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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1592-1593 of 2015

(@ S.L.P. (Criminal) Nos. 9374-9375 of 2015)

Usmangani Adambhai Vahora …Appellant

Versus

State of Gujarat & Anr. …Respondents

JUDGMENT

Dipak Misra, J.

The seminal issue that has emerged for consideration

in these appeals is whether the High Court in exercise of

jurisdiction under Article 227 of the Constitution of India is

justified in quashing the order dated 14.08.2015 passed by

the Principal Sessions Judge, Kheda at Nadiad in Criminal

Miscellaneous Application No. 545 of 2015 arising from the

Sessions Case No. 291 of 2003 instituted for the offences

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punishable under Sections 147, 148, 149, 364A, 120B, 447,

342 and 506(2) of the Indian Penal Code (IPC) and further

directing the learned Principal Sessions Judge to transfer

the Sessions Case to any other court of the learned

Additional Sessions Judge in the same Sessions Division

from the court of the 3rd Additional Sessions Judge, Kheda.

2. Be it stated at the beginning, the High Court has posed

two questions – one of which pertains to exercise of power

under sub-section (1) of Section 408 of the Code of Criminal

Procedure, 1973 (CrPC) by the Sessions Judge to transfer a

case from one Additional Sessions Judge to any other

Additional Sessions Judge in his Sessions Division after

commencement of the trial, and the other, whether the case

deserves to be transferred. Answering the first issue, the

High Court has opined that the transfer petition preferred

under Section 408 CrPC before the learned Principal

Sessions Judge is maintainable. The view expressed by the

High Court on this score appears to be correct and hence,

we affirm the same. The principal issue warranting

delineation is the justification for allowing application for

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transfer from the court where the trial was pending to the

court of another learned Additional Sessions Judge.

3. The facts which are essential to be stated are that the

2nd respondent faced trial for the offences mentioned

hereinbefore in Sessions Case No. 291 of 2003. After

examination of 18 prosecution witnesses, the informant

preferred an application under Section 319 CrPC for

arraigning one Natubhai Maganbhai Edanwala as an

accused in the sessions case. The said application was

rejected by the learned trial judge vide order dated

18.05.2006. Aggrieved by the aforesaid rejection, the

informant preferred Special Criminal Application No. 1444

of 2006 before the High Court which vide order dated

02.12.2011 rejected the same. The said order was assailed

before this Court in Special Leave Petition (Criminal) No.

17262 of 2012 which was dismissed on 11.01.2013 with the

observation that it would be open to the informant to file an

appropriate application under Section 319 CrPC, if at the

end of the examination of all the witnesses, some material is

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found to connect the person sought to be arraigned as an

accused in the alleged crime. As the factual matrix would

exposit, the informant filed another application under

Section 319 CrPC after the examination of the prosecution

witnesses Nos. 19 to 23 and the application was allowed.

The newly arraigned accused preferred Special Criminal

Application No. 1731 of 2013 before the High Court

challenging the said order, and the High Court had stayed

the same.

4. As the factual score would undrape on 31.07.2015

when the sessions trial was fixed before the learned 3 rd

Additional Sessions Judge, Kheda at Nadiad, as alleged, the

second respondent was standing in the parking area meant

for the four wheelers and at that time he could overhear

certain conversation between the informant and his son that

the trial would be surely taken up for hearing from the next

date onwards and all the accused persons would definitely

be convicted. As further alleged, the Presiding Officer said

something regarding the trial which the accused correlated

with the conversation he had overheard between the

informant and his son. Under such circumstances, he filed

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Criminal Miscellaneous Application No. 545 of 2015 under

Section 408 CrPC before the Principal Sessions Judge,

Kheda for transfer of the sessions case to any other court in

the same Sessions Division. The learned Principal Sessions

Judges called for the remarks of the concerned Presiding

Officer and, after taking into consideration the remarks and

adverting to the position of law, rejected the application. The

learned Principal Sessions Judge while rejecting the

application had observed that once the trial commenced, he

had no jurisdiction to transfer the case in exercise of the

power under Section 408 CrPC. As has been stated earlier,

the High Court had unsettled the said view and we have no

hesitation to say correctly so.

5. The High Court, as has been indicated earlier, has

referred to the conversation between the parties and the

impression of the accused. After narrating the same, the

High Court has observed that the accused-petitioner

definitely is in dilemma and whether to term his

apprehension as reasonable or not, the result of the reaction

of a hypersensitive mind is the question. Thereafter, the

High Court has proceeded to observe that the learned trial

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Judge had not examined any witness; that all witnesses

examined so far were examined by his predecessor in office;

that the Presiding Officer himself had also not indicated his

disinclination to hear the matter, and that apart, he had

offered quite a stiff resistance to the plea of transfer as the

same is revealed from his remarks forwarded to the

Principal Sessions Judge. After so stating, the learned

single Judge has held thus:-

“…I am sure that the present Additional Sessions

Judge would have acted in a true sense of a
Judicial Officer. But nevertheless, to ensure that
justice is not only done, but also seems to be
done and in the peculiar facts of the case, I feel
that it will be appropriate if the Principal
Sessions Judge transfers the case to any other
Additional Sessions Judge in the same Sessions
Division. I make it abundantly clear that the
transfer shall not be construed as casting any
aspersions on the learned Additional Sessions
Judge.”

6. On a careful scrutiny of the order passed by the High

Court, it is not clear whether the High Court has been

convinced that the accused has any real apprehension or

bias against the trial judge. However, the observations of

the learned single Judge, as it seems to us, is

fundamentally based on apprehension and to justify the

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same, he has referred to the remarks offered by the learned

Additional Sessions Judge to the Sessions Judge when

explanation was called for. First, we shall refer to the issue

of apprehension. The apprehension is based on some kind

of conversation between the informant and another that the

accused persons shall be convicted. There is also an

assertion that the trial judge is a convicting Judge and that

is why, the High Court has observed that he is in dilemma.

7. So far as apprehension is concerned, it has to be one

which would establish that justice will not be done. In this

context, we may profitably refer to a passage from a

three-Judge Bench decision in Gurcharan Dass Chadha

v. State of Rajasthan1, wherein it has been held:-

“… 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 apprehension that justice
will not be done in a given case does not suffice.
1
AIR 1966 SC 1418

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The Court has further to see whether the

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.”

8. This Court in Abdul Nazar Madani v. State of T.N.2

has ruled that:-

“…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, the witnesses and the larger interest of
the society.”

2
(2000) 6 SCC 204

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9. In Captain Amarinder Singh v. Parkash Singh

Badal and others3, while dealing with an application for

transfer petition preferred under Section 406 CrPC, a

three-Judge Bench has opined that for 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 has

also been observed therein that mere an allegation that

there is an apprehension that justice will not be done in a

given case alone does not suffice. It is also required on the

part of the Court to see whether the apprehension alleged is

reasonable or not, for the apprehension must not only be

entertained but must appear to the Court to be a reasonable

apprehension. In the said context, the Court has held

thus:-

“19. 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 CrPC.

3
(2009) 6 SCC 260

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20. 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 in the system. The apprehension
must appear to the court to be a reasonable one.”

10. In Lalu Prasad alias Lalu Prasad Yadav v. State of

Jharkhand4, the Court, repelling the submission that

because some of the distantly related members were in the

midst of the Chief Minister, opined that from the said fact it

cannot be presumed that the Presiding Judge would

conclude against the appellant. From the said decision, we

think it appropriate to reproduce the following passage:-

“Independence of judiciary is the basic feature of

the Constitution. It demands that a Judge who
presides over the trial, the Public Prosecutor who
presents the case on behalf of the State and the
lawyer vis-à-vis amicus curiae who represents the
accused must work together in harmony in the
public interest of justice uninfluenced by the
personality of the accused or those managing the
affairs of the State. They must ensure that their
working does not lead to creation of conflict
between justice and jurisprudence. A person
whether he is a judicial officer or a Public
Prosecutor or a lawyer defending the accused
should always uphold the dignity of their high
office with a full sense of responsibility and see
that its value in no circumstance gets devalued.
4
(2013) 8 SCC 593

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The public interest demands that the trial should

be conducted in a fair manner and the
administration of justice would be fair and
independent.”

11. The aforesaid passage, as we perceive, clearly lays

emphasis on sustenance of majesty of law by all concerned.

Seeking transfer at the drop of a hat is inconceivable. An

order of transfer is not to be passed as a matter of routine

or merely because an interested party has expressed some

apprehension about proper conduct of the trial. The power

has to be exercised cautiously and in exceptional situations,

where it becomes necessary to do so to provide credibility to

the trial. There has to be a real apprehension that there

would be miscarriage of justice. [See : Nahar Singh Yadav

and another v. Union of India and others5].

12. In the instant case, we are disposed to think that

apprehension that has been stated is absolutely mercurial

and cannot remotely be stated to be reasonable. The

learned single Judge has taken an exception to the remarks

given by the learned trial judge and also opined about non-

5
(2011) 1 SCC 307

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examination of any witness by him. As far as the first

aspect is concerned, no exception can be taken to it. The

learned Sessions Judge, while hearing the application for

transfer of the case, called for remarks of the learned trial

judge, and in such a situation, he is required to give a reply

and that he has done. He is not expected to accept the

allegations made as regards his conduct and more so while

nothing has been brought on record to substantiate the

same. The High Court could not have deduced that he

should have declined to conduct the trial. This kind of

observation is absolute impermissible in law, for there is no

acceptable reason on the part of the learned trial judge to

show his disinclination. Solely because an accused has filed

an application for transfer, he is not required to express his

disinclination. He is required under law to do his duty. He

has to perform his duty and not to succumb to the pressure

put by the accused by making callous allegations. He is not

expected to show unnecessary sensitivity to such allegations

and recuse himself from the case. If this can be the

foundation to transfer a case, it will bring anarchy in the

adjudicatory process. The unscrupulous litigants will

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indulge themselves in court haunting. If they are allowed

such room, they do not have to face the trial before a court

in which they do not feel comfortable. The High Court has

gravely erred in this regard. So far as the non-examination

of the witnesses is concerned, as the factual score would

uncurtain, the matter had travelled to the High Court in

revision assailing the order passed under Section 319 CrPC.

Be that as it may, the High Court has not adverted to the

issue who was seeking adjournment and what was the role

of the learned trial judge. Grant of adjournment could have

been dealt with by the High Court in a different manner. It

has to be borne in mind that a judge who discharges his

duty is bound to commit errors. The same have to be

rectified. The accused has never moved the superior court

seeking its intervention for speedy trial. The High Court has

innovated a new kind of approach to transfer the case. The

High Court should have kept in view the principles stated in

K.P. Tiwari v. State of M.P.6 which are to the following

effect:-

6
1994 Supp. (1) SCC 540

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“… It has also to be remembered that the lower

judicial officers mostly work under a charged
atmosphere and are constantly under a
psychological pressure with all the contestants
and their lawyers almost breathing down their
necks—more correctly up to their nostrils. They
do not have the benefit of a detached atmosphere
of the higher courts to think coolly and decide
patiently. Every error, however gross it may look,
should not, therefore, be attributed to improper
motive.”

13. Thus analysed, we are unable to sustain the order of

transfer passed by the High Court. Consequently, the

appeals are allowed in part. The finding recorded as regards

the jurisdiction of the learned Sessions Judge is sustained,

and as far as the direction to the Principal Sessions Judge

to transfer the case from the 3rd Additional Sessions Judge

to some other court being vulnerable and wholly

unsustainable is set aside. The learned trial judge shall

proceed with the trial and dispose of the same within six

months.

.................................J.
[Dipak Misra]

.................................J.
[Prafulla C. Pant]

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NEW DELHI
JANUARY 8, 2016

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