cannot be transferred at all because under  the  terms  of that Act, which  is  a  self-contained special law, such a case must be tried by the special  Judge designate  only.   The argument is extremely  plausible  but does  not bear close scrutiny.  To understand  the  argument and  how it is refuted certain provisions of the Act may  be seen.  The first section of the Act gives the short title of the  Act.  Sections 2 and 3 of the Act introduce changes  in the Indian Penal Code by increasing the punishment in s. 165 and  by inserting S. 165A which provides for punishment  for abetment of offences defined in ss. 161 and 165.  Sections 4 and  5  of  the Act make some amendments in s.  164  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

Indian  Penal  Code  and  s. 337 of  the  Code  of  Criminal Procedure.   These four sections have been repealed  by  the Repealing  and  Amending Act, 1957 as they  were  no  longer necessary.   The sections which we have to consider are  ss. 6, 7 and 8 of the Act.  Section 6 confers power on the State Government  to  appoint  special Judges  for  the  trial  of certain offences.  The parts relevant to our purpose read    "6. Power to appoint special judges.    (1)    The  State Government may, by notification in  the official  Gazette, appoint as many special Judges as may  be necessary for such area, or areas as may be specified in the notification to try the following offences, namely :-    (a)    an  offence punishable under section 161,  section 162, section 163, section 164, section 165, or section 165-A of  the Indian Penal Code (Act XLV of 1860), or  sub-section (2)  of section 5 of the Prevention of Corruption Act,  1947 (11 of 1947)    (b)    Any conspiracy to commit or any attempt to  commit or  any abetment of any of the offences specified in  clause (a). 683 Section 7 next provides what cases shall be tried by special Judges.The first two sub-sections read :                  "7.     Cases triable by special Judges.                  (1)     Notwithstanding anything  contained               in the Code of Criminal Procedure, 1898 (Act V               of  1898)  or in any other  law  the  offences               specified  in  sub-section (1)  of  section  6               shall be triable by special Judges only.                  (2)     Every  offence  specified  in  sub-               section (1) of section 6 shall be tried by the               special Judge for the area within which it was               committed,  or  where there are  more  special               Judges than one for such area, by such one  of               them as may be specified in this behalf by the               State               Government." The procedure which the special Judge has to follow is  laid down in s. 8 (1) and by sub-section (2) of the same  section certain  powers  are confered on the  special  Judge.   Sub- section (3) then provides: "8. Procedure and Powers of Special Judges. (1).................................... (2)....................................     (3)   Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall  so  far as they are not inconsistent with  this  Act, apply to the proceedings before a special Judge; and for the purposes  of the said provisions, the Court of  the  Special Judge shall be deemed to be a Court of Session trying  cases without  a  jury  or without the aid of  assessors  and  the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.            .     .      .     .     .     .            .     .      .     .     .      . There  is  no need to refer to other provisions of  the  Act which do, not bear upon this matter.     The Advocate General, Rajasthan in opposing the petition relies, principally on the provisions of s. 7(1) and (2) and contends  that the two sub-sections create two  restrictions which  must  be read together.  The first is  that  offences specified  in s. 6(1) can be tried by special  Judges  only. The second is that every such offence shall be tried by  the special Judge for the area within which it is committed  and if there are more special Judges in that area, by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

684 special  Judge chosen by Government.  These two  conditions, being Statutory, it is submitted no order can be made  under S.  527 be because on transfer, even if a special  Judge  is entrusted with the case, the second condition is bound to be broken.      No  doubt  sub-section (1) of s. 7 lays down  that  the trial  of  an offence specified in sub-section (1) of  s.  6 must  be by a special Judge only but that condition  can  be fully met by transferring the case to another special Judge. Indeed  section  527 itself contemplates that  the  transfer should  be to a court of equal or superior jurisdiction  and we  presume that there are special Judges in every State  of India.    The  selection  of  a  special  Judge  causes   no difficulty.   It  is the second condition  which  is  really pleaded in bar.  The provision of sub-section (2) of s. 7 is that an offence shall be tried by the special Judge for  the area within which it is committed.      This  condition, if literaly understood would  lead  to the conclusion that a case once made over to a special Judge in an area where there is no other special Judge, cannot  be transferred  at all.  This could hardly have been  intended. If  this, were so, the power to transfer a  case  intrastate under s. 526 of the Code of Criminal Procedure, on a  parity of  reasoning,  must  also be lacking.  But  this  Court  in Ramchandra  Prasad v. State of Bihar(1) upheld the  transfer of a case by the High Court which took it to a special Judge who  had no jurisdiction in the area where the  offence  was committed.   In  holding that the transfer  was  valid  this Court relied upon the third sub-section of s. 8 of the  Act. That sub-section preserves the application of any  provision of the Code of Criminal Procedure if it is not  inconsistent with the Act, save as provided in the first two sub-sections of  that section.  The question, therefore, resolves  itself to  this : is there an inconsistency between s. 527  of  the Code and the second sub-section of s. 7 ? The answer is that there  is  none Apparently this Court in  the  earlier  case found no inconsistency and the reasons appear to be these  : The condition that an offence specified in s. 6(2) shall  be tried  by  a special Judge for the area within which  it  is committed  merely specifies which of several special  Judges appointed in the State by the State Government shall try it. The provision is analogous to others under which the  juris- diction of Magistrates and Sessions Judges is determined  on a  territorial  basis.  Enactments in the Code  of  Criminal Procedure  intended to confer territorial jurisdiction  upon courts and Presiding Officers have never been held to  stand in  the  way of transfer of ,criminal  cases  outside  those areas of territorial jurisdiction.  The (1)  [1962] 2 S.C.R. 50. 685 order of transfer when it is made under the powers given  by the Code invests another officer with jurisdiction  although ordinarily he would lack territorial jurisdiction to try the case.  The order of this Court, therefore, which transfer  a case from one special Judge subordinate to one High Court to another  special  Judge subordinate to  another  High  Court creates  jurisdiction in the latter in much the same way  as the transfer by the High Court from one Sessions Judge in  a Session  Division  to  another  Sessions  Judge  in  another Session Division.     There is no comparison between the first sub-section and the second sub-section of s. 7. The condition in the  second sub-section  of  S. 7 is not of the same  character  as  the condition  in the first sub-section.  The first  sub-section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

creates a condition which is a sine qua non for the trial of certain offences.  That condition is  that the trial must be before  a special Judge and laye emphasis on the  fact  that trial  must be before a special Judge appointed for is on  a par  with  the distribution of  work  territorially  between different  Sessions  Judges  and Magistrates.  An  order  of transfer,  by  the very nature of things must,  some  times, result  in  taking  the case out of the  territory  and  the provisions of the Code which are preserved by the third sub- section  of S. 8 must supervene to enable this to E be  done and  the  second sub-section of s, 7 must yield. We  do  not consider  that  this creates any inconsistency  because  the territorial  jurisdiction created by the second  sub-section of  s. 7 operates in a different sphere and under  different circumstances.  Inconsistency  can  only  be  found  if  two provisions  of  law  apply in  identical  circumstances  and create  contradictions.  Such a situation does not  arise  F when  either  this  Court or the High  Court  exercises  its powers  of transfer. We are accordingly of the opinion  that the Supreme Court in exercise of its jurisdiction and  power under s. 527 of the Code of Criminal Procedure can  transfer a case from a special Judge subordinate to one High Court to another special Judge subordinate to another High Court.      This  brings  us to the question of the merits  of  the petition.  The petitioner is being prosecuted  for  offences under s. 120B/161 of the Indian Penal Code and s. 5(1)(a)(d) and   5(2)  of  the  Prevention  of  Corruption   Act.   His apprehension is that the case against him is H    the result of  the  machination  of two Police  Officers  and  one  Mr. Mathura  Dass  Mathur who was the Home Minister  in  1962.He also alleges hostility on the part of the State  Government. He  has given instances which in his opinion prove that  the above two 686 officers,  the  Home Minister and the State  Government  are hostile to him.  In relation to the State Government he  has alleged  that  when he was appointed Commandant of  the  8th Battallion   of  Rajasthan  Armed  Constabulary  the   State Government  down-graded  his post, otherwise he  would  have received  a higher starting pay.  He also alleges  that  his suspension and prosecution were made to coincide     With  his assumption of new duties so that he might  not be  able  to  join his new post. With  regard  to  the  Home Minister the petitioner has given five instances in which he apparently crossed the minister’s path and gave him room for annoyance.   In  regard to the two Police  Officers  he  has averred  that the Deputy Inspector General of Police,  Ajmer Range (Hanuman Prasad Sharma) and he had some differences on three  occasions.   He has also given similar  instances  of hostility  towards him entertained by Sultan  Singh,  Deputy Inspector General of Police.  On the basis of these he  says that he entertains an apprehension that he will not  receive justice in the State of Rajasthan.  The law with  regard  to transfer of cases is well-settled.  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 appre- hension  that justice will not be done in a given case  does not  office.   The  Court has further  to  see  whether  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

apprehension  is  reasonable  or  not.   To  judge  of   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.     Applying these principles it may be said that there is a possibility  that the petitioner entertains an  apprehension that certain persons are hostile to him but his apprehension that  he will not receive justice in the State of  Rajasthan is  not in our opinion reasonable.  All the facts  which  he has  narrated  bear upon past events in his  official  life. Nothing  has been said which will show that there is in  any manner   an  interference  direct  or  indirect   with   the investigation  of  the offences alleged against him  or  the trial  of the case before the special Judge,  Bharatpur.   A general  feeling  that  some  persons  are  hostile  to  the petitioner is not sufficient.  There must be material 687 from  which it can be inferred that the persons who  are  so hostile  are interfering or are likely to  interfere  either directly or indirectly with the course of justice.  Of  this there is no trace either in his petition or in the arguments which  were  advanced before us.  Nor  does  the  petitioner allege anything against the special Judge who is trying  the case.  In this view of the matter we decline to order trans- fer  of  the case from the special  Judge,  Bharatpur.   The petition accordingly fails and will be dismissed.                               Petition dismissed. 688