REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGIN AL JURISDICTION

TRANSFER PETITION (CRLIMINAL) NO. 29 OF 2008

Vikas Kumar Roorkewal ... Petitioner

Versus

State of Uttarakhand and others ...Respondents

J U D G M E N T

J.M. Panchal, J.

By filing this petition under Section 406 of the Code

of Criminal Procedure 1973 (“The Code”, for short), the

petitioner, who is son of late Radhey Shyam and who is

also the first informant in the case relating to the murder

of his father, has prayed that the case titled as State Vs.

Aakash Tyagi and others being S.T. No. 6 of 2007

pending in the Court of learned Additional District Judge,

Fast Track Court, Haridwar (Uttrakhand) arising out of

crime No. 182 of 2006 and FIR No.169 of 2006 be

transferred to the Court of competent jurisdiction at

Delhi.

2.The background facts as projected by the petitioner

in the instant petition are as follows:-

Late Radhey Shyam was initially appointed

Executive Engineer in Irrigation Department of Uttar

Pradesh. In January, 2004 he was posted to look after a

project known as Upper Ganga Link Canal Project, under

which two rivers, namely, Ganga and Yamuna were to be

linked. It is claimed that because of his excellent track

record, efficiency and honesty, he was promoted to the

post of Superintending Engineer in November, 2005 and

was placed in charge of the said project, the total cost of

which was Rs.240 crores. The project was intended to

solve the long standing irrigation and drinking water

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problems of western U.P. and also to provide a solution to

control floods. He was brutally murdered in cold blood in

broad day light in the afternoon of June 18, 2006 by

three persons at his residence located in his Camp 0ffice

at Roorkee (Uttarakhand). The petitioner, who claims to

be an eye-witness, has stated that he had chased the

accused but they had escaped and, therefore, he had

called the police and reported the matter to the police

immediately. The police on arrival at the place of the

incident had taken the deceased to the Government

Hospital where he was declared brought dead. On the

basis of the information given by the petitioner, the police

had registered an FIR No. 169/2006 on 18.6.2006. On

the same day post mortem on the dead body of the

deceased was conducted by the medical officers, on the

intervention of the District Magistrate (Uttarakhand).

The murder of Radhey Shyam, Superintending Engineer

of U.P. had sent shock waves throughout Uttarakhand

and U.P and in the engineering and bureaucratic

community and the incident was widely reported in the

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newspapers.

3. Because of the high profile of the accused involved

in the murder of the deceased engineer, the Uttarakhand

police was found to be incapable/reluctant to investigate

the crime. Therefore, the State of Uttar Pradesh had

directed the Special Task Force along with Special

Operation Group to investigate the murder and to arrest

the accused. It may be mentioned that the Special Task

Force along with Special Operation Group appointed to

investigate the matter and to arrest the accused had

conducted large number of raids. All the arrests were

made by Special Task Force, Uttar Pradesh except one

which was effected by the Uttarakhand police on the

information of Special Task Force, Uttar Pradesh.

4.It is mentioned by the petitioner that large scale

corruption is prevailing in the Irrigation Department and

earlier two Junior Engineers were also murdered

brutally. It was reported that disputes concerning the

contracts which were entrusted and to be entrusted

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under the project had emerged as the main reason for the

murders of these engineers including that of late Radhey

Shyam. The record shows that after investigation,

charge-sheet was filed and charges have been framed

against accused persons, who are respondent Nos. 2 to 9

in the Transfer Petition, under Section 302 read with

Section 120B of the Indian Penal Code and Section

3(2)(V) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. The trial has

commenced in the Court of learned Additional District

Judge, Fast Track Court, Haridwar (Uttarakhand) and by

this time, one witness is already examined.

5. Grievance of the petitioner is that continuously

threats are being administered to his family including

him and other witnesses that they would meet the same

fate as that of the deceased, if they dare to depose before

the Court. The petitioner has mentioned that the first

eye witness examined in the court, who was the driver of

the deceased, has turned hostile because of the threats

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given to him and the learned Judge presiding over the

trial could not do anything except being a passive

spectator. The petitioner claims that he along with his

wife was chased by the gang when they were enroute to

Haridwar to appear before the court on May 25, 2007,

and due to fear, they have not been able to appear before

the court on several dates.

6. The petitioner has mentioned that the other

witnesses who are yet to be examined are regularly

receiving/getting summons calling upon them to remain

present before the court to tender testimony, but they are

unable to appear and depose before the Trial Court at

Haridwar due to regular threats being administered to

them. It is also mentioned by the petitioner that his

mother on account of fear and threats has already left

Roorkee and is staying with brother of the petitioner in

Delhi and is thus unable to depose before the court at

Haridwar. What is claimed by the petitioner is that due

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to the threats received by him, he and his wife who are

material witnesses have also started residing at Delhi.

7.The petitioner has mentioned that he has written

several letters/made applications and prayed the

competent authorities to take immediate action and to

provide security to him and other witnesses, but no

action has been taken.

8. What is mentioned in the petition is that in the

Dainik Jagran newspaper published on June 8, 2007 it

was reported that Sunil Rathi, responsible for murdering

the deceased is running his gang in Uttar Pradesh and

Uttarakhand from Dehradun Jail and has created wide

spread terror which would not permit fair trial

commenced in case of the murder of the deceased. The

petitioner has mentioned that the investigation by the

police is not impartial and has been influenced by

powerful people involved in the murder of the deceased.

It is also highlighted that the trial court also did not

make a serious effort to see that justice is done. Thus,

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by filing the instant petition, the petitioner has prayed to

transfer the case pending in the court of learned District

Judge, Fast Track Court, Haridwar to competent court of

jurisdiction at Delhi.

9.The petition was placed for preliminary hearing

before the Court on May 1, 2008 and after hearing the

learned counsel for the petitioner, this Court had ordered

notices to be issued to the respondents. On service of

notice, the State of Uttarakhand has filed counter

affidavit controverting the averments made in the

petition. It is mentioned in the reply that the accused

were arrested on different dates and proper investigation

was made in the case. And mobile phone used in the

incident, one pistol of 315 bore from Akash Tyagi,

cartridges, motorcycle having blue colour etc., were

ceased. In the reply it is mentioned that on interrogation

of Akash Tyagi and his co-accused other accused namely

Vineet Sharma @ Chinu Pandit was arrested and that the

accused are being tried for alleged commission of serious

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offences. According to the reply affidavit Uttarakhand

police was capable to investigate the case and was not

reluctant to investigate but in view of allegations levelled

against local police investigating the case, the

investigation was handed over to special agency. By

filing reply, it is claimed by State of Uttarakhand that the

petition has no substance and the same should be

dismissed.

10.The petitioner has filed rejoinder to the affidavit in

reply filed on behalf of the State Government.

11.The respondent No. 2, i.e., Kumar Gaurav has also

filed affidavit in reply mentioning inter alia that the

Transfer Petition is wholly misconceived and the

allegations leveled therein are baseless, vague and

incorrect and, therefore, the petition should be

dismissed. In the reply the respondent No. 2 has referred

to a decision of this Court in Abdul Nazar Madani Vs.

State of Tamil Nadu AIR 2000 SC 2293, wherein it is held

that not only the convenience of the complainant alone

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but convenience of the accused should also be taken into

consideration before ordering transfer of criminal case

from one State to another. The reply proceeds to mention

that the investigation is not yet complete and, therefore,

if the trial is transferred from Haridwar to any other

State, the same shall have adverse effect on the trial and

that there is every possibility that injustice and prejudice

would be caused to the accused. What is stated is that

the witnesses proposed to be examined on behalf of

accused would not be willing to travel to any other place

for tendering defence evidence and, therefore, transfer of

case would result into injustice to the accused.

According to the reply, the present case is a classic

example of trial by media and the petitioner who is

influential and had widely publicized the incident has

succeeded in falsely implicating the respondent No. 2 in

the case. The reply states that no ground is made out by

the petitioner to transfer the case from Court of Haridwar

to competent Court of jurisdiction at Delhi and therefore

the petition should be dismissed.

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12.This Court has heard the learned counsel for the

parties at length and in great detail. This Court has also

considered the documents forming part of the instant

petition.

13.From the record of the case it is evident that several

letters have been written and/or applications have been

made by the petitioner making grievances about the

threats administered to him and his family by the

accomplices of the accused. However, it is an admitted

position that no action, worth the name, is taken either

by the SSP, Haridwar or by Government of Uttarakhand

either to afford protection to the petitioner and his family

or to thwart such threats made by the accused and/or

their accomplices. It is relevant to notice that it was

claimed by the prosecution that the driver of the

deceased was an eye-witness and it is the case of the

petitioner that due to threats, he turned hostile. The fact

that the driver had turned hostile is not in dispute. The

fact that in spite of the receipt of several summons

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neither the petitioner nor his wife nor his family members

nor other witnesses have been able to go to Haridwar to

depose before the Court is not denied by the State

Government. Therefore, this Court is inclined to accept

the case of the petitioner that he and other witnesses

have not been able to respond the summons only

because of fear to their lives due to the threats

administered by the accomplices of the accused. There is

no manner of doubt that because of chasing of the

petitioner and his relatives by the accomplices of the

accused, they have not been able to attend the Court and

tender evidence. If this situation continues then the

prosecution would not be able to lead any evidence in

such a brutal murder case and the accused will have to

be acquitted. The record indicates that four accused

have been already enlarged on bail but neither the police

nor the State agency has taken any steps for the purpose

of getting their bail order cancelled.

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14.The learned counsel for the petitioner has placed

reliance on a decision of this Court in Himanshu Singh

Sabharwal vs. State of M.P. and others (2008) 4 SCR 783,

where this Court in paragraphs 14 and 15 has observed

as under: -

“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

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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 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.

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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.”

15.Above judgment clearly enunciates the importance

of witness in criminal trial. This is a case of murder of a

Superintending Engineer. There is no manner of doubt

that brutal assault was mounted on him which resulted

into his death. The son of the deceased is seeking

transfer of proceedings on ground of coercion and threat

to the witnesses as well as doubtful sincerity of the

investigating agency and prosecuting agency. In effective

cross-examination by public prosecutor of the driver who

resiled from the statement made during investigation

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speaks volumes about the sincerity/ effectiveness of the

prosecuting agency. The necessity of fair trial hardly

needs emphasis. The State has a definite role to play in

protecting the witnesses, to start with at least in sensitive

cases. The learned Judge has failed to take participatory

role in the trial. He was not expected to act like a mere

tape recorder to record whatever has been stated by the

witnesses. Section 311 of the Code and Section 165 of

the Evidence Act confers vast and wide powers on Court

to elicit all necessary materials by playing an active role

in the evidence collecting process. However, the record

does not indicate that the learned Judge presiding the

trial had exercised powers under Section 165 of the

Evidence Act which is in a way complimentary to his

other powers. It is true that there must be reasonable

apprehension on the part of the party to a case that

justice may not be done and mere allegation that there is

apprehension that justice will not be done cannot be the

basis for transfer. However, there is no manner of doubt

that the reasonable apprehension that there would be

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failure of justice and acquittal of the accused only

because the witnesses are threatened is made out by the

petitioner.

16.This Court, on various occasions, had opportunity

to discuss the importance of fair trial in Criminal Justice

System and various circumstances in which a trial can

be transferred to dispense fair and impartial justice. It

would be advantageous to notice a few decisions of this

Court with regard to the scope of Section 406 of Code of

Criminal Procedure. In Gurcharan Dass Chadha vs.

State of Rajasthan AIR 1966 SC 1418, this Court held as

under: -

“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

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given case does not suffice. The Court has

further to see whether apprehension is

reasonable or not. 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.”

In Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4

SCC 167, this Court has observed as under: -

“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.”

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In K. Anbazhagan vs. Superintendent of Police (2004) 3

SCC 767, this Court held as under: -

“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.”

In Abdul Nazar Madani vs. State of Tamil Nadu (2000) 6

SCC 204, this Court observed as under: -

“The purpose of 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

Cr.P.C. 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

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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 witness 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.”

17.From the averments made in the petition it is

evident that the accused belong to powerful gang

operating in U.P. from which State of Uttarakhand is

carved out. The petitioner has been able to show the

circumstances from which it can be reasonably inferred

that it has become difficult for the witnesses to safely

depose truth because of fear of being haunted by those

against whom they have to depose. The reluctance of the

witnesses to go to the court at Haridwar in spite of

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receipt of repeated summons is bound to hamper the

course of justice. If such a situation is permitted to

continue, it will pave way for anarchy, oppression, etc.,

resulting in breakdown of criminal justice system. In

order to see that the incapacitation of the eye-witnesses

is removed and justice triumphs, it has become

necessary to grant the relief claimed in the instant

petition. On the facts and in the circumstances of the

case this Court is of the opinion that interest of justice

would be served if transfer of the case from Haridwar to

Delhi is ordered.

18.For the foregoing reasons the petition succeeds.

The case titled as State Vs. Akash Tyagi & Others bearing

ST No. 6 of 2007 pending in the Court of learned First

Fast Track Court / A.D.J., Haridwar, Uttarakhand

arising out of Crime No. 182/2006 and FIR No.169 of

2006 is hereby transferred to competent Court of

jurisdiction at Delhi. The investigating agency, the

prosecution agency, the State of Delhi as well as State of

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Uttarakhand and the learned Judge to whom the trial of

the case may be made over, are directed to take

appropriate steps for protecting the witnesses and to

ensure that the trial concludes as early as possible and

without any avoidable delay. The Transfer Petition

accordingly stands disposed of.

.....................................J.

[J.M. Panchal]

.....................................J.

[H.L. Gokhale]

New Delhi;

January 11, 2011.

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