Salwinder Singh vs State Of Punjab And Others

CRM-M-43013-2021 (O&M) -1-


IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

150-2


CRM-M-43013-2021 (O&M)
Date of decision : 31.08.2026
Salwinder Singh ...Petitioner
Versus

State of Punjab and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:- Mr. H. S. Randhawa, Advocate
for the petitioner.

Ms. Ruchika Sabherwal, Sr. DAG, Punjab.

Mr. Sandeep Gahlawat, Advocate
for respondents No. 2 and 3.

Ms. Shubreet Kaur, Advocate
for respondents No. 4 and 5.

Mr. G. S. Dhillon, Advocate
for respondent No. 6.

MANISHA BATRA, J. (Oral)

1. The petitioner has approached this Court under Section 407 read
with Section 482 of the Code of Criminal Procedure, 1973 seeking transfer of
the trial arising out of FIR No.151 dated 12.10.2014, registered at Police
Station Sarhali, District Tarn Taran, for offences punishable under Sections
302, 148, 149 and 120-B of IPC from the Court at Tarn Taran to any other
District outside District Tarn Taran.
2. Brief facts of the case relevant for the purpose of disposal of this
petition are that the aforementioned FIR was registered on the basis of the
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CRM-M-43013-2021 (O&M) -2-

statement recorded by the petitioner/complainant Salwinder Singh alleging
therein that he was an agriculturist and had one son, namely, Gurjant Singh,
aged about 21 years, besides five daughters. On 12.10.2014, he, his son
Gurjant Singh, his servant Swaran Singh and his brother-in-law's son Satnam
Singh had gone to Grain Market, Sarhali, where their paddy crop had been
brought. As the paddy had not been auctioned, they put a tarpaulin over the
heap and thereafter proceeded towards their farmhouse on motorcycles. His
son Gurjant Singh was driving a motorcycle bearing registration number PB-
46-L-7159, on which Swaran Singh was sitting as pillion, whereas the
petitioner was sitting on the pillion of the motorcycle being driven by Satnam
Singh. They left the Grain Market at about 6:30 p.m., with Gurjant Singh and
Swaran Singh ahead of the petitioner and Satnam Singh. When they were
about 200 yards short of the GT Road at about 7:00 p.m., the petitioner saw
Balbir Singh armed with a rifle; Jarmanjit Singh armed with a kirpan; Stalinjit
Singh armed with a datar; Uday Singh armed with a datar; Gurdev Singh
armed with a datar; Gurcharan Singh armed with a datar; Chamkaur Singh
armed with a kirpan and Sukhraj Singh armed with a datar along with about
78 other persons armed with datars and kirpans, standing on the road. The
complainant further alleged that on seeing Gurjant Singh on the motorcycle,
Balbir Singh raised a lalkara asking others to catch him and teach him a
lesson for having quarrelled with them. On hearing the lalkara, Jarmanjit
Singh, Stalinjit Singh, Uday Singh, Gurdev Singh, Gurcharan Singh,
Chamkaur Singh, Sukhraj Singh and the unidentified persons started causing
injuries to Gurjant Singh. The petitioner and Satnam Singh, out of fear,
stepped back and raised an alarm. Thereupon, the assailants fled towards
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Harike on the GT Road via Canal Minor Bridge Khara in cars and
motorcycles, carrying their weapons. The petitioner and Satnam Singh then
proceeded towards the place of occurrence and found Swaran Singh lying
injured on the road and Gurjant Singh lying in the paddy field near the road
with numerous injuries. Gurjant Singh died at the spot. The petitioner called
his brother-in-law Sukhdev Singh and his son-in-law Dogar Singh. The police
station was telephonically informed about the incident. The petitioner stated
that there had been an earlier dispute between his son and the assailants and
alleged that all the accused, in furtherance of their common intention, had
murdered his son by causing injuries to him.
3. After registration of the FIR, investigation proceedings were
initiated. Initially, investigation was conducted by the local police. Certain
accused were arrested, whereas others were declared proclaimed offenders.
During the course of proceedings, the petitioner approached this Court
complaining of inaction and alleging influence being exercised by the
accused. This Court passed various orders in the matter. Ultimately, vide
detailed order dated 06.12.2019, this Court, noticing the circumstances
relating to the investigation, prosecution and conduct of the earlier trial,
directed reinvestigation of the entire case by Shri Kunwar Vijay Pratap Singh,
Inspector General of Police. The order was passed after this Court noticed,
inter alia, serious deficiencies in the investigation and prosecution and
apprehension of interference with a fair trial. Pursuant thereto, reinvestigation
was conducted and a report under Section 173(8) Cr.P.C. was submitted. The
report considered, inter alia, the allegations against Stalanjit Singh, Gurdev
Singh, Gurcharan Singh, Jarmanjit Singh, Uday Singh, Chamkaur Singh,
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Sukhraj Singh and Balbir Singh and recommended proceedings in respect of
offences under Sections 302, 201, 120-B, 148 and 149 IPC.
4. It is relevant to notice that, during the earlier proceedings,
Gurdev Singh, Stalanjit Singh and Gurcharan Singh had been tried by the
learned trial Court and were acquitted. Thereafter, when the supplementary
report pursuant to reinvestigation was placed before the learned trial Court, an
application was moved on behalf of the complainant seeking summoning of
the said accused. The learned trial Court, vide order dated 25.03.2021,
declined the prayer, inter alia, observing that the earlier judgment of acquittal
continued to remain in force and that this Court's order dated 23.03.2021 had
not directed retrial of the accused already acquitted. The learned trial Court
also noticed that this Court had directed that the trial be concluded
expeditiously after affording opportunity of hearing to all concerned.
5. The petitioner has now approached this Court seeking transfer of
the trial outside District Tarn Taran principally on the ground that,
notwithstanding the earlier order dated 06.12.2019, the same approach is
being adopted by the prosecution and the learned trial Court.
6. It is argued by learned counsel for the petitioner that the present
case is not an ordinary case warranting transfer merely on the basis of an
apprehension. It is submitted that this Court had, in the earlier proceedings
arising out of the very same FIR, already recorded serious findings regarding
the conduct of the investigating agency, the prosecuting agency and the trial
Court and had found that their conduct had resulted in miscarriage of justice.
It is argued that despite the order dated 06.12.2019 and the reinvestigation
conducted pursuant thereto, the same pattern has continued. Learned counsel
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submits that the earlier order of this Court specifically noticed that proclaimed
offenders were able to exercise influence, witnesses had resiled from their
earlier statements, the Public Prosecutor had not acted in the requisite manner
and the learned trial Court had failed to exercise its powers to ensure a fair
trial. These circumstances, coupled with the subsequent conduct of the
prosecution and the learned trial Court, give rise to a reasonable apprehension
in the mind of the petitioner that he would not receive a fair trial at Tarn
Taran. It is further submitted that even after the reinvestigation, the
prosecution has failed to examine the material witnesses in the manner
required and that the learned trial Court has proceeded with undue haste.
Learned counsel has particularly referred to the application dated 22.09.2021
moved by the petitioner before the learned trial Court wherein he objected to
the recording of the statement of Satnam Singh, alleging that the said witness
had sided with the accused. It is submitted that this subsequent conduct
demonstrates that the apprehension expressed by the petitioner is genuine and
not imaginary. With these broad submissions, it is urged that the petition
deserves to be allowed and the case/trial deserves to be transferred outside the
District Tarn Taran. To fortify his arguments, learned counsel for the
petitioner has relied upon Himanshu Singh Sabharwal v. State of Madhya
Pradesh and others, 2008 (3) SCC 602 .
7. Learned State counsel has opposed the petition by submitting
that there is no justification for transferring the trial. It is submitted that
pursuant to the earlier order of this Court dated 06.12.2019, the matter was
reinvestigated by the officer nominated by this Court and the resultant report
under Section 173(8) Cr.P.C. was placed before the competent Court. The
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CRM-M-43013-2021 (O&M) -6-

learned trial Court is seized of the matter and is proceeding in accordance
with law. The earlier proceedings and the circumstances which resulted in the
order for reinvestigation cannot, by themselves, constitute a ground for
presuming that the present trial would also be unfair. It is submitted that the
petitioner has not been able to point out any subsequent judicial order or
specific act of the learned trial Court demonstrating bias or denial of a fair
opportunity to him. The learned trial Court has already been directed by this
Court to conclude the trial expeditiously, particularly keeping in view that the
FIR dates back to the year 2014 and that transfer of the matter at this stage
would only result in further delay. Hence, it is urged that the petition is liable
to be dismissed.
8. Learned counsel appearing for the private respondents No. 2 to 6
have also opposed the petition. It is submitted that the present petition has
been filed only with a view to delay the trial. It is further submitted that the
petitioner has not approached this Court with clean hands and has deliberately
concealed a material circumstance, that he himself appeared as PW-1 in the
earlier trial and did not support the prosecution case. It is submitted that in his
examination-in-chief, the petitioner specifically stated that the accused
persons, including Balbir Singh, Jarmanjit Singh, Uday Singh, Chamkaur
Singh and Sukhraj Singh, had not caused injuries to his son Gurjant Singh and
had no concern with the occurrence. A copy of the petitioner's deposition has
been placed on record as Annexure R-4/1. It is well settled that the prayer for
transfer of case should be allowed only when there is a well-substantiated
apprehension that justice will not be dispensed with. It is accordingly argued
that the petitioner cannot suppress such a material part of the earlier
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CRM-M-43013-2021 (O&M) -7-

proceedings and thereafter seek transfer of the trial on the ground that the
earlier trial was unfair. Learned counsel submits that the present petition is
devoid of merit and deserves to be dismissed. To fortify their arguments,
learned counsel for the private respondents have relied upon Nahar Singh v.
Union of India, (2011) 1 SCC 307; Deepak Khanna v. State of Punjab, 2025
NCPHHC 27053; Dalip Singh v. State of U.P. and others, (2010) 2 SCC
114; Madan Lal v. CBI, 2004 (3) RCR (Cr.) 849.
9. This Court has heard the rival submissions of learned counsel for
the parties.
10. At the outset, it is necessary to notice that the present case has a
chequered history. The earlier proceedings arising out of the same FIR did
lead to intervention by this Court. Vide order dated 06.12.2019, this Court,
after noticing serious circumstances relating to the investigation, prosecution
and earlier trial, directed reinvestigation of the matter. This Court had, inter
alia, noticed allegations regarding witnesses resiling from their statements,
failure of the investigating agency to perform its duties and shortcomings on
the part of the prosecution and the trial Court. There can, therefore, be no
dispute that the petitioner had legitimate grievances at the relevant stage and
that the circumstances then prevailing were considered sufficiently serious by
this Court to warrant reinvestigation. However, the question before this Court
in the present petition is not whether the earlier proceedings suffered from
deficiencies. Rather, the question is whether the petitioner has established a
present and reasonable apprehension that he cannot receive a fair trial before
the learned trial Court at Tarn Taran. In this regard, a significant subsequent
development cannot be lost sight of. Pursuant to the order dated 06.12.2019,
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reinvestigation was actually conducted by the officer nominated for the
purpose and a report under Section 173(8) Cr.P.C. was submitted before the
competent Court. The reinvestigation report considered the allegations against
the accused and the matter thereafter came to be dealt with by the learned trial
Court.
11. Further, vide order dated 23.03.2021, this Court, while dealing
with the proceedings arising out of the reinvestigation report, noticed that the
report under Section 173(8) Cr.P.C. had already been presented and that the
learned trial Court was seized of the matter. No direction was issued by this
Court for retrial of the accused who had already been acquitted. Rather, the
learned trial Court was directed to conclude the trial expeditiously after
affording opportunity of hearing to all concerned.
12. The subsequent order dated 25.03.2021 passed by the learned
trial Court is also of considerable significance. The learned trial Court
considered the application moved for summoning the accused who had
already been acquitted and dealt with the effect of the earlier judgment of
acquittal as well as the order passed by this Court. The learned trial Court
recorded that the earlier judgment of acquittal remained in force and that the
report under Section 173(8) Cr.P.C. did not disclose any new evidence against
the persons already tried and acquitted.
13. The petitioner has not been able to demonstrate that the aforesaid
approach of the learned trial Court, whether right or wrong on merits,
establishes a present bias against him or an inability of the Court to conduct a
fair trial. The power of transfer under Section 407 Cr.P.C. is not intended to
operate as an appellate jurisdiction over every interlocutory or procedural
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order passed by the trial Court. Unless the material placed before the Court
demonstrates circumstances giving rise to a reasonable apprehension that
justice would not be done, the extraordinary power of transfer ought not to be
exercised. The principal contention raised by learned counsel for the
petitioner is that, in view of the earlier circumstances noticed by this Court in
its order dated 06.12.2019 and the subsequent conduct of the prosecution and
the trial Court, the petitioner has a genuine apprehension that he would not
receive a fair trial at Tarn Taran. There can be no quarrel with the proposition
of law enunciated in Himanshu Singh Sabharwal’s case (supra) . In that
case, the Hon'ble Supreme Court emphasised that a fair trial is not confined to
the interests of the accused alone but also encompasses the rights and interests
of the victim and the society. It was also observed that a fair trial necessarily
requires an impartial Judge, a fair prosecutor and an atmosphere of judicial
calm and that where witnesses are threatened or compelled to give false
evidence, the fairness of the trial is seriously compromised. However, these
observations were made in the backdrop of circumstances where a number of
prosecution witnesses, including three police officials, had resiled from their
statements recorded during investigation; allegations of coercion and threats
to witnesses had been specifically raised; the investigating agency and the
Public Prosecutor had themselves come under serious doubt and the Public
Prosecutor had not even cross-examined the witnesses who had resiled from
their earlier statements. It was in that factual background that the Hon'ble
Supreme Court considered transfer of the trial necessary in the interests of a
fair trial. Thus, the said judgment undoubtedly recognises the importance of
protecting witnesses and ensuring a fair trial, but it does not lay down that
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every allegation of a witness having turned hostile or every grievance against
the manner in which the prosecution conducts a case must necessarily result
in transfer of the trial.
14. On the other hand, in Nahar Singh Yadav’s case (supra) , the
Hon'ble Supreme Court, while reiterating that a true and fair trial is the sine
qua non of Article 21 of the Constitution, has cautioned that the power of
transfer is to be exercised sparingly and with great circumspection. It was
further held that a transfer should ordinarily be ordered only where there is a
well-substantiated apprehension that justice will not be dispensed impartially,
objectively and without bias. It was further observed that a mere expression of
apprehension, without material demonstrating such apprehension, would not
justify transfer of the trial. The Hon'ble Supreme Court in Nahar Singh
Yadav’s case (supra) also delineated certain broad circumstances which may
justify transfer, including where the State machinery or prosecution is acting
hand in glove with the accused and there is likelihood of miscarriage of
justice; where there is material showing that the accused may influence
prosecution witnesses or cause physical harm to the complainant; where the
atmosphere is such that a fair and impartial trial cannot be held; or where
there is material to infer that persons hostile to the administration of justice
are interfering or are likely to interfere with the course of justice. At the same
time, the Court cautioned that transfer is not to be ordered as a matter of
routine merely because an interested party has expressed some apprehension
regarding the conduct of the trial.
15. Tested on the aforesaid principles, this Court finds that the
petitioner has not been able to establish any present and objectively
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reasonable apprehension warranting transfer of the trial. No doubt, the earlier
proceedings arising out of the same FIR had led this Court to pass the order
dated 06.12.2019 directing reinvestigation after noticing serious deficiencies
in the investigation, prosecution and the manner in which the earlier
proceedings had progressed. However, pursuant to the said order,
reinvestigation was in fact conducted and a report under Section 173(8)
Cr.P.C. was submitted before the competent Court. The subsequent
proceedings, therefore, have to be assessed on the basis of the material
presently available and not merely on the basis of the circumstances which
existed prior to the order of reinvestigation.
16. The grievance regarding witness Satnam Singh also does not, in
the facts of the present case, justify transfer. Significantly, the petitioner
himself moved an application before the learned trial Court stating that
Satnam Singh had sided with the accused and had colluded with them and,
therefore, the petitioner did not want his evidence to be recorded,
apprehending that examination of the said witness would damage the
prosecution case. Thus, the very circumstance now sought to be relied upon
by the petitioner as indicative of an unfair trial is one in respect of which the
petitioner himself sought to prevent the witness from entering the witness-
box. The mere fact that the learned Public Prosecutor desired to examine
Satnam Singh cannot, by itself, be regarded as evidence of collusion with the
accused. Whether the witness supports the prosecution or resiles from his
earlier version is a matter to be assessed in accordance with law by the
learned trial Court.
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17. There is yet another significant aspect. Respondents No.4 and 5
have specifically pointed out that the petitioner himself appeared as PW-1 in
the earlier trial and made a statement substantially exonerating the accused
persons from involvement in the occurrence. The said material circumstance
has not been disclosed by the petitioner in the present petition. Without
expressing any opinion upon the evidentiary value or legal effect of the said
deposition, such selective disclosure of the proceedings of the earlier trial is
certainly relevant while examining the bona fides and reasonableness of the
apprehension now projected. The petitioner cannot simultaneously rely upon
the earlier trial and the circumstances which resulted in the order dated
06.12.2019, while omitting a material circumstance emerging from the very
same trial, namely, his own deposition as PW-1. This selective narration of
facts does not assist the petitioner in demonstrating that the apprehension
entertained by him is founded upon objective circumstances rather than upon
his perception of the manner in which the prosecution should conduct the
case.
18. This Court is conscious of the fact that the earlier order dated
06.12.2019 contained serious observations regarding the investigation,
prosecution and the earlier trial. Those observations cannot be diluted or
wished away. However, they culminated in a specific corrective measure,
namely, reinvestigation of the case. The reinvestigation has thereafter been
carried out and the resultant report has been placed before the learned trial
Court. The petitioner has not been able to demonstrate any subsequent
conduct of the learned Presiding Officer of such nature as would establish
personal bias or demonstrate that the Court is incapable of conducting the trial
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fairly and impartially. It is also pertinent to note that the learned trial Court,
while dealing with the subsequent proceedings, considered the legal effect of
the earlier acquittal of Gurdev Singh, Stalanjit Singh and Gurcharan Singh
and recorded reasons for declining to subject the said accused to a fresh trial
in view of the subsisting judgment of acquittal. Whether the said order is
legally sustainable on all its aspects is not the question before this Court in the
present proceedings. An order which may be adverse to the petitioner, or even
an order which the petitioner considers erroneous, does not by itself establish
bias or furnish a ground for transfer of the entire trial.
19. It is also relevant that the FIR relates to an occurrence of the year
2014. This Court has already directed the learned trial Court to conclude the
proceedings expeditiously after affording adequate opportunity to all
concerned. In such circumstances, transfer of the trial to another District, in
the absence of cogent material demonstrating that justice cannot be fairly
administered by the present Court, would only result in further delay in the
conclusion of a long-pending criminal trial. Thus, keeping in view the
aforesaid discussion, this Court is of the considered view that the petitioner
has failed to cross the threshold of establishing a reasonable, genuine and
well-substantiated apprehension that he would not receive a fair and impartial
trial before the learned trial Court at Tarn Taran. The earlier circumstances
which necessitated intervention by this Court and reinvestigation are
undoubtedly relevant, but they cannot constitute a perpetual ground for
transfer in the absence of material demonstrating continuing prejudice or
present circumstances rendering a fair trial impossible. Consequently, no case
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for exercise of the extraordinary power of transfer under Section 407 Cr.P.C.
is made out. The present petition is, accordingly, dismissed.
20. It is, however, clarified that the observations made herein are
confined solely to the question of transfer of the trial and shall not be
construed as an expression of opinion on the merits of the criminal case or on
the evidentiary value of the statements of any of the witnesses.




31.08.2026 (MANISHA BATRA)
Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari
JUDGE



Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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