Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Transfer Petition(s)(Criminal) No(s).125/2019
SUNIL SAINI & ORS. Petitioner(s)
VERSUS
THE STATE OF HARYANA & ORS. Respondent(s)
J U D G M E N T
(1) The relief sought for in the transfer petition is as
follows:
“(a) Transfer the case bearing S.C. No.285 of
2016 arising out of FIR No.116 dated 22.02.2016 u/S
148, 149, 186, 302, 307, 435, 436, 449, 395, 323,
326 IPC and Section 25 of the Arms Act, 1959,
Police Station-Jhajjar, titled “State of Haryana
versus Sandeep @ Kala & Anr.”, pending before the
Court of Additional Sessions Judge, Jhajjar to the
Competent Court in New Delhi.”
(2) The case of the petitioners in a nutshell is that an
agitation was carried out by members of the Jat community in
the State of Haryana in 2016. They sought reservation in
Government jobs and educational institutions. During this
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2023.02.23
17:43:42 IST
Reason:
agitation, the members of Jat community vandalized and
committed acts of arson which allegedly caused huge
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irreparable damage to the petitioners by setting their
houses, godowns and their every belonging on fire.
(3) An allegation is made against an advocate who is
alleged to be very influential and who had remained President
of the Bar. It is alleged that because of this connivance,
2-3 material witnesses have been forced to turn hostile as
well as material documentary evidence has not been placed on
record.
(4) It is their further case that an application was
filed under Section 319 of the Code of Criminal Procedure,
1973 to summon the advocate and his son but their
application was not countersigned by the Public Prosecutor.
The petitioners, therefore, knocked at the door of this Court
by filing this petition to get their case transferred to
another state so that interest of justice is sub-served.
(5) Counter Affidavit as well as an application to file
additional documents have been filed by respondent Nos. 2 &
3. In the application for additional documents, it is sought
to be established that, in fact, the first petitioner before
this Court was examined as PW-2 and he has deposed in his
deposition that he could not identify who the accused are.
PW-15 purported to identify one of the accused. At the
instance of PW-15, an application was filed under Section 319
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of the Cr.P.C. to summon certain persons (advocate in
question), which has been rejected.
(6) Learned counsel for the petitioners, in fact, would
submit that the order rejecting the application under Section
319 has been upheld by the High Court. The learned counsel
for the petitioners would point out that it is a gross case
where there is a complete break down of the law and order
resulting in gross damage having been caused. It is also
pointed out that two persons lost their lives.
(7) It is their case that there is no chance for the
petitioners getting justice in the Courts in the State of
Haryana, having regard to the pervasive influence of the
community in question. What is more, even the prosecuting
team is not acting in a fair and fearless manner.
(8) As of today, it is brought to our notice that 42
witnesses have been examined. Learned counsel for the
petitioners would point out that at this stage, atleast this
Court may consider directing that an independent and upright
Special Prosecutor be appointed so that the needful is done
and there is no sabotage of the proceedings. He would submit
that a case may exist for recalling witnesses who have
already been examined.
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(9) Learned counsel appearing on behalf of the first
respondent-State, on the other hand, would point out that the
Public Prosecutor has been appointed on 13.05.2022. He is
the person who has been a Public Prosecutor since 29.03.2003
and conducted nearly 500 cases under Section 302 IPC, two
cases arising out of the agitation and also two other cases
of honour killings. What is more important, it is pointed
out that there are no allegations levelled against the Public
Prosecutor who has been appointed as aforesaid.
(10) Learned counsel for the petitioners have raised
another complaint as well. It is pointed out that on a
regular basis, the petitioners who are witnesses have been
under threats by the other-side. He would submit that
despite a request being made, protection has not been
accorded.
(11) Learned counsel for the first respondent-State, on
the other hand, points out that there is a Witness Protection
Scheme, 2018. A witness who is intimidated will always have
a right to write to the presiding Judge or Public Prosecutor
or the Superintendent of Police of concerned District. Only
one request has been received on the last date of hearing, it
is submitted.
(12) As far as transferring the case out of the State is
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concerned, we would think that due to the passage of time
and the fact that nearly 42 witnesses have already been
examined, we do not think that, as things stand, the case is
to be transferred.
(13) We must pause here for a moment and however make
these observations:
The State exists on the basis of implied consent of
the Governed. The principal reason for people to come
together under the organization of the state is the
fundamental principle that the State will be in a position to
always protect the lives and properties of the citizens.
This is the fundamental unalterable premise for the creation,
existence and preservation of any civilized State. It is all
the more so, when the State is functioning under a written
constitution which guarantees fundamental rights such as
ours. It is accordingly that rule of law is rightfully
treated as part of the basic structure of the Constitution.
It is the bounden duty of any State to ensure that the lives
of its citizens and other persons are at all times protected.
The same goes for their properties. This is the elementary
function of the State. We are not at this stage called upon
to deal with the duties of the State with the mantle of a
welfare State falling upon it. Even if this indispensable
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function to constitute a State is not performed, it would be
a lamentable state of affairs.
(14) The principal mechanism for vindicating the rule of
law and upholding the rights of the citizens is the judicial
branch of the State. One of the fundamental methods by which
Rule of law is preserved consists of sanctions of which the
criminal law is the principal branch. The criminal courts
must be allowed to function in a manner by which at the end
of the day the guilty are punished and innocent are
exonerated.
(15) The role of the Public Prosecutor in all of this is
paramount. He is duty bound to always act in a fair manner;
not of course, to secure conviction by hook or crook but at
the same time, it is his duty to fearlessly adduce evidence
so that those who are guilty do not get away scot free.
Unless this is done, it is very likely that the common man
will cease to have faith in the very functioning of the State
itself. It is therefore, integral to the upholding of the
integrity of the State itself that the access to justice
which is also comprehended in the principle that an offence
is committed against the State and the State therefore
prosecutes the offender is always borne in mind.
(16) Every attempt which succeeds at the hands of anyone
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whereby the efficacy of criminal law is diluted, will remove
the very edifice of the rule of law fatally.
(17) It is, therefore, of the utmost importance that in
the case in hand, the Special Public Prosecutor who has been
appointed will hopefully uphold the highest principles and
play the difficult role so that while the innocent are not
convicted, the guilty do not escape due punishment.
(18) In the facts of this case, noticing that the Special
Public Prosecutor has been appointed only recently and not
being unmindful also of his credentials which have been
brought to our notice, at this stage we are not persuaded to
direct that another person be appointed in his place.
However, this is not to be the end of the destiny of this
case. Accordingly, we dispose of the petition as follows:
(i) It will be open to the petitioners to approach
the Director of Prosecution in case they believe that even
the Special Public Prosecutor appointed is not discharging
his duties in a fair and impartial manner.
(ii) It is thereupon for the Director(Prosecution)
to look into the matter and take appropriate steps. As far as
protection to the witness is concerned, it will be open to
the petitioners to move the presiding Judge or Special Public
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Prosecutor or the Superintendent of Police of the concerned
District seeking protection in which case needful shall be
done in accordance with law.
(iii) Needless to say that any observation which we
have made in this judgment shall not stand in the way of the
Court taking a decision on the basis of the evidence and on
the basis of law applicable.
The transfer petition is disposed of accordingly.
...........................J
(K.M. JOSEPH)
...........................J
(B.V. NAGARATHNA)
New Delhi,
January 30, 2023
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ITEM NO.1 COURT NO.3 SECTION XVI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Petition(s)(Criminal) No(s). 125/2019
SUNIL SAINI & ORS. Petitioner(s)
VERSUS
THE STATE OF HARYANA & ORS. Respondent(s)
(IA No. 21216/2019 - EX-PARTE STAY
IA No. 21217/2019 - EXEMPTION FROM FILING O.T.)
Date : 30-01-2023 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE K.M. JOSEPH
HON'BLE MRS. JUSTICE B.V. NAGARATHNA
For Petitioner(s) Mr. Abhimanyu Tewari, AOR
Mr. Neiketou Rio, Adv.
Ms. Eliza Bar, Adv.
For Respondent(s) Dr. Joseph Aristotle, Adv
Mr. Aditya Singh, AOR
Mr. Shubham Singh, Adv.
Mr. Rajiv Dalal, Adv.
Mr. Pankaj Yadav, Adv.
Mr. Nikhil Goel, AAG, Haryana
Mr. Aniruddha Deshmukh, Adv.
Mr. Adithya K. Roy, Adv.
Mr. Naveen Goel, Adv.
Ms. Monika Gusain, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The Transfer Petition is disposed of in terms of signed
reportable judgment.
Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (RENU KAPOOR)
COURT MASTER (SH) ASSISTANT REGISTRAR
(signed reportable judgment is placed on the file)