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CASE NO.: Appeal (crl.)  241 of 2007

PETITIONER: Satish Jaggi

RESPONDENT: State of Chhattisgarh & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising Out of S.L.P (Crl.) No. 6154 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the order passed by a  learned Single Judge of the Chhattisgarh High Court  dismissing the transfer petition filed under Section 407 of the  Code of Criminal Procedure, 1973 (for short ’the Code’) for  transferring of Sessions Trial no.329/2005 (State through CBI  v. Amit Jogi and 30 others), pending in the Court of Sessions  Judge, Raipur, Chhattisgarh to some other Court. The transfer  was sought for primarily on the ground that the Sessions  Judge before whom the trial was pending is the elder brother  of a sitting MLA who is very close to the father of respondent  no.3, one of the main accused persons. It was alleged that the  father of respondent no. 3 was the previous Chief Minister of  the state and that he and the brother of the Learned Sessions  Judge belong to the same political party. It was further stated  that the said MLA was very close to the father of respondent  no.3 who was earlier the Chief Minister of the State.   Therefore, according to the appellant, he was under a bona  fide and genuine apprehension that he will not get justice if  the trial is conducted and concluded by the present Sessions  Judge.  It was also stated that the major part of the trial was  conducted by the third Additional Sessions Judge, Raipur. By  order dated 21.6.2006 the case was transferred to the Court of  the Session Judge, Raipur (Shri R. S. Sharma) who examined  four prosecution witnesses and 21 defence witnesses. At that  stage, Shri R. S. Sharma was transferred as Sessions Judge,  Janigir- Champa and Shri Sanman Singh was posted in his  place as the Sessions Judge. Therefore, prayer was made to  transfer to the Court of Sessions Judge, Janigir-Champa,  where the previous Sessions Judge was posted so that he  could conclude the trial by camping at Raipur for that  purpose.  The High Court held that assurance of fair trial is  imperative for the dispensing of justice and the primary  consideration for the Court is to consider whether a motion of  transfer is made out and the High Court is not required to lay  stress on hypersensitivity or relative convenience of a party.   The High Court felt that the grounds set forth by the appellant  seeking transfer cannot be considered to be sufficient to direct

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transfer. Merely because the brother of the trial Judge was a  sitting MLA, that cannot be a ground to prima facie come to a  conclusion that there would be pressure through either by the  brother or father of the accused who was supposed to be close  to his brother.  It was further noted that the trial is at a final  stage and about 150 prosecution witnesses and all the defence  witnesses have been examined and what remains to be done is  to hear the arguments and pass the judgment.  Therefore, the  prayer was rejected.

Learned counsel for the appellant submitted that  ultimately administration of justice rests on many principles  and one of the fundamental principles is that justice should  not only be done but it should be seen to be done.  The  present case is not one where a mere allegation is made.   There is no dispute that the brother of the present Sessions  Judge is a sitting MLA belonging to a particular party of which  respondent no.3’s father was earlier the leader and the Chief  Minister.

Mr. K.K. Venugopal,  learned senior advocate, appearing  for some of the respondents submitted that if the allegation is  accepted it would be doubting the impartiality of the present  Sessions Judge.  There is no material to show that the Judge  has any bias or any partisan attitude. The fortuitous  circumstances that his brother is an MLA cannot be a factor to  doubt the judicial discipline of the Sessions Judge.

The law with regard to transfer of cases is well settled.  This Court in the matter of Gurcharan Dass Chadha v. State  of Rajasthan (AIR 1966 SC 1418) held that 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. This Court said  that 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.  This Court further held that it is one  of the principles of the administration of justice that justice  should not be done but it should be seen to be done. The court  has further to see whether the apprehension is reasonable or  not.  This Court also said that to judge 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.

It was further held by this Court in Mrs. Maneka Sanjay  Gandhi and Anr. V. Miss Rani Jethmalani (AIR 1979 SC 468)  that 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  availability of legal services or any like grievance.  Something  more substantial, more compelling, more imperiling, 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.  This Court, in the facts  and circumstances of the case, said that the grounds for the  transfer have to be tested 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.  It further said  that even so, the process of justice should not harass the

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parties and from that angle the court may weigh the  circumstances.

In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000  SC 2293) this Court stated that the purpose of the criminal  trial 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 a case within  the State under Section 407 and anywhere in the country  under Section 406 of the Code.  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. 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. The  convenience of the parties does not necessarily mean the  convenience of the petitioners alone who approached the court  on misconceived notions of apprehension. Convenience for the  purposes of transfer means the convenience of the  prosecution, other accused, if any, the witnesses and the  larger interest of the society.  In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309)  this Court felt that where public confidence in the fairness of  the trial is likely to be seriously undermined under the  circumstances of the case, transfer petition could be allowed.  On finding that "there is uniformity of testimony from both  sides about the nature of surcharged communal tension in  that area," the Court found that the local atmosphere was not  conducive to a fair and impartial trial which was a good  ground for transfer. The court rejected the contention of the  petitioner therein regarding the wild allegations made to the  effect that no court in the State of M.P. would be unbiased or  impartial for dispensing justice. In the peculiar facts and  circumstances of the case, the trial was transferred to an  adjoining court. The mere existence of a surcharged  atmosphere without there being proof of inability for holding  fair and impartial trial cannot be made a ground for transfer of  a case. Alleged communally surcharged atmosphere has to be  considered in the light of the accusations made and the nature  of the crime committed by the accused seeking transfer of his  case. It will be unsafe to hold that as and when accusations  are made regarding the existence of a surcharged communal  atmosphere, the case should be transferred from the area  where existence of such surcharged atmosphere is alleged.

The position was also examined in Pal Singh and Anr. V.  Central Bureau of Investigation and Ors. (2005 (12) SCC 329).  In that case, considering the fact that large number of  witnesses had been examined and few more witnesses were  left to be examined, this Court set aside the order of the High  Court transferring the case from one Sessions Court to  another.  The High Court was, therefore, held to be not  justified in entertaining the petition for transfer.   

In this case, one thing which has to be kept in view is

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that the Sessions Judge himself has not indicated his  disinclination to hear the matter. That is probably because he  believes that the mere fact that his brother is known to some  political heavyweight cannot stand in his way of discharging  judicial function impartially without fear and favour.  These  are the hallmarks of judicial system.  A judicial officer in  whatever capacity he may be functioning has to act with the  belief that he is not to be guided by any factor other than to  ensure that he shall render a free and fair decision which  according to his conscience is the right one on the basis of  materials placed before him.  There can be no exceptions to  this imperative, but at the same time there should not be any  scope given to any person to go away with the feeling that the  Judge was biased, however unfounded the impression may be.  The qualities desired of a Judge can be simply stated: "that if  he be a good one and that he be thought to be so". Such  credentials are not easily acquired. The Judge needs to have  "the strength to put an end to injustice" and "the faculties that  are demanded of the historian and the philosopher and the  prophet". A few paragraphs from the book "Judges" by David  Pannick which are often quoted need to be set out here: "The Judge has burdensome responsibilities to  discharge. He has power over the lives and  livelihood of all those litigants who enter his  court\005.His decisions may well affect the  interests of individuals and groups who are not  present or represented in court. If he is not  careful, the judge may precipitate a civil war\005.  Or he may accelerate a revolution\005.He may  accidentally cause a peaceful but fundamental  change in the political complexion of the  country.

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Judges today face tribulations, as well as  trials, not contemplated by their  predecessors\005.Parliament has recognized the  pressures of the job by providing that before  the Lord Chancellor recommends anyone to  the Queen for appointment to the Circuit  Bench, the Lord Chancellor ’shall take steps to  satisfy himself that the person’s health is  satisfactory’\005.. This seems essential in the  light of the reminiscences of Lord Roskill as to  the mental strain which the job can  impose\005.Lord Roskill added that, in his  experience, ’the workload is intolerable: seven  days a week, 14 hours a day’\005

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       He (judge) is a symbol of that strange  mixture of reality and illusion, democracy and  privilege, humbug and decency , the subtle  network of compromises, by which the nation  keeps itself in its familiar shape". (See Brij  Mohan Lal v. Union of India and Ors. (2002 (5)  SCC 1)

We are sure that the present Sessions Judge would have  acted in the true sense of a judicial officer. But nevertheless to  ensure that justice is not only done, but also seen to be done  and the peculiar facts of the case, we feel that it will be  appropriate if the High Court transfers the case to some other

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Sessions Court in Raipur itself. We make it clear that the  transfer shall not be construed as casting any aspersion on  the Learned Sessions Judge. The Trial Court before whom the  trial is to continue should ensure that the trial is completed by  the end of May, 2007. Needless to say, the parties shall co- operate in the completion of the trial within the said time.

The appeal is accordingly disposed of.