REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No. 12981 OF 2008

NAHAR SINGH YADAV & ANR. — PETITIONERS

VERSUS

UNION OF INDIA & ORS. — RESPONDENTS

O R D E R

D.K. JAIN, J.:

1.The short question raised by the Central Bureau of Investigation (for

short “the CBI”), Anti Corruption Branch, Ghaziabad in their affidavit

dated 15

th

July 2010, for our consideration is whether or not the trial

arising out of the chargesheet filed by the CBI in Case RC-

1(A)/2008/CBI/ACB/Ghaziabad and the local police, Ghaziabad in Case

Crime No.152/2008 PS Kavi Nagar, Ghaziabad deserves to be transferred

from the Court of Special Judge, CBI at Ghaziabad to some other court of

competent jurisdiction, preferably at Delhi under the jurisdiction of the

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High Court of Delhi, with a direction to the Trial Court to conduct the

trial of the case on a day to day basis, and to complete it within a period

of two years.

2.Since the case, commonly known as “the Ghaziabad P.F. Scam”, giving

rise to the afore-stated prayer, involves violation of the standards of

judicial behaviour, which is expected to be of the highest order, be it on

or off the Bench, we feel concerned by the alleged events and have given

our anxious consideration to the issue raised. In order to appreciate the

controversy, a few material facts may be noticed. These are:

Pursuant to and in furtherance of the findings of the Vigilance

Department of the High Court of Judicature at Allahabad and subsequent

authorisation given by the High Court, Case Crime No.152/2008 under

Sections 409, 420, 467, 468, 471, 477-A, 120-B of the Indian Penal Code,

1860 (for short “the IPC”) and Sections 8, 9, 13(2) read with Sections

13(1)(d) and 14 of the Prevention of Corruption Act, 1988 (for short “the

Act”) was registered at PS Kavi Nagar, Ghaziabad on the written complaint

of Smt. Rama Jain, Special Judge and Vigilance Officer, District Court,

Ghaziabad on 15

th

February 2008 against one late Ashutosh Asthana, the

then Central Nazir, District Court, Ghaziabad and 82 other accused persons

which included 13 Class-III employees, 30 Class-IV employees of District

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Court, Ghaziabad and 39 outsiders. It was alleged that late Ashutosh

Asthana in collusion with other accused named in the FIR fraudulently

withdrew huge sums of money in the name of GPF of Class-IV employees

of District Court, Ghaziabad.

Subsequently, the present special leave petition was filed with a

request to transfer the investigation of Case Crime No.152 of 2008, PS Kavi

Nagar, Ghaziabad to the CBI. During pendency of the proceedings,

Government of Uttar Pradesh issued a Notification dated 10

th

September

2008, under Section 6 of the Delhi Special Police Establishment Act, 1946

(for short “the DSPE Act”) for the transfer of above mentioned case to the

CBI, which was also placed before this Court for consideration. Vide order

dated 23

rd

September 2008, this Court transferred the investigation in the

said case to CBI, inter alia, observing that “It is made clear that though we

have directed the matters to be listed after three months, the CBI, shall be

free to file the final report or chargesheet, as the case may be at an earlier

point of time and to proceed thereafter in accordance with law. The court

before which the final report or chargesheet is filed shall deal with the report

or chargesheet, as the case may be, as required in law.” In view of the

aforesaid order of this Court, the instant case was registered by the Anti

Corruption Branch, CBI, Ghaziabad as Case RC-

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1(A)/2008/CBI/ACB/Ghaziabad against late Ashutosh Asthana and 82 other

accused persons on 1

st

October 2008.

3.The CBI filed periodical status reports in this Court with regard to the

progress made in the investigations from time to time. Ultimately, the

final report was filed by the CBI on 30

th

July 2010. According to the

final report, the investigations had revealed that during the period 2001-

2008, late Ashutosh Asthana while working as Bill Clerk and Central

Nazir, District Court, Ghaziabad, by abusing his official position as

public servant entered into a criminal conspiracy with 6 District

Judges/Incharge District Judge and 71 others with the intent to cheat the

District Courts, Ghaziabad/Government of U.P., fraudulently and

dishonestly withdrew over `6 Crores from the District Treasury as GPF

withdrawals, creating fake/forged documents for withdrawing money in

the name of GPF of Class-IV employees using them as genuine, thereby

causing a loss of over `6 Crores to the Government Exchequer and

corresponding gains to themselves. According to the report, a

chargesheet under Section 120-B read with Sections 420, 467, 468 and

471 of the IPC and Section 13(2) read with Section 13(1)(d) of the Act

against accused persons, as named in the chargesheet, has been filed in

the Court of Special Judge, CBI, Ghaziabad on 3

rd

July 2010.

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4.In the affidavit under consideration, filed by the CBI, it is stated that

there is an immediate need to transfer the trial of the case to any other

place outside the State of U.P., preferably Delhi, for the following

reasons:

(i) Chargesheet has been filed against 6 former District

Judges of Ghaziabad, 3 of whom were later elevated as Judges

of the Allahabad High Court and 48 Class-III and Class-IV

employees of District Court, Ghaziabad. All these persons and

their close associates have been working in the District Court,

Ghaziabad for many years and have close contacts with various

Judges and Magistrates, who remained posted in Ghaziabad and

other Districts of U.P.;

(ii) The Special Judge, CBI, in whose court, chargesheet has

been filed, had also worked with/under some of the

chargesheeted judicial officers in the past;

(iii) Smt. Rama Jain, former Special Judge, CBI, Ghaziabad

is the complainant in the case and is currently serving as

Additional District Judge, District Farrukhabad, U.P.;

(iv)13 Judicial Officers and more than 25 employees of

District Court, Ghaziabad have been cited as prosecution

witnesses in the case, whose testimony would be crucial to

establish the criminal cases against the chargesheeted accused

persons.

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(v)The court of Special Judge, CBI, Ghaziabad is already

over-burdened with the trial of about 175 cases including the

sensitive Nithari killings cases, which are being tried on a day

to day basis on the directions of Allahabad High Court.

5.Subsequently, another affidavit was filed by the CBI, pointing out certain

subsequent developments, warranting transfer of the trial from

Ghaziabad.

6.Vide order dated 4

th

August 2010, notice was issued to all the accused

named in the chargesheet to show cause as to why the trial should not be

transferred from the Court of Special Judge, CBI at Ghaziabad to some

other competent court, preferably under the jurisdiction of the Delhi High

Court. In response, affidavits have been filed on behalf of accused

Nos.1,4,5,6,8,15,19,20,55 and some other accused. All the named

accused have objected to the transfer of the trial from Ghaziabad to any

other place on diverse grounds.

7.We have heard Mr. G.E. Vahanvati, learned Attorney General appearing

for the CBI and learned counsel appearing on behalf of the objectors –

accused at some length.

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8.Mr. G.E. Vahanvati, learned Attorney General, submitted that it is a

settled principle that justice should not just be done, but should also be

seen as being done, and in view of the fact that some of the named

accused happen to be ex-judges/administrative judges, there would be

reasonable apprehension in the mind of the public at large that the trial

judge, being their former colleague, may be biased in favour of the

accused and, therefore, the peculiar circumstances of the case warrant

that in the interests of justice the trial be shifted to a neutral venue.

Learned counsel further submitted that the paramount consideration

which should weigh with the Court while considering an application for

transfer is that public’s faith in the judiciary should be maintained, and

given the gravity of the allegations, in the present case, it would be

expedient to transfer the trial to a Special Judge in Delhi.

9.Mr. Prashant Bhushan, learned counsel appearing on behalf of the

petitioners (in SLP (C) No. 12981 of 2008), contended that mere

inconvenience of the accused cannot be the ground for rejecting the

application for transfer, especially in a case like the present one, where

there is a serious apprehension that the trial may not be free and fair

because of the past association between the accused, witnesses and the

trial judge.

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10.Per contra, learned counsel appearing on behalf of some of the accused

contended that Section 406(2) of the Code of Criminal Procedure, 1973

(for short “the Cr.P.C.”) provides that an application for transfer can be

moved only by an interested party, and therefore, the CBI which is the

investigating agency cannot be said to be an interested party within the

meaning of the said provision and entitled to move such an application

for transfer of the trial. Commending us to the decision of this Court in

A.R. Antulay Vs. R.S. Nayak & Anr.

1

, learned counsel contended that the

power to enlarge the jurisdiction of a Special Judge under Section 4 of

the Act is legislative in nature, and therefore, an application under

Section 406 of the Cr.P.C. is misconceived. It was next contended that

none of the named accused are holding a judicial office, and therefore,

there is no reason to believe that they will influence the witnesses,

especially when 13 witnesses are themselves judicial officers. It was

argued that if the sole ground for transfer is the fact that the witnesses

might be influenced because of the past status of some of the accused, the

location of the trial has no bearing in that regard. It was stressed that

transfer of trial would cause great hardship to the accused persons, as

they would have to re-locate themselves to Delhi, far away from

1

(1988) 2 SCC 602

8

Lucknow or Allahabad, where they are residing after retirement and

engage new counsel for their defence.

11.Mr. Vishwajit Singh, learned counsel, appearing for 34 Class III and IV

employees who have been named as accused, contended that the transfer

of trial would cause immense hardship to the accused, who would not

only have to travel long distances but will also have to engage expensive

lawyers in Delhi. Learned counsel also contended that the CBI has not

produced any evidence, much less credible material in support of its

apprehension that there would be a miscarriage of justice if the trial is

held at Ghaziabad.

12.Before adverting to the main issue, viz. whether it would be desirable to

transfer the trial from Ghaziabad, we shall deal with the preliminary

objection raised on behalf of some of the accused about the locus standi

of the CBI in preferring the application for transfer of trial. In order to

appreciate the contention of the objectors-accused persons, in relation to

the capacity of the CBI to move an application for transfer of the instant

case, it would be expedient to refer to Section 6 of the DSPE Act, which

reads as:

“6. Consent of State Government to exercise of powers and

jurisdiction. Nothing contained in Section 5 shall be deemed to

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enable any member of the Delhi Special Police Establishment

to exercise powers and jurisdiction in any area in a State, not

being a Union Territory or Railway area, without the consent of

the Government of that State.”

13.It is manifest that by operation of Section 6 of the DSPE Act, once a

State Government issues notification transferring the investigation to the

CBI, for all intents and purposes, the CBI is entitled to exercise the same

powers as the State police, in relation to the investigation transferred to it.

As a necessary corollary, in light of the current structure and status of the

CBI, it is manifest that the CBI steps into and assumes the role of the

prosecuting agency for that particular case.

14.Section 406(2) of the Cr.P.C. provides that the Supreme Court may

exercise power under sub-section (1) thereof only on an application in

that behalf by either the Attorney General for India or the Advocate

General of a State or a party interested.

15.A criminal trial is a judicial examination of evidence with the object of

punishing the offenders on a proper proof of relevant facts, the core

question being the guilt or innocence of the accused. Given the pivotal

role accorded to the prosecuting agency in a criminal trial, we are unable

to hold that the CBI is not an interested party for the purposes of Section

406(2) of the Cr.P.C.

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16.We are of the opinion that once a notification has been issued by a State

Government under Section 6 of the DSPE Act, the CBI assumes the role

of an investigating agency and as afore-stated the CBI is also invested

with the role of the prosecuting agency in relation to that particular case,

and therefore, it is entitled to move an application under Section 406(2)

of the Cr.P.C. Accordingly, the preliminary objection is rejected.

17.Reverting to the main issue, a true and fair trial is sine qua non of Article

21 of the Constitution, which declares that no person shall be deprived of

his “life” or “personal liberty” except according to the procedure

established by law. It needs no emphasis that a criminal trial, which may

result in depriving a person of not only his personal liberty but also his

life has to be unbiased, and without any prejudice for or against the

accused. An impartial and uninfluenced trial is the fundamental

requirement of a fair trial, the first and the foremost imperative of the

criminal justice delivery system. If a criminal trial is not free and fair,

the criminal justice system would undoubtedly be at stake, eroding the

confidence of a common man in the system, which would not augur well

for the society at large. Therefore, as and when it is shown that the public

confidence in the fairness of a particular trial is likely to be seriously

undermined, for any reason whatsoever, Section 406 of the Cr.P.C.

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empowers this Court to transfer any case or appeal from one High Court

to another High Court or from one criminal court subordinate to one High

Court to another criminal court of equal or superior jurisdiction

subordinate to another High Court, to meet the ends of justice. It is,

however, the trite law that power under Section 406 of the Cr.P.C. has to

be construed strictly and is to be exercised sparingly and with great

circumspection. It needs little emphasis that a prayer for transfer should

be allowed only when there is a well-substantiated apprehension that

justice will not be dispensed impartially, objectively and without any

bias. In the absence of any material demonstrating such apprehension,

this Court will not entertain application for transfer of a trial, as any

transfer of trial from one State to another implicitly reflects upon the

credibility of not only the entire State judiciary but also the prosecuting

agency, which would include the public prosecutors as well.

18.In Zahira Habibulla H. Sheikh Vs. State of Gujarat & Ors.

2

, while

explaining the import of the expression “fair trial”, this Court had

observed that:

“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

2

(2004) 4 SCC 158

12

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.”

19.In Maneka Sanjay Gandhi & Anr. Vs. Rani Jethmalani

3

, speaking for a

bench of three learned Judges of this Court, V.R. Krishna Iyer, J. said:

“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 court may

weigh the circumstances.”

20.In Abdul Nazar Madani Vs. State of T.N. & Anr.

4

, dealing with a similar

application, this Court had echoed the following views:

“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

3

(1979) 4 SCC 167

4

(2000) 6 SCC 204

13

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.”

21.In K. Anbazhagan Vs. Superintendent of Police & Ors.

5

, this Court had

an occasion to deal with the prayer for transfer of a criminal trial from

Tamil Nadu to another State mainly on the ground of apprehension of

political interference in the trial. While finally directing the transfer of

the case to the State of Karnataka, the Court observed thus:

“Free and fair trial is sine qua non of Article 21 of the

Constitution. It is trite law that justice should not only be done

but it should be seen to have been done. If the criminal trial is

not free and fair and not free from bias, judicial fairness and the

criminal justice system would be at stake shaking the

confidence of the public in the system and woe would be the

rule of law. It is important to note that in such a case the

question is not whether the petitioner is actually biased but the

question is whether the circumstances are such that there is a

reasonable apprehension in the mind of the petitioner.”

5

(2004) 3 SCC 767

14

22.Recently, in Captain Amarinder Singh Vs. Parkash Singh Badal &

Ors.

6

, while dealing with two transfer applications preferred under

Section 406 of the Cr.P.C. on the ground that with the change in State

Government, the trial was suffering setback due to the influence of the

new Chief Minister as also the lack of interest by the Public Prosecutor,

P. Sathasivam, J., speaking for a three-judge Bench has observed thus:

“18. For a 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 is one of the principles of

administration of justice that justice should not only be done

but it should be seen to be done. On the other hand, mere

allegations that there is apprehension that justice will not be

done in a given case does not suffice. In other words, the court

has further to see whether the apprehension alleged is

reasonable or not. The apprehension must not only be

entertained but must appear to the court to be a reasonable

apprehension.

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.

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.

6

(2009) 6 SCC 260

15

The apprehension must appear to the court to be a reasonable

one.”

23.In R. Balakrishna Pillai Vs. State of Kerala

7

, while rejecting a prayer for

transfer which was made on the ground that one of the Judges hearing the

appeal had previously appeared as an advocate in a commission

enquiring into an allegation of misconduct against the petitioner in

another matter, this had Court observed as under:

“The charges against him are altogether for a different case not

connected with the rectification work of Edamalayar Project.

Secondly, a Judge while practising as an advocate might have

appeared in a number of cases, but that would not mean that he

would have any personal interest or connection with the said

matters or with persons involved therein and would be biased

towards them. Therefore, it would be difficult to presume or to

draw an inference that the learned Judge, because of assisting

the Commission of Inquiry as an advocate in a different matter,

would have bias or prejudice against the petitioner and would

not render justice in accordance with law. Acceptance of such

contention would seriously undermine the independence and

stern stuff of the Judges.”

24.Thus, although no rigid and inflexible rule or test could be laid down to

decide whether or not power under Section 406 of the Cr.P.C. should be

exercised, it is manifest from a bare reading of sub-sections (2) and (3) of

the said Section and on an analysis of the decisions of this Court that an

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

7

(2000) 7 SCC 129

16

merely because an interested party has expressed some apprehension

about the proper conduct of a trial. This power has to be exercised

cautiously and in exceptional situations, where it becomes necessary to

do so to provide credibility to the trial. Some of the broad factors which

could be kept in mind while considering an application for transfer of the

trial are:-

(i) when it appears that the State machinery or prosecution is

acting hand in glove with the accused, and there is likelihood of

miscarriage of justice due to the lackadaisical attitude of the

prosecution;

(ii) when there is material to show that the accused may

influence the prosecution witnesses or cause physical harm to

the complainant;

(iii) comparative inconvenience and hardships likely to be

caused to the accused, the complainant/the prosecution and the

witnesses, besides the burden to be borne by the State

Exchequer in making payment of travelling and other expenses

of the official and non-official witnesses;

(iv) a communally surcharged atmosphere, indicating some

proof of inability of holding fair and impartial trial because of

the accusations made and the nature of the crime committed by

the accused; and

(v)existence of some material from which it can be inferred

that the some persons are so hostile that they are interfering or

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are likely to interfere either directly or indirectly with the

course of justice.

25.Having considered the rival claims of both the parties on the touchstone

of the afore-stated broad parameters, we are of the view that the

apprehension entertained by the CBI that the trial of the case at

Ghaziabad may not be fair, resulting in miscarriage of justice, is

misplaced and cannot be accepted. From the material on record, we are

unable to draw any inference of a reasonable apprehension of bias nor do

we think that an apprehension based on a bald allegation that since the

trial judge and some of the named accused had been close associates at

some point of time and that some of the witnesses are judicial officers,

the trial at Ghaziabad would be biased and not fair, undermining the

confidence of the public in the system. While it is true that judges are

human beings, not automatons but it is imperative for a judicial officer, in

whatever capacity he may be functioning, that he must 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 is no

exception to this imperative. Therefore, we are not disposed to believe

that either the witnesses or the Special Judge will get influenced in favour

18

of the accused merely because some of them happen to be their former

colleagues. As already stated, acceptance of such allegation, without

something more substantial, seriously undermines the credibility and the

independence of the entire judiciary of a State. Accordingly, we

outrightly reject this ground urged in support of the prayer for transfer of

trial from Ghaziabad.

26.As regards the plea that the Court of Special Judge, CBI, Ghaziabad is

already heavily over-burdened, in our opinion, that is again not a ground

for transfer of trial. If at all the said Court is over burdened, it will be

open to the High Court to request the State Government to create another

Court of a Special Judge at Ghaziabad and we are confident that having

regard to the nature of the case and the serious concern already shown by

the State Government by issuing Notification dated 10

th

September 2008

promptly and expeditiously, the State Government will take appropriate

steps in that behalf so that the guilty are brought to book at the earliest

not only in this case but in other sensitive trials, stated to be pending in

that Court, as well.

27.For the afore-stated reasons, as at present, we do not find any merit in the

request of the CBI for transfer of the trial from Ghaziabad to any other

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place. Accordingly, the prayer is declined. The Trial Court is directed to

proceed with the case expeditiously.

.……………………………..…..…..

(D.K. JAIN, J.)

.……………………………..…..….

(V.S. SIRPURKAR, J.)

.……………………………..…..…..

(G.S. SINGHVI, J.)

NEW DELHI;

NOVEMBER 19, 2010.

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