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PETITIONER: HAZARA SINGH GILL

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 10/05/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. SHAH, J.C.

CITATION:  1965 AIR  720            1964 SCR  (4)   1  CITATOR INFO :  F          1986 SC1896  (6)

ACT: Criminal   Trial-Transfer  petition-serious   allegations-No affidavit  in reply-Duty of the Court --- Code  of  Criminal Procedure, 1898 (Act 5 of 1898), s. 527.

HEADNOTE: Where  in  a petition for transfer of  criminal  case,  very serious allegations are made by the petitioner on  affidavit which  are  not denied specifically by the other  side  this court must go by the affidavit filed by the petitioner.   In proceedings  of  this  kind,  the  court  does  not  examine witnesses in support of allegations of fact made bay  either side.  Ordinarily, the court acts upon the affidavit of  one aside  or other, but if one side omits to make an  affidavit in   reply,  the  affidavit  of  the  other   side   remains uncontroversial. Held, that where the petitioner, as in the present case, has by his affidavit made out a sufficient case from which it is possible   for  the  court  to  infer  that  he   reasonably entertains apprehension that he would not get justice in his case,  the interests of justice demand that the case  should be transferred outside the State.

JUDGMENT: ORIGINAL JURISDICTION : Transfer Petition No. 9 of 1963. Petition  under S. 527 Criminal Procedure Code for  Transfer of  cases  Nos. 33/3 and 33/4 of 1963, under S.  52  of  the Prisons  Act, pending in the Court of Magistrate Ist  Class, Amritsar, to a competent Court outside the State of Punjab. G.   S. Vohra and Harbans Singh, for the petitioner. L.   D.  Kaushal, Deputy Advocate-General for the  State  of Punjab and P. D. Menon, for the respondent. May 10, 1963.  The Judgment of the court was delivered by HIDAYATULLAH J.-This is a petition by one Hazara Singh  Gill for  the transfer of two criminal cases (Nos. 33/3 and  33/4 of  1963) under S. 52 of the Prisons Act, pending for  trial in  the  court of Mr. Sant Singh, Magistrate,  First  Class,

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Amritsar.   The  petitioner  requests that  these  cases  be transferred  outside the State of Punjab for disposal.   The facts, in so far as they have been admitted by the State  of Punjab, are as follows: The petitioner is a resident of village Rattoke in the 2 Amritsar  District.  He was elected as member of the  Punjab Vidhan  Sabha in the last General Elections after  defeating S. Hardip Singh, the brother-in-law of the Chief Minister of the  State.   S. Surrinder Singh Kairon, son  of  the  Chief Minister,  and  S. Ranjit Singh Grewal, who  was  posted  as Senior  Superintendent of Police at Amritsar,  have  married sisters.  S. Mukund Singh, the father-in-law of S. Surrinder Singh,  owned  vast  lands.  S. Mukund  Singh  died  without leaving  any male issue and the estate came under the  Court of Wards, and the petitioner obtained some of the lands from the Court of Wards.  In May, 1960, the agitation for what is described  as  the  ’Punjabi  Suba’  was  started  and   the petitioner  was  arrested under ss.  411/414,  Indian  Penal Code,  and a report was sent against him under  s.  107/151, Cr.   P. C., and a warrant was also issued.  The  petitioner was  held for interrogation on a remand by the  court.   The petitioner  was also arrested in a case under the Arms  Act, and another, under the Indian Opium Act.  His father and six others were arrested on 26-1-1961 under s. 107/151, Cr.   P. C., but were discharged as a result of compromise in  court. The  petitioner  was convicted and sentenced to  two  years’ rigorous  imprisonment  in the case under the Arms  Act  and that  sentence  has been upheld by the High Court.   He  was also convicted in a case under the Prisons Act and sentenced to  six  months’ rigorous imprisonment, which  sentence  was also  confirmed by the High Court.  These sentences  are  to run  consecutively.  The two cases in which the transfer  is asked for are now pending and they have been referred to the Magistrate  by  the  Superintendent,  Jail,  Amritsar.   The petitioner  points  out that another petition  of  S.  Mohan Singh  Tur was transferred from the Punjab to Saharanpur  by this Court. What is not admitted or evasively denied in the affidavit of the  State Government are the following facts stated by  the petitioner  on affidavit : After his election to the  Vidhan Sabha, he has not been able to attend any meeting because he has  been arrested and continuously kept in ’ail,  that  the petitioner  is  a  protagonist  of  the  Punjabi  Suba,  and supported  the Akali candidates as against the  Sadh  Sangat Board which is supported by the Chief Minister; and that  in the criminal cases in which the Peti- 3 tioner was arrested, a bail of rupees one lakh was  demanded from him as also from his father and six others.  Since such a  heavy  bail could not be furnished, his  father  and  the other  persons languished in jail for four months till  they were  discharged on compromise in court, while he  continued in  jail.   Further,  a  suit has  been  filed  against  the petitioner  by the widow of S. Mukund Singh for  Rs.  12,500 for  arrears  of rent and for eviction, and in  the  written statement  made  by  the petitioner in  that  suit,  he  has alleged that the Court of Wards is being specially continued to  save  the  application of the ceilings on  land  to  the property  left by S. Mukund Singh.  The petitioner has  also claimed in that suit that if the arrears of rent have to  be paid,  they  are payable only by S. Surrinder Singh  and  S. Ranjit Singh Grewal.  This has annoyed them.  Further, while he  was in jail, S. Surrinder Singh with police  force  took possession  of  the lands in September, 1960, and  though  a

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criminal complaint was filed against S. Surrinder Singh  for threatening the petitioner’s wife with a gun, the  complaint was dismissed by the court for default of appearance of  the petitioner  as he was in jail and could not attend  it.   He alleged   that  the  Superintendent,  jail,  has   purposely referred  these cases to the Magistrate instead  of  dealing with  them  himself, so that a severe  punishment  might  be imposed  upon the petitioner, and the intention is  to  keep him in jail, so that he may be kept away from his lands, his property and his other amenities. These  further  allegations,  which  have  not  been  either admitted or denied, are of a very serious character, and one would  have expected that an affidavit in reply  would  have been  filed  at  least in respect of some of  them,  as  for example,  that the Magistrate had asked for excessive  bail, or  that the criminal complaint stood dismissed because  the petitioner  could  not attend his case.   These  allegations could have been either admitted or stated to be false  after looking into the records of the case.  Further, the personal aspersions  against  the  Chief  Minister  and  the   Senior Superintendent  of Police, Amritsar, who have  been  charged with improper conduct by taking advantage of their  official position,  should have been denied by them on affidavit,  if they were untrue. 4 In  the  absence of any specific denial on the part  of  the State,  the Chief Minister and the Superintendent of  Police concerned, we must reluctantly go by the affidavit filed  by the  petitioner.  In proceedings of this kind, it should  be known  that the Court does not examine witnesses in  support of allegations of fact made by either side.  Ordinarily, the Court  acts  upon the affidavit of one side or that  of  the other.  But if one side omits to make an affidavit in  reply the affidavit of the other side remains uncontroverted. In  the  present  case, the petitioner  has  asked  for  the transfer  of  the cases from the State of  Punjab,  and  his allegation  is  that  as  there  is  no  separation  of  the Judiciary  from the Executive, the magistracy is  under  the control of the Executive and he would not get justice at the hands  of  any  magistrate  in  the  State.   No  doubt,  an allegation  of this type cannot be accepted, because  it  is impossible to think that there is no magistrate in the whole State  who can rise above pressure, if any, brought  by  the Executive.  However, the question is not one of finding such a magistrate and entrusting the cases to him.  The  question really  is whether the petitioner can be said  to  entertain reasonably  an apprehension that he would not  get  justice. One  of the highest principles in the administration of  law is  that justice should not only be done but should be  seen to  be  done.   In  the  present  case,  there  is   ,enough allegation  to show that certain strong parties are  opposed to  the  petitioner  in various ways.   Whether  they  would exercise  any  influence  upon the  magistracy  and  whether magistracy  would be able to withstand such a  pressure,  if made,  is  not germane to the present petition.  We  are  of opinion that the petitioner has, by his affidavit, made  out sufficient circumstances from which it can be inferred  that he does entertain, and entertain reasonably, an apprehension that  he would not get justice in these cases.   In  similar circumstances,  this Court has not hesitated on  an  earlier occasion  to  transfer certain cases outside  the  State  of Punjab.   In  our opinion, the present case is also  one  in which the interests of justice demand that the cases  should be transferred outside the State of Punjab.  We direct  that the two cases shall be transferred to Sharanpur District and

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shall be tried there by a Magis- 5 trate  who  shall be chosen by the  District  Magistrate  of Saharanpur for their disposal according to law. Petition allowed.