JAHID SHAIKH & ORS. versus STATE OF GUJARAT & ANR.

10. In support of his aforesaid contention, Mr. Prashant Bhushan also referred to the decisions of this Court in K. Anbazhagan Vs. Supdt. Of Police ((2004 (3) SCC 767], G Surendra Pratap Singh Vs. State of U.P. & Ors. [(2010) 9 SCC 475], and Gurcharan Dass Chadha Vs. State of Rajasthan ((1966) 2 SCR 678 = AIR 1966 SC 1418]. Mr. Bhushan submitted that the law as settled by this Court for transferring a trial did not require the Petitioner to prove that he would be H deprived of a free and fair trial, but the test is whether there are circumstances which create a reasonable apprehension that he might not get a free and fair trial. Learned counsel further submitted that the contention of the State that the case was no longer before the Metropolitan Magistrate and that even the Designated Judge had since been changed, was of little consequence, since trial by a different Judge would not restore the invaluable rights which had been denied to the accused at the stage of framing of charge.

11. Mr. Prashant Bhushan submitted that in the circumstances indicated, it was only just and proper that the Transfer Petition be allowed and that Sessions Case No.38 of 2009 pending before the Special Judge, Ahmadabad, be transferred outside the State of Gujarat for trial.

12. Appearing for the State of Gujarat and the Inspector General of Prisons, Ms. Hemantika Wahi, learned Advocate, strongly opposed the Transfer Petition and contended that it was only after intensive investigation that charge-sheets had been filed against the accused persons who had travelled to different parts of Gujarat as a part of a criminal conspiracy under false and vexatious names and planted bombs at different locations in thickly-populated public places to cause the maximum amount of damage and terror. It was submitted that the allegation made relating to the alleged bias and/or lack of confidence in getting a free and fair trial before the Magistrate and the Designated Sessions Judge, was entirely without foundation, as were the allegations also made against the Jail Authorities. Ms. Wahi submitted that a few orders, even if held to be incorrect, could not be a ground for transferring the entire prosecution out of the State of Gujarat as that would lead to various difficulties for the prosecution in producing witnesses at the time of trial. Ms. Wahi submitted that there were a large number of witnesses in respect of the cases relating to Ahmadabad and Surat and that it would be impossible for such a large number of witnesses to be produced before a Court outside the State of Gujarat for giving [2011) 10 S.C.R. A evidence before a Court where the language used was not Gujarati. Apart from the above, in all the offences which had been consolidated in one Sessions Case, there were 144 charge-sheets/supplementary charge-sheets, each containing on an average 2000 to 3000 pages. It was submitted that if the B prayer made in the Transfer Petition was allowed, it would result in complete injustice, as it was most likely that the trial would end in acquittal of the accused.

13. Ms. Wahi also contended that the allegation of bias c made against the Magistrate or Sessions Judge was no longer relevant since the matter had already been committed by the Magistrate to the Court of Sessions while the learned Sessions Judge had since been elevated as a Judge of the Gujarat High Court and the trial would be conducted by a Judge other than 0 the said Judge against whom the allegation of bias had been made. Ms. Wahi submitted that it was not as if the Petitioners were aggrieved by the entire judiciaty in the State, inasmuch as, such an allegation would be entirely misplaced and in the changed circumstances the arguments advanced in favour of E transfer of the Sessions Case outside the State of Gujarat could no longer be justified and were liable to be rejected.

14. Ms. Wahi submitted that the decision in Zahira Habibulla H. Sheikh's case (supra) was on a completely different set of facts, and, in any event, each case would have F to be treated on its own set of facts and merits. Even the allegation of torture in custody has not been proved to the satisfaction of the Court.

15. Ms. Wahi submitted that the case attempted to be G made out on behalf of the Petitioners for transfer of the Sessions Trial outside the State of Gujarat, is based on suppression of material facts relating to the alleged non-supply of charge-sheet papers. It was urged that the same had been refused despite having been offered to the Petitioners and that H,,1an opportunity was duly given to the Petitioners to engage ' "• Advocates of their choice on their refusal to accept legal aid as offered by the Court or even from the State Legal Services Authority. In fact, most of the accused persons subsequently engaged Advocates of their choice to represent and defend them at the time of trial, which fact had been withheld from the Court. Ms. Wahi submitted that all the allegations made by the Petitioners against the Respondents were entirely false and merited rejection.

16. Having regard to the nature of the relief sought for by the Petitioners, we have considered the submissions made on behalf of respective parties and the materials on record with care and caution. It appears to us that at the initial stages of the investigation and filing of charge-sheets some amount of bias could well have been detected. However, once the matter had gone out of the hands of the Magistrate concerned, no · further bias could be attributed to him. Similarly, the allegation of bias against the District & Sessions Judge was no longer available since the incumbent had been elevated to the Bench and the trial will be conducted by another learned Judge.

17. However, as pointed out by Mr. Prashant Bhushan, learned counsel appearing for the Petitioners, the manner in which the charges had been framed, without giving the Petitioners a meaningful opportunity of meeting the allegations made against them in the charge-sheet, will ultimately have a direct bearing on the trial itself. The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the charge-sheet and the other relevant documents, as indicated in Sections 207 and 208 Cr.P.C., seriously affects the right of an accused to a free and fair trial. lh the instant case, in addition to the above, it has also to be kept in mind that most SUPREME .COURT REPORTS [2011) 10 S.C.R. A of the accused persons in this case are from outside the State of Gujarat and are not, therefore, in a position to understand the documents relied upon by the police authorities as they were in Gujarati which most of the accused were unable to comprehend. Their demand for translated copies of the B documents met with no response, and ultimately it was the very same documents in Gujarati, which were supplied to some of the accused in some of the cases.

18. The physical torture which was said to have been C inflicted on the Petitioners has come on record by way of affidavits to which there is no suitable explanation. Furthermore, the accused persons were not allowed to meet their lawyers without police presence, and as stated by them, it is only natural that an accused in custody will have second thoughts before making or reiterating allegations of torture against the very D persons to whose custody they would have to return.

19. Apart from the above, we also have to consider Ms. Wahi's submissions regarding the convenience of the prosecution which intends to produce a large number of E witnesses, who are all said to be residents of the State of Gujarat. It has been submitted by Ms. Wahi that the examination of such a large number of witnesses could be compromised and/or jeopardized in the event they are required to travel outside the State of Gujarat in connection with the trial. There F will also be a language problem for the witnesses to be examined outside the State of Gujarat, since the majority of the witnesses were acquainted mostly with Gujarati and would be at a disadvantage in providing a true picture of the series of incidents relating to the bomb blasts which were triggered off G in the cities of Ahmedabad and Surat on 26th July, 2008.

20. However, in our criminal justice delivery system the balance tilts in favour of the accused in case of any doubt in regard to the trial. The Courts have to ensure that an accused is afforded a free and fair trial where justice is not only done, H but seen to be done and in the process the accused has to be given the benefit of any advantage that may enure to his/her favour during the trial. As was observed by this Court in Commissioner of Police Vs. Registrar, Delhi High Court [(1996) 6 SCC 323], Article 21 of the Constitution enshrines and guarantees the precious right of life and liberty to a person, deprivable only on following the procedure established by law in a fair trial, assured of the safety of the accused. Except in certain matters relating·to economic offences or in regard to national security, the burden lies heavily on the prosecution to prove its case to the hilt and it is rarely that the accused is called upon to prove his innocence. c

21. This is a case where the apprehension of the accused being denied a free and fair trial within the State of Gujarat has to be considered on the weight of the materials produced on behalf of the accused in support of such apprehension and the prejudice that may also be caused to the prosecution in presenting its case. That the facts involved in this case are of a sensitive nature, cannot be denied, but that by itself cannot be a ground for transfer of the trial outside the State of Gujarat. A good deal of care and caution has to be exercised to see whether the accused/petitioners have been able to make out a case of bias and prejudice on the part of the State or the prosecuting authorities which raises a very real and plausible ground· for transferring the trial pending before the Special Judge, Ahmedabad outside the State of Gujarat. Apart from the above, what has also to be taken into consideration is a conceivable surcharged communal climate which could have a direct bearing on the trial itself. The Court has to undertake a balancing act between the interest of the accused, the victims and society at large in the focus of Article 21 of the Constitution to ensure a free and fair trial to the accused.

22. The question involved in this case has earlier fallen for consideration in various other cases before this Court which have been referred to hereinbefore. It will be profitable to refer to some of the observations made by this Court in such cases.

23. In this regard, we may first refer to a three-Judge Bench decision in the case of G.X. Francis & Ors. (supra), where also this Court was considering a Transfer Petition filed on the apprehension of bias in the minds of the accused. The said petition involved the transfer of a complaint wherein the accused e were said to have been concerned in one way or the other in defamatory statements against the complainant regarding a publication known as the "Niyogi Report". Authoring the judgment on behalf of the Bench, Vivian Bose, J. observed that where there is unanimity of testimony from both sides about the c nature of the surcharged communal tension in the area in question and the local atmosphere is not conducive to a fair and impartial trial, there is a good ground for transfer. The learned Judge also observed that 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 gea~ed to work in the midst of such co11ditions. 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".

24. We may now refer to another three-Judge Bench decision of this Court in the case of Gurcharan Dass Chadha Vs. State of Rajasthan [(1966) 2 SCR 678 =AIR 1966 SC 1418], which also involved a Transfer Petition based on the F ground of reasonable apprehension on the part of the petitioner that justice would not be done to him by the Court before whom the trial was ·pending under the provisions of the Penal Code and the Prevention of Corruption Act. While disposing of the matter, this Court observed as follows : "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 given case does not suffice. The Court has further to see whether the apprehension is reasonable or not."

25. The aforesaid question once again cropped up in Maneka Sanjay Gandhi & Anr. Vs. Miss Rani Jethmalani c [(1979) 4 SCC 169], in a Transfer Petition filed, inter alia, on three grounds, namely, (i) that the parties (complainant and petitioners) reside in Delhi and some formal witnesses also belong to Delhi; (ii) that the petitioner is not able to procure competent legal service in Bombay; and (iii) that the atmosphere in Bombay is not congenial to a fair and impartial trial of the case against her. Referring to the decision in G.X. Francis's case (supra) a Three-Judge· Bench of this Court, dismissed the Transfer Petition upon holding that none of the allegations made by the petitioner made out a case that a fair trial was not possible in the Court where the matter was pending. The mere words of an interested party was insufficient to convince the Court that she was in jeopardy or the Court might not be able to conduct the case under conditions of detachment, neutrality or uninterrupted progress.

This Court, however, went on to say that G it could not view with unconcern the potentiality of a flare up and the challenge to a fair trial. In such circumstances, this Court made certain precautionary observations to protect the petitioner and to ensure for her a fair trial. In K. Anbazhagan Vs. Superintendent of Police, Chennai & Ors. [(2004) 3 SCC [2011) 10 S.C.R. A 788]. while disposing of two transfer petitions, the learned c Judges observed as follows : "A free and fair trial is a 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 minds of the petitioner."

26. Before we proceed to the latest views expressed by D this Court in a Transfer Petition also praying for transfer of a trial outside the State of Gujarat on account of bias and a vitiated communal atmosphere, we may refer to a slightly different view taken by this Court by a Bench of two-Judges in the case of Abdul Nazar Madani Vs. State of T.N. & Anr. E [(2000) 6 SCC 204]. While disposing of a Transfer Petition filed by the accused in the Coimbatore Serial Bomb Blasts case on the allegation that the atmosphere in the State of Tamil Nadu in general and in Coimbatore in particular, being so communally surcharged that his fair and impartial trial there would be F seriously impaired, this Court held that the purpose of a criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. This Court observed that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon G conjectures and surmises. The mere existence of a surcharged atmosphere without there being proof of inability of the Court of holding a fair and impartial trial, could not be made a ground for transfer of a case. The alleged communally surcharged atmosphere has to be considered in the light of the accusations H made and the nature of the crimes committed by the accused seeking transfer of the case. It was observed that no universal and 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.

27. As has been stated hereinbefore, in Zahira Habibul/a H. Sheikh's case (supra), in order to ensure a free and fair trial the atmosphere in which the case is tried should be conducive to the holding of a fair trial. The absence of a congenial atmosphere for such a fair and impartial trial was held to be a good ground for transfer of the case from Gujarat to C Maharashtra.

28. However, such a ground, though of great importance, cannot be the only aspect to be considered while deciding whether a criminal trial could be transferred out of the State which could seriously affect the prosecution case, considering the large number of witnesses to be examined to prove the case against the accused. The golden thread which runs through all the decisions cited on behalf of the parties, is that justice must not only be done, but must also be seen to be done. If the said principle is disturbed, fresh steps can always be taken under Section 406 Cr.P.C. and Order XX.XVI of the Supreme Court Rules, 1966 for the same reliefs.

29. The offences with which the accused have been charged are of a very serious nature, but except for an apprehension that justice would not be properly administered, there is little else to suggest that the charged atmosphere which existed at the time when the offences were alleged to have been committed, still exist and was likely to prejudice the accused during the trial. All judicial officers cannot be tarred · with the same brush and denial of a proper opportunity at the G stage of framing of charge, though serious, is not insurmountable. The accused have their remedies elsewhere and the prosecution still has to prove its case. As mentioned earlier, the communally surcharged atmosphere which existed [2011] 10 'S.C.R. at the time of the alleged incidents, has settled down considerably and is no longer as volatile as it was previously. The Presiding Officers against whom bias had been alleged, will no longer be in charge of the proceedings of the trial.

The conditions in Gujarat today are not exactly the same as they were at the time of the incidents, which would justify the shifting of the trial from the State of Gujarat. On the other hand, in case the Sessions Trial is transferred outside the State of Gujarat for trial, the prosecution will have to arrange for production of its witnesses, who are large in number, to any venue that may c be designated outside the State of Gujarat. At the present moment, the case for transfer of the trial outside the State of Gujarat is based on certain incidents which had occurred in the past and have finally led to the filing of charges against the accused. The main ground on which the Petitioners have sought transfer is an apprehension that communal feelings may, once again, raise its ugly head and permeate the proceedings of the trial if it is conducted by the Special Judge, Ahmedabad. However, such an allegation today is more speculative than real, but in order to dispel such apprehension, we also keep it open to the Petitioners that in the event the apprehension of the petitioners are proved to be real during the course of the trial, they will be entitled to move afresh before this Court for the relief sought for in the present Transfer Petition.

30. The Transfer Petition is disposed of with the aforesaid observations. There will be no order as to costs. 8.8.8. Transfer petition disposed of.