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CASE NO.: Transfer Petition (crl.)  175 of 2007

PETITIONER: Himanshu Singh Sabharwal

RESPONDENT: State of M.P. and Ors

DATE OF JUDGMENT: 12/03/2008

BENCH: Dr.  ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

TRANSFER PETITION (CRL.)NO. 175/2007 (With Writ Petition (Crl.) No. 173 of 2006)

Dr. ARIJIT PASAYAT, J

1.      Transfer Petition (Crl.) No.175 of 2007 has been filed by  one Himanshu Singh Sabharwal who is the son of late Prof.  H.S. Sabharwal. The background facts as projected by the  petitioner who is also the petitioner in Writ Petition (Crl.)  No.173 of 2006 are as follows:  

Late Prof. H.S. Sabharwal was a professor in Government  College, Ujjain, M.P. He was brutally beaten up by certain  persons, for taking a rigid stand in the college union elections.  Though the assaults were made in the presence of several  police officials, media persons and members of public, attempt  has been made to project as if his death was as a result of an  accident. Initially, First Information Report was lodged and  after investigation charge sheet was filed and charges have  been framed against several persons who are respondents 2 to  7 in the Transfer Petition.  The trial commenced in the Court  of Sessions Judge, Ujjain being Sessions Case No.291 of 2006.  During examination of several witnesses who were stated to be  eye-witnesses, such witnesses resiled from the statements  made during investigation. There were even three police  witnesses who also resiled from their earlier statements. They  are Dhara Singh (PW-32), Sukhnandan (PW-33) and Dilip  Tripathi (PW-34).  

Grievance of the petitioner is that the witnesses have  been coerced, threatened and ultimately justice is a casualty.   Role of the investigating officer gives ample scope to doubt,  impartiality and the sincerity of the investigating agency.   Similar is the position of the public prosecutor. It is also  highlighted that the trial Court also did not make a serious  effort to see that justice is done. In this connection it is  pointed out that public prosecutor did not cross-examine the  persons who had resiled from their statements made during  investigation. This according to the petitioner also shows that  the trial Court did not act as is required under law.  

By order dated 11.7.2007 the proceedings in the sessions  case were stayed. In pursuance of the notice the respondent- State and accused respondents have appeared.   

2.      Mr. Soli J. Sorabjee, learned senior counsel appearing for

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the State of M.P. stated that in the larger interest of justice  and transparency, the State has no objection in case the  Sessions case is transferred to some other State. But  according to him this should not be construed to be  acceptance of the allegations made by the petitioner about the  impartiality of the investigating agency or the public  prosecutor or the manner of trial. According to him, if any  person is guilty he has to be punished and State never had or  has any intention to protect any guilty person. Similar stand  was also adopted by Mr. U.R. Lalit, learned senior counsel  appearing for the accused respondents. To show their bona  fides, it was stated that even the police officials PWs 32, 33  and 34  may be recalled for cross examination even without  any application in terms of Section 311 of the Code of Criminal  Procedure, 1973 (in short the ’Code’) being filed.  

3.      Right from the inception of the judicial system it has  been accepted that discovery, vindication and establishment of  truth are the main purposes underlying existence of Courts of  justice. The operating principles for a fair trial permeate the  common law in both civil and criminal contexts. Application of  these principles involves a delicate judicial balancing of  competing interests in a criminal trial, the interests of the  accused and the public and to a great extent that of the victim  have to be weighed not losing sight of the public interest  involved in the prosecution of persons who commit offences.  

4.      In 1846, in a judgment which Lord Chancellor Selborne  would later describe as "one of the ablest judgments of one of  the ablest judges who ever sat in this court".  Vice-Chancellor  Knight Bruce said:

"The discovery and vindication and  establishment of truth are main purposes  certainly of the existence of Courts of  Justice; still, for the obtaining of these  objects, which, however valuable and  important, cannot be usefully pursued  without moderation, cannot be either  usefully or creditably pursued unfairly or  gained by unfair means, not every  channel is or ought to be open to them.   The practical inefficacy of torture is not, I  suppose, the most weighty objection to  that mode of examination.. Truth, like all  other good things, may be loved unwisely  - may be pursued too keenly - may cost  too much."

The Vice-Chancellor went on to refer to paying "too great a  price... for truth". This is a formulation which has  subsequently been frequently invoked, including by Sir Gerard  Brennan. On another occasion, in a joint judgment of the High  Court, a more expansive formulation of the proposition was  advanced in the following terms: "The evidence has been  obtained at a price which is unacceptable having regard to  prevailing community standards."

5.      Restraints on the processes for determining the truth are  multi-faceted. They have emerged in numerous different ways,  at different times and affect different areas of the conduct of  legal proceedings. By the traditional common law method of  induction there has emerged in our jurisprudence the  principle of a fair trial. Oliver Wendell Holmes described the  process:

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"It is the merit of the common law that it  decides the case first and determines the  principle afterwards ... It is only after a  series of determination on the same  subject-matter, that it becomes necessary  to "reconcile the cases", as it s called,  that is, by a true induction to state the  principle which has until then been  obscurely felt.  And this statement is  often modified more than once by new  decisions before the abstracted general  rule takes its final shape. A well settled  legal doctrine embodies the work of many  minds, and has been tested in form as  well as substance by trained critics  whose practical interest is to resist it at  every step."

6.      The principle of fair trial now informs and energises  many areas of the law. It is reflected in numerous rules and  practices. It is a constant, ongoing development process  continually adapted to new and changing circumstances, and  exigencies of the situation - peculiar at times and related to  the nature of crime, persons involved - directly or operating  behind, social impact and societal needs and even so many  powerful balancing factors which may come in the way of  administration of criminal justice system.    

7.      As will presently appear, the principle of a fair trial  manifests itself in virtually every aspect of our practice and  procedure, including the laws of evidence.  There is, however,  an overriding and, perhaps, unifying principle. As Deane J put  it:

"It is desirable that the requirement of  fairness be separately identified since it  transcends the content of more  particularized legal rules and principles  and provides the ultimate rationale and  touchstone of the rules and practices  which the common law requires to be  observed in the administration of the  substantive criminal law".

                 8.      This Court has often emphasised that in a criminal case  the fate of the proceedings cannot always be left entirely in the  hands of the parties, crimes being public wrongs in breach  and violation of public rights and duties, which affect the  whole community as a community and harmful to the society  in general. The concept of fair trial entails familiar  triangulation of interests of the accused, the victim and the  society and it is the community that acts through the State  and prosecuting agencies. Interests of society is not to be  treated completely with disdain and as persona non grata.  Courts have always been considered to have an over-riding  duty to maintain public confidence in the administration of  justice - often referred to as the duty to vindicate and uphold  the ’majesty of the law’. Due administration of justice has  always been viewed as a continuous process, not confined to  determination of the particular case, protecting its ability to  function as a Court of law in the future as in the case before it.  If a criminal Court is to be an effective instrument in

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dispensing justice, the Presiding Judge must cease to be a  spectator and a mere recording machine by becoming a  participant in the trial evincing intelligence, active interest and  elicit all relevant materials necessary for reaching the correct  conclusion, to find out the truth, and administer justice with  fairness and impartiality both to the parties and to the  community it serves. Courts administering criminal justice  cannot turn a blind eye to vexatious or oppressive conduct  that has occurred in relation to proceedings, even if a fair trial  is still possible, except at the risk of undermining the fair  name and standing of the judges as impartial and independent  adjudicators.

9.      The principles of rule of law and due process are closely  linked with human rights protection. Such rights can be  protected effectively when a citizen has recourse to the Courts  of law. It has to be unmistakably understood that a trial which  is primarily aimed at ascertaining truth has to be fair to all  concerned. There can be no analytical, all comprehensive or  exhaustive definition of the concept of a fair trial, and it may  have to be determined in seemingly infinite variety of actual  situations with the ultimate object in mind viz. whether  something that was done or said either before or at the trial  deprived the quality of fairness to a degree where a  miscarriage of justice has resulted. It will not be correct to say  that it is only the accused who must be fairly dealt with. That  would be turning Nelson’s eyes to the needs of the society at  large and the victims or their family members and relatives.  Each one has an inbuilt right to be dealt with fairly in a  criminal trial. Denial of a fair trial is as much injustice to the  accused as is to the victim and the society. Fair trial obviously  would mean a trial before an impartial Judge, a fair prosecutor  and atmosphere of judicial calm. Fair trial means a trial in  which bias or prejudice for or against the accused, the  witnesses, or the cause which is being tried is eliminated. If  the witnesses get threatened or are forced to give false  evidence that also would not result in a fair trial. The failure to  hear material witnesses is certainly denial of fair trial.  

10.     While dealing with the claims for the transfer of a case  under Section 406 of the Code from one State to another this  Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani  Jethmalani (1979 (4) SCC 167), emphasised the necessity to  ensure fair trial, observing as hereunder: "Assurance of a fair trial is the first  imperative of the dispensation of justice and  the central criterion for the court to consider  when a motion for transfer is made is not the  hypersensitivity or relative convenience of a  party or easy availability of legal services or  like mini-grievances. Something more  substantial, more compelling, more  imperilling, from the point of view of public  justice and its attendant environment, is  necessitous if the Court is to exercise its power  of transfer. This is the cardinal principle  although the circumstances may be myriad  and vary from case to case. We have to test the  petitioner’s grounds on this touchstone  bearing in mind the rule that normally the  complainant has the right to choose any court  having jurisdiction and the accused cannot  dictate where the case against him should be  tried. Even so, the process of justice should  not harass the parties and from that angle the

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court may weigh the circumstances.          A more serious ground which disturbs us  in more ways than one is the alleged absence  of congenial atmosphere for a fair and  impartial trial. It is becoming a frequent  phenomenon in our country that court  proceedings are being disturbed by rude  hoodlums and unruly crowds, jostling, jeering  or cheering and disrupting the judicial hearing  with menaces, noises and worse. This  tendency of toughs and street roughs to violate  the serenity of court is obstructive of the  course of justice and must surely be stamped  out. Likewise, the safety of the person of an  accused or complainant is an essential  condition for participation in a trial and where  that is put in peril by commotion, tumult or  threat on account of pathological conditions  prevalent in a particular venue, the request for  a transfer may not be dismissed summarily. It  causes disquiet and concern to a court of  justice if a person seeking justice is unable to  appear, present one’s case, bring one’s  witnesses or adduce evidence. Indeed, it is the  duty of the court to assure propitious  conditions which conduce to comparative  tranquility at the trial. Turbulent conditions  putting the accused’s life in danger or creating  chaos inside the court hall may jettison public  justice. If this vice is peculiar to a particular  place and is persistent the transfer of the case  from that place may become necessary.  Likewise, if there is general consternation or  atmosphere of tension or raging masses of  people in the entire region taking sides and  polluting the climate, vitiating the necessary  neutrality to hold detached judicial trial, the  situation may be said to have deteriorated to  such an extent as to warrant transfer. In a  decision cited by the counsel for the petitioner,  Bose, J., observed :  .... But we do feel that good grounds  for transfer from Jashpurnagar are  made out because of the bitterness  of local communal feeling and the  tenseness of the atmosphere there.  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". (G. X.  Francis v. Banke Behari Singh, AIR  1958 SC 309)          Accepting this perspective we must  approach the facts of the present case without  excitement, exaggeration or eclipse of a sense  of proportion. It may be true that the petitioner

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attracts a crowd in Bombay. Indeed, it is true  of many controversial figures in public life that  their presence in a public place gathers  partisans for and against, leading to cries and  catcalls or ’jais’ or ’zindabads’. Nor is it  unnatural that some persons may have  acquired, for a time a certain quality of  reputation, sometimes notoriety, sometimes  glory, which may make them the cynosure of  popular attention when they appear in cities  even in a court. And when unkempt crowds  press into a court hall it is possible that some  pushing, some nudging, some brash ogling or  angry staring may occur in the rough and  tumble resulting in ruffled feelings for the  victim. This is a far cry from saying that the  peace inside the court has broken down, that  calm inside the court is beyond restoration,  that a tranquil atmosphere for holding the trial  is beyond accomplishment or that operational  freedom for judge, parties, advocates and  witnesses has creased to exist. None of the  allegations made by the petitioner, read in the  pragmatic light of the counter-averments of the  respondent and understood realistically,  makes the contention of the counsel credible  that a fair trial is impossible. Perhaps, there  was some rough weather but it subsided, and  it was a storm in the tea cup or transient  tension to exaggerate which is unwarranted.  The petitioner’s case of great insecurity or  molestation to the point of threat to life is, so  far as the record bears out, difficult to accept.  The mere word of an interested party is  insufficient to convince us that she is in  jeopardy or the court may not be able to  conduct the case under conditions of  detachment, neutrality or uninterrupted  progress. We are disinclined to stampede  ourselves into conceding a transfer of the case  on this score, as things stand now.          Nevertheless, we cannot view with  unconcern the potentiality of a flare up and  the challenge to a fair trial, in the sense of a  satisfactory participation by the accused in the  proceedings against her. Mob action may  throw out of gear the wheels of the judicial  process. Engineered fury may paralyse a  party’s ability to present his case or participate  in the trial. If the justice system grinds to a  halt through physical manoeuvres or sound  and fury of the senseless populace the rule of  law runs aground. Even the most hated  human anathema has a right to be heard  without the rage of ruffians or huff of toughs  being turned against him to unnerve him as  party or witness or advocate. Physical violence  to a party, actual or imminent, is  reprehensible when he seeks justice before a  tribunal. Manageable solutions must not  sweep this Court off its feet into granting an  easy transfer but uncontrollable or perilous  deterioration will surely persuade us to shift  the venue. It depends. The frequency of  mobbing manoeuvres in court precincts is a

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bad omen for social justice in its wider  connotation. We, therefore, think it necessary  to make a few cautionary observations which  will be sufficient, as we see at present, to  protect the petitioner and ensure for her a fair  trial.  

11.     A criminal trial is a judicial examination of the issues in  the case and its purpose is to arrive at a judgment on an issue  as a fact or relevant facts which may lead to the discovery of  the fact issue and obtain proof of such facts at which the  prosecution and the accused have arrived by their pleadings;  the controlling question being the guilt or innocence of the  accused. Since the object is to mete out justice and to convict  the guilty and protect the innocent, the trial should be a  search for the truth and not a bout over technicalities, and  must be conducted under such rules as will protect the  innocent, and punish the guilty. The proof of charge which has  to be beyond reasonable doubt must depend upon judicial  evaluation of the totality of the evidence, oral and  circumstantial and not by an isolated scrutiny.    

12.     Failure to accord fair hearing either to the accused or the  prosecution violates even minimum standards of due process  of law. It is inherent in the concept of due process of law, that  condemnation should be rendered only after the trial in which  the hearing is a real one, not sham or a mere farce and  pretence. Since the fair hearing requires an opportunity to  preserve the process, it may be vitiated and violated by an  overhasty stage-managed, tailored and partisan trial.  

13.     The fair trial for a criminal offence consists not only in  technical observance of the frame and forms of law, but also in  recognition and just application of its principles in substance,  to find out the truth and prevent miscarriage of justice.   

14.     "Witnesses" as Benthem said: are the eyes and ears of  justice. Hence, the importance and primacy of the quality of  trial process. If the witness himself is incapacitated from  acting as eyes and ears of justice, the trial gets putrefied and  paralysed, and it no longer can constitute a fair trial. The  incapacitation may be due to several factors like the witness  being not in a position for reasons beyond control to speak the  truth in the Court or due to negligence or ignorance or some  corrupt collusion. Time has become ripe to act on account of  numerous experiences faced by Courts on account of frequent  turning of witnesses as hostile, either due to threats, coercion,  lures and monetary considerations at the instance of those in  power, their henchmen and hirelings, political clouts and  patronage and innumerable other corrupt practices  ingenuously adopted to smoother and stifle truth and realities  coming out to surface rendering truth and justice, to become  ultimate casualties. Broader public and societal interests  require that the victims of the crime who are not ordinarily  parties to prosecution and the interests of State represented  by their prosecuting agencies do not suffer even in slow  process but irreversibly and irretrievably, which if allowed  would undermine and destroy public confidence in the  administration of justice, which may ultimately pave way for  anarchy, oppression and injustice resulting in complete  breakdown and collapse of the edifice of rule of law, enshrined  and jealously guarded and protected by the Constitution.   There comes the need for protecting the witness. Time has  come when serious and undiluted thoughts are to be bestowed  for protecting witnesses so that ultimate truth is presented

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before the Court and justice triumphs and the trial is not  reduced to mockery. The State has a definite role to play in  protecting the witnesses, to start with at least in sensitive  cases involving those in power, who has political patronage  and could wield muscle and money power, to avert trial getting  tainted and derailed and truth becoming a casualty. As a  protector of its citizens it has to ensure that during a trial in  Court the witness could safely depose truth without any fear  of being haunted by those against whom he has deposed.  Some legislative enactments like the Terrorist and Disruptive  Activities (Prevention) Act, 1987 (in short the ’TADA Act’) have  taken note of the reluctance shown by witnesses to depose  against dangerous criminals-terrorists. In a milder form also  the reluctance and the hesitation of witnesses to depose  against people with muscle power, money power or political  power has become the order of the day. If ultimately truth is to  be arrived at, the eyes and ears of justice have to be protected  so that the interests of justice do not get incapacitated in the  sense of making the proceedings before Courts mere mock  trials as are usually seen in movies.  

15.     Legislative measures to emphasise prohibition against  tampering with witness, victim or informant have become the  imminent and inevitable need of the day. Conducts which  illegitimately affect the presentation of evidence in proceedings  before the Courts have to be seriously and sternly dealt with.  There should not be any undue anxiety to only protect the  interest of the accused. That would be unfair as noted above to  the needs of the society. On the contrary, the efforts should be  to ensure fair trial where the accused and the prosecution  both get a fair deal. Public interest in the proper  administration of justice must be given as much importance if  not more, as the interests of the individual accused. In this  courts have a vital role to play.                                                                                                                                                       16.     The Courts have to take a participatory role in a trial.  They are not expected to be tape recorders to record whatever  is being stated by the witnesses. Section 311 of the Code and  Section 165 of the Evidence Act confer vast and wide powers  on Presiding Officers of Court to elicit all necessary materials  by playing an active role in the evidence collecting process.  They have to monitor the proceedings in aid of justice in a  manner that something, which is not relevant, is not  unnecessarily brought into record. Even if the prosecutor is  remiss in some ways, it can control the proceedings effectively  so that ultimate objective i.e. truth is arrived at. This becomes  more necessary where the Court has reasons to believe that  the prosecuting agency or the prosecutor is not acting in the  requisite manner. The Court cannot afford to be wishfully or  pretend to be blissfully ignorant or oblivious to such serious  pitfalls or dereliction of duty on the part of the prosecuting  agency.  The prosecutor who does not act fairly and acts more  like a counsel for the defence is a liability to the fair judicial  system, and Courts could not also play into the hands of such  prosecuting agency showing indifference or adopting an  attitude of total aloofness.   17.     The power of the Court under Section 165 of the   Evidence Act is in a way complementary to its power under  Section 311 of the Code. The section consists of two parts i.e  (i) giving a discretion to the Court to examine the witness at  any stage and (ii) the mandatory portion which compels the  Court to examine a witness if his evidence appears to be  essential to the just decision of the Court. Though the

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discretion given to the Court is very wide, the very width  requires a corresponding caution. In Mohan Lal v. Union of  India (1991 Supp (1) SCC 271) this Court has observed, while  considering the scope and ambit of Section 311, that the very  usage of the word such as, ’any Court’ ’at any stage’, or ’any  enquiry or trial or other proceedings’ ’any person’ and ’any  such person’ clearly spells out that the Section has expressed  in the widest possible terms and do not limit the discretion of  the Court in any way. However, as noted above, the very width  requires a corresponding caution that the discretionary powers  should be invoked as the exigencies of justice require and  exercised judicially with circumspection and consistently with  the provisions of the Code. The second part of the section does  not allow any discretion but obligates and binds the Court to  take necessary steps if the fresh evidence to be obtained is  essential to the just decision of the case - ’essential’, to an  active and alert mind and not to one which is bent to abandon  or abdicate. Object of the Section is to enable the Court to  arrive at the truth irrespective of the fact that the prosecution  or the defence has failed to produce some evidence which is  necessary for a just and proper disposal of the case. The power  is exercised and the evidence is examined neither to help the  prosecution nor the defence, if the Court feels that there is  necessity to act in terms of Section 311 but only to subserve  the cause of justice and public interest. It is done with an  object of getting the evidence in aid of a just decision and to  uphold the truth.   

18.     We are echoing the view succinctly stated in Zahira  Habibulla H. Sheika and Anr. v. State of Gujarat and Ors.  (2004 (4) SCC 158).  

19.     We appreciate the fair stand of the State as presented by  Mr. Sorabjee and learned counsel for the accused persons.  Without, therefore, examining the correctness of the  allegations made, we direct that the case in question i.e.  Sessions Case No.291 of 2006 pending in the Court of  Sessions Judge, Ujjain be transferred to the Court of Sessions  Judge, Nagpur, Maharashtra. It shall be open to the learned  Sessions Judge to either deal with the case himself or to allot  it to an appropriate Court.  The trial will commence from the  stage at which it was when the order of stay was passed by  this Court. The petitioner who is the son of the deceased in the  peculiar facts of the case is permitted to suggest two names to  function as public prosecutor. Similarly, two names shall be  given by the respondent-State. It shall be for the learned  Sessions Judge, Nagpur to appoint a public prosecutor from  the names to be suggested. The fees and other expenses of the  public prosecutor shall be borne by the State of M.P. It shall  be open to the public prosecutor to be appointed to seek recall  of any witness already examined in terms of Section 311 of  Code. This shall be in addition to PWs. 32, 33 and 34 about  whom directions have been given earlier in this order.  

20.     The Transfer Petition is accordingly disposed of. In view  of the orders passed in T.P.(Crl.) 175 of 2007, no further order  is necessary to be passed in W.P.(Crl.) 173 of 2006 and same  is accordingly disposed of.