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Supreme Court of India
Jatinderveer Arora vs State Of Punjab on 25 November, 2020Author: Hrishikesh Roy
Bench: Sanjay Kishan Kaul, Hrishikesh Roy
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRIMINAL) NO. 452 OF 2019
Jatinderveer Arora & Ors. Petitioners
Versus
State of Punjab Respondent
WITH
TRANSFER PETITION (CRIMINAL) NO. 459 OF 2019
TRANSFER PETITION (CRIMINAL) NO. 458 OF 2019
TRANSFER PETITION (CRIMINAL) NO. 461 OF 2019
TRANSFER PETITION (CRIMINAL) NO. 460 OF 2019
TRANSFER PETITION (CRIMINAL) NO. 462 OF 2019
JUDGMENT
Hrishikesh Roy, J.
1. These petitions are filed under Section 406 of
the Code of Criminal Procedure, 1973 (for short “the
CrPC”) read with Order XXXIX of the Supreme Court
Rules seeking transfer of Trial of criminal cases
pending
Signature Not Verified
before the Courts at Bhatinda, Moga and
Digitally signed by
Anita Malhotra
Date: 2020.11.25
16:55:43 IST
Reason:
Faridkot districts to competent Court in Delhi or to
any nearby State, out of Punjab.
Page 1 of 17
2.1 Mr. Ranjit Kumar, the learned Senior Counsel for
the petitioners submits that as the matters relate to
alleged sacrilege of the holy book, Shri Guru Granth
Sahibji in different places in Punjab, deep anguish
and bitterness is generated amongst a particular
religious group, who form majority of the population
in the State of Punjab and therefore the accused who
are members of the Dera Sacha Sauda sect, are facing
bias and prejudice and are unlikely to get a fair
trial in the face of strong presumption of
culpability.
2.2 According to the petitioners, the situation in
Bhatinda and other places is communally surcharged
where, fair trial is a near impossibility. In support
of such contention, the Senior Counsel refers to the
murder of the accused Mohinder Pal Singh Bittoo on
22.06.2019 inside the Nabha Central jail, which
according to Mr. Kumar, clearly shows the threat to
the lives of other co-accused in the hands of the
radical elements in the State.
Page 2 of 17
2.3 Moreover, public appeals have been made to
socially boycott the accused and also to those
dealing with them, such as lawyers, doctors and taxi
drivers and these developments would indicate the
serious difficulties faced by the accused in
conducting their defence.
2.4 The learned Senior Counsel submits that a forced
statement under Section 164 CrPC was obtained from
the petitioner Jatinderveer Arora and this would
suggest that in Punjab, an unbiased prosecution
cannot be ensured.
2.5 The mass gathering in the court premises where
these cases are listed on the given dates, is
highlighted by the Senior Counsel to emphasize the
threat to the life of the accused since adequate
arrangement and security has not been provided by the
State.
3.1 Representing the State of Punjab, Mr. Harin P
Raval, learned Senior Counsel on the other hand
argues that no case for transfer is made out by the
petitioners. The Senior Counsel submits that although
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petitioners speak of surcharged atmosphere and threat
to their life in Punjab, after getting bail, they
continue to reside and conduct their affairs in their
respective place without any threat or hindrance. The
State Counsel then submits that petitioners have not
suffered any prejudice in conducting their defence as
the same two lead counsels continue to represent them
since beginning. That apart, no specific instance, of
denial of medical or transportation service or legal
assistance is brought to the Court’s notice,
notwithstanding the so called public appeal made by
few people.
3.2 According to the State’s lawyer, the petitioners
have suppressed material facts. Moreover, one
solitary incident of Section 164 CrPC statement of
one of the petitioners i.e. Jatinderveer Arora (CHI
No.3/2019) is being relied upon by the other
petitioners to project prejudice although they are
involved in other cases. It is then pointed out that
Jatinderveer Arora while in judicial custody,
volunteered to record his statement for which he was
produced on 22.11.2018 before the JMIC, Phul but on
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that date, he developed cold feet and was taken back
and the learned Magistrate directed the SSP, Bhatinda
to ensure safety to the accused. Later, on
01.12.2018, the same person voluntarily recorded his
statement before the Magistrate and this is now part
of the court records. On that occasion, the concerned
Magistrate administered caution and satisfied himself
that the petitioner was not pressurized or threatened
and made a voluntary disclosure.
3.3 On the security front, Mr. Raval submits, on
instruction from State DGP, that fool proof
arrangements will be made and security will be
provided, to allay all apprehensions of the
petitioners.
3.4 The difficulties for the witnesses and the
prosecution, if the trial venue is to be shifted out
of Punjab, is also highlighted from the respondents
side.
4. The question to be answered here is whether the
situation in Punjab is so communally surcharged that
the petitioners will be deprived of fair trial, if
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they are to be conducted within the State. According
to the petitioners, the situation in the State is
surcharged and non-conducive for them. Yet, as can
be seen, the petitioners have not moved out and
continue to reside in the usual place of residence in
the State and doing their work/business in a routine
manner. No specific instance of prejudice has been
brought to this Court’s notice on account of social
boycott call or appeal to the Medical professionals
or taxi operators, to deny co-operation. Most
particularly, no complaint is lodged before the court
or to the authorities about any threat or
intimidation.
5. While there is a specific instance of one of the
defence lawyer disassociating himself from the case
on personal ground, the two regular lawyers Mr. K.S.
Brar and Mr. R.K. Rana continue to defend the accused
since January, 2019 without any break or difficulty.
This would suggest that petitioners defence is not
being compromised in Punjab and they are receiving
adequate legal assistance.
Page 6 of 17
6. The case materials reflect that one of the
petitioners, Jatinderveer Arora on the first
occasion, backed off from recording his Section 164
CrPC statement on 22.11.2018, but the same person
voluntarily recorded his statement on 01.12.2018 and
this is now part of the trial Court records. This
solitary instance pertaining to the CHI No. 3/2019
(relating to one of the petitioners of the
TP(Crl.) No.452/2019), is however banked upon by all
the other petitioners without any basis. The order
sheet of the proceedings reflects clearly that the
Magistrate administered caution and duly satisfied
himself on both occasions to ensure that legal
procedures were followed and statement was free and
not under pressure. The recording of the statement on
01.12.2018 in the CHI No.3/2019 is found mentioned in
the additional affidavit filed by the petitioner.
7. It would be appropriate at this stage to note the
cases for which these transfer petitions are filed
and the involvement of the petitioners in which of
those. The following chart will reflect this and the
earlier stage of those cases:
Page 7 of 17
Sl. Details of TP (Crl.) Case No. FIR Details Stage
No
.
1. TP(Crl.) No. 452/2019 CHI No.3/2019 FIR No.161/2015 dt. Charge
Jatinderveer Arora & Ors. Vs. 20.10.2015 NDOH: 21.09.2019
State of Punjab PS Dayalpura, Dist.-
Bathinda
2. TP(Crl.) No. 458/2019 CHI No.4/2019 FIR No.86/2016 dt. Charge
Baljit Singh & Ors. Vs. State of 21.06.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-
Bathinda
3. TP(Crl.) No. 459/2019 CHI No.84/2019 FIR No.79/2015 dt. Prosecution
Prithvi Singh & Ors. Vs. State of 04.11.2015 evidence
Punjab PS Samalsar, Dist.-Moga NDOH: 23.09.2019
4. TP(Crl.) No. 460/2019 CHI No.6/2019 FIR No.98/2016 dt. Charge
Baljit Singh & Ors. Vs. State of 03.07.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-
Bathinda
5. TP(Crl.) No. 461/2019 CHI No.5/2019 FIR No.89/2016 dt. Charge
Bajit Singh & Ors. Vs. State of 29.06.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-
Bathinda
6. TP(Crl.) No. 462/2019 SC No.67/2019 FIR No.89/2018 dt. Evidence
Sukhwinder Singh @ Sunny & 13.06.2018 NDOH: 09.10.2019
Ors. Vs. State of Punjab PS City Kotkapura, Dist.-
Faridkot
8. This Court is conscious that the matter emanates
from the State of Punjab and the accused, the
witnesses and the prosecutors are all from the State.
If the trial is shifted out, all of them will face
difficulties. The State’s pleading shows that those
accused who have a threat implication have been
provided personal security by the district police.
The learned Senior Counsel for the State in the
context submits that elaborate arrangements have been
Page 8 of 17
made on orders of the State’s DGP and on the trial
date, additional force are deployed in the concerned
Courts, to ensure safety of the petitioners and all
other stakeholders. Moreover, as the sacrilege
incidents occurred in 2015, with passage of time, the
atmosphere is expected to have mellowed down
considerably. This can also be gathered from the fact
that the petitioners who reside in different
districts in Punjab are doing their work or business
in a routine manner, without any inhibition.
9. In such a scenario, it has to be evaluated
whether fair trial is an impossibility, before the
Courts in Punjab or is it a case of mere apprehension
by the accused.
10. In support of their rival contentions, learned
Senior Counsel Mr. Ranjit Kumar for the petitioners
and Mr. Harin P Rawal, the learned Senior Advocate
for the State of Punjab, have relied on Maneka Sanjay
Gandhi Vs. Rani Jethmalani1, Abdul Nazar Madan Vs.
State of T.N. & Anr.2, R. Balakrishna Pillai Vs.
1 (1979) 4 SCC 167
2 (2000) 6 SCC 204
Page 9 of 17
State of Kerala3, Zahira Habibullah H. Sheikh Vs.
State of Gujarat4, Sri Jayendra Saraswathy Swamigal
(II), T.N. Vs. State of T.N.5, Captain Amrinder Singh
Vs. Prakash Singh Badal & Ors.6 and Nahar Singh Yadav
& Others Vs. Union of India & Ors7.
11. The proposition of law that emanates from the
above judgments is that for transfer of trial from
one Court to another, the Court must be fully
satisfied about existence of such factors which would
make it impossible to conduct a fair trial. General
allegation of surcharged atmosphere is not however
sufficient. The apprehension of not getting a fair
and impartial trial cannot be founded on certain
grievances or convenience of the accused but the
reasons have to be more compelling than that. No
universal Rules can however be laid down for deciding
transfer petitions and each one has to be decided in
the backdrop of that case alone. One must also be
mindful of the fact that when trial is shifted out
from one State to another, it would tantamount to
3 (2000) 7 SCC 129
4 (2004) 4 SCC 158
5 (2005) 8 SCC 771
6 (2009) 6 SCC 260
7 (2011) 1 SCC 307
Page 10 of 17
casting aspersions on the Court, having lawful
jurisdiction to try the case. Hence powers under
Section 406 CrPC must be exercised sparingly and only
in deserving cases when fair and impartial trial
uninfluenced by external factors, is not at all
possible. If the Courts are able to function
uninfluenced by public sentiment, shifting of trial
would not be warranted.
12. Analyzing the earlier precedents on the issue,
this Court in Umesh Kumar Sharma Vs. State of
Uttarakhand8, stated the legal position as under:-
“20. The above legal enunciations make it
amply clear that transfer power under
section 406 of the Code is to be invoked
sparingly. Only when fair justice is in
peril, a plea for transfer might be
considered. The court however will have to
be fully satisfied that impartial trial is
not possible. Equally important is to verify
that the apprehension of not getting a level
playing field, is based on some credible
material and not just conjectures and
surmises.”
13. Here the projection of surcharged atmosphere is
not borne out by the corresponding reaction of the
8 2020 SCC OnLine SC 845
Page 11 of 17
petitioners, who are out on bail. Being residents of
Punjab, they continue to reside at their usual place
and are going about their routine affairs. If their
threat perceptions were genuine, they could not have
gone about their normal ways. For this reason, the
Court is inclined to believe that the atmosphere in
the State does not justify shifting of the trial
venue to another State.
14. We must also be mindful of the fact that the
sacrilege incidents occurred in 2015 and it has been
more than 2 years since the petitioners were arrayed
as accused in the cases. During this long period, no
complaint has been made by the petitioners of any
threat to their security or to their associates. The
zimni orders of the Trial Court does not reflect any
bias faced, either by the accused or their family.
Insofar as the death of the accused Bittoo in Nabha
jail, the projection of the State is that he was
murdered by jail inmates undergoing life imprisonment
in some other cases and for this incident FIR under
Section 302, 34, 120B IPC is registered in PS Sadar,
Nabha, chargesheet has been filed and trial has
Page 12 of 17
commenced. It is not possible at this stage to say if
this incident has any link with the other cases or it
is a standalone event. Barring this issue, none of
the petitioners have raised any grievances before the
court or before the police and inference must
accordingly will have to be drawn against their
transfer plea.
15. The learned State counsel informs the Court that
out of the six cases mentioned in the chart (not
uptodate), the trial in one case (FIR 79/2015- State
Vs. Prithvi Singh) is at the stage of final
arguments. The other five cases are at the stage of
evidence or charge stage. It will therefore not be
fair to the prosecution, the State and the witnesses
who are yet to testify, to shift the proceeding
without compelling reasons as it will inevitably
delay the trial. One must also remember that
convenience of all parties should be looked at and
not just the party which is seeking transfer.
16. Another vital aspect, as has been pointed out by
the state counsel, will bear consideration. The
Complainant Iqbal Singh, in relation to the FIR
Page 13 of 17
161/15 (Jatinderveer Arora Vs. State of Punjab) filed
application with prayer to shift the case from JMIC,
Phul to any other Court in Bhatinda. The said
application came to be dismissed by the learned Chief
Judicial Magistrate, Bhatinda by an order dated
04.02.2020, wherein it has been recorded that the
accused opposed the transfer application. In such
circumstances, the contrary plea for shifting of
trial venue made before this Court would suggest that
the Petitioners have taken conflicting stand on
shifting of trial venue before different forums.
17. Mr. Ranjit Kumar, the learned Senior Counsel has
heavily relied upon two judgments of this Court [Sri
Jayendra Saraswathy Swamigal (II) (supra) and Zahira
Habibullah H. Sheikh (supra)] where change of trial
venue was allowed. In the present matter, although
the case could generate strong feelings between the
opposing groups, no such overwhelming factors as was
visible in Sri Jayendra Saraswathy Swamigal (II)
(supra) are brought to light by the learned counsel.
In the second case i.e. Zahira Habibullah H. Sheikh
(supra), the Court found that the State was
Page 14 of 17
conducting the investigation in a partisan manner and
likelihood of miscarriage of justice was visible.
The subversion of justice delivery system in the
concerned State was seen and congenial atmosphere was
found missing. For such compelling factors, the Court
directed that re-trial shall be done by a Court under
the jurisdiction of the Bombay High Court and public
prosecutor be changed. However, the circumstances in
the present matters cannot be equated with those
noticed in Zahira Habibullah H. Sheikh (supra) or in
Sri Jayendra Saraswathy Swamigal (II) (supra).
Therefore, I am of the considered opinion that
similar relief cannot be granted in the present
proceedings.
18. From the available material, this Court cannot
reasonably conclude that the situation in Punjab is
not conducive for a fair trial for the petitioners.
The few instances mentioned by the petitioners’
counsel may suggest heightened feelings amongst
different groups but they do not in my estimation,
call for transfer of proceedings to another State.
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19. Moreover, it cannot just be the convenience of
the petitioner but also of the Complainant, the
Witnesses, the Prosecution. The larger issue of trial
normally being conducted by the jurisdictional Court
must also weigh on the issue. When relative
convenience and difficulties of all the parties
involved in the process are taken into account, the
conclusion is inevitable that no credible case for
transfer of trial to alternative venues outside the
State of Punjab is made out, in the present matters.
20. The final submission of Petitioners’ counsel was
that, if the Trials cannot be shifted to Delhi, they
should be shifted to Chandigarh. This was not the
pleaded case of the Petitioners. The suggested
alternate venue is Punjab’s capital and even though
Chandigarh is an Union Territory, the population
pattern in the city is like the rest of Punjab. Such
alternative plea on the grounds pleaded in these
matters cannot therefore be countenanced.
21. The transfer of trial from one state to another
would inevitably reflect on the credibility of the
State’s judiciary. Except for compelling factors and
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clear situation of deprivation of fair justice, the
transfer power should not be invoked. The present
bunch of cases are not perceived to be amongst such
exceptional categories.
22. For the above reasons, these cases are found
devoid of merit. Nonetheless, the State as assured
to this Court, must make all arrangement to ensure
safe conduct of proceedings at the trial courts and
also provide adequate security to the petitioners and
their associates as might be warranted from the
security perspective. It is however made clear that
the observations in this judgment are only for
disposal of these petitions and should have no
bearing for any other purpose.
23. Subject to the aforesaid cautionary observation,
the cases are dismissed.
……………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
NOVEMBER 25, 2020
Page 17 of 17
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