SC: Transfer of Cases Under S.406 of CrPC to be Invoked Only in Exceptional Cases

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A Single Bench of the Supreme Court held that the transfer of trial from one state to another reflects on the credibility of the state’s judiciary. Therefore it must be exercised based on compelling factors and the situation must indicate deprivation of fair justice.

Brief facts of the case

The petitions are filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order 39 of the Supreme Court Rules. It seeks a transfer of Trial of criminal cases pending before the Courts at Bhatinda, Moga, and Faridkot districts to a competent Court in Delhi or any nearby State, out of Punjab.

Petitioner’s Arguments

The matter relates to the sacrilege of the holy book, Shri Guru Granth Sahib. In different places in Punjab, anguish and bitterness were generated amongst religious groups, who form the majority of the population in the State of Punjab. 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 a strong presumption of culpability.

The situation is communally charged in Bhatinda and other places, whereby a fair trial is nearly impossible. There has been a murder of an accused inside the Nabha Central jail, which shows the threat to the lives of other co-accused in the hands of the radical elements in the state.

Public appeals have been made to socially boycott the accused. Also, a forced statement under Section 164 CrPC was obtained from the petitioner. This suggests that an unbiased prosecution cannot be ensured in Punjab.

There are mass gatherings in the court premises where these cases are listed on the given dates. It emphasizes the threat to the life of the accused. No adequate arrangement of security has been provided by the state.

Respondent’s Arguments

Although the petitioners speak of a charged atmosphere and threat to their life in Punjab, they continue to reside and conduct their affairs in their respective places without any threat or hindrance after getting bail.

Petitioners have not suffered any prejudice in conducting their defense as the same two lead counsels continue to represent them since the beginning.

No specific instance of denial of medical or transportation service or legal assistance has been brought to notice.

Also, the Petitioner has voluntarily recorded his statement before the Magistrate.  

If required, on the instruction from State DGP, foolproof arrangements will be made and security will be provided to dismiss all apprehensions of the Petitioners.

The Council highlighted that there will be difficulties that will arise for the witnesses and the prosecution if the trial venue is to be shifted out of Punjab.

Issue for consideration

Whether the situation in Punjab is so communally charged that the petitioners will be deprived of a fair trial if it is conducted within the State?

Court’s Observations

The Bench noted that the petitioners have not moved out and continue to reside in the usual place of residence in the State. No specific instance of prejudice has been brought to this Court’s notice. No instance on account of social boycott call or appeal to the Medical professionals or taxi operators, to deny co-operation has been reported. Moreover, no complaint is lodged before the court or to the authorities about any threat or intimidation.

The two regular lawyers continued to defend the accused in 2019 without any break or difficulty. The Bench opined that this suggests that Petitioners’ defense is not being compromised in Punjab and they are receiving adequate legal assistance.

The matter emanated from the State of Punjab: where the accused, the witnesses, and the prosecutors reside. The court stated that if the trial is shifted out, all of them will face difficulties. Also, the State’s statement shows that those accused who face threats have been provided personal security by the district police.

For transfer of trial from one Court to another, the Court must be fully satisfied with the existence of such factors which would make it impossible to conduct a fair trial. However, a general apprehension of a charged atmosphere is not sufficient.

The Court reasoned that if Petitioners’ threat perceptions were genuine, they could not have gone about their normal routine in the state. Hence, the Bench was inclined to believe that the atmosphere in the state does not justify shifting the trial to another state.

As far as the death of the accused in Nabha jail, the state reports that he was murdered by jail inmates undergoing life imprisonment.

Out of the six cases requesting for transfer, only the trial in one case is at the stage of final arguments. The other five cases are at the stage of evidence or stage of charges. Therefore it will not be fair to the prosecution, the State, and the witnesses who are yet to testify, to shift the proceeding without compelling reasons. It would inevitably delay the trial. 

The court opined that the convenience of all parties should be looked at and not just the party which is seeking a transfer.

Further, the Court stated that the transfer of trial from one state to another inevitably reflects on the credibility of the state’s judiciary. Except for compelling factors and a clear situation of deprivation of fair justice, the transfer power should not be used.

Court’s Decision

The Bench could not find that the situation in Punjab is not conducive for a fair trial for the petitioners. Hence, the transfer petition was dismissed.

Click here to read the judgment in Jatinderveer Arora v. State of Punjab.


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