Full Judgment Text
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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.