KANAKLATAversusSTATE OF (NCT) OF DELHI & ORS.

                         (2015] 2 S.C.R. 559



A                           KANAKLATA

                                    v.

                STAT!= OF (NCT) OF DELHI & ORS.
B .
                 (Criminal Appeal No.222 of 2015)

                        FEBRUARY 04, 2015

         [T. S. THAKUR, ADARSH KUMAR GOEL AND
C                    R. BANUMATHI, JJ.]

   Transfer petition: Complaint u/ss.3(1)(x), (xi}, (xv) of
   Scheduled Caste and Scheduled Tribe (Prevention of
  Atrocities Act}, 1989 and ss.3231354, /PC - Sessions Judge,
o Rohini discharged the accused persons for offence under
  the Special Act of 1989 - High Court allowed the revision
  petition filed by the complainant with a direction to trial court
  to pass fresh order being uninfluenced by any observation
  made in . earlier order- Complainant filed transfer petition
E on the ground that it apprehended biased approach of the
  trial court in view of its findings recorded in the order of
  discharge passed earlier - Session court dismissed the
  petition - Complainant filed transfer petition before the High
  Court which was also dismissed- On appeal, Held: Majority
F view: Jn the ordinary course, if an order passed by the Court
  is set aside the observations and findings recorded therein
  also get obliterated for all intents and purposes - So also if
  the High Court makes the position clear that any such
G observation shall not influence the Court concerned while
  making a fresh order the same should ordinarily put the
  matter beyond the pale of any controversy- However, there
  may still be situations where the nature of the observations
  made by the court concerned create a reasonable
H                             559
                                                                              ...

     KANAKLATA v. STATE (NCT) OF DELHI & ORS.                       560



apprehension in the mind of the litigant that the Court has          A
so committed itself to a given approach or thought process
that it may not be possible for it to retrace its steps to take a
fair and non-partisan view in the matter- In the instant case,
despite the safeguards provided by the High Court's                       •
observations, the' apprehension of the complainant                   B
continued to subsist- Such apprehension cannot be said to
be wholly misconceived nor can it be dubbed as forum
shopping in disguise - The earlier order passed by trial Court
was so strongly worded that it could in all likelihood give rise     C
to a reasonable apprehension in the mind of the complainant
which cannot be lightly brushed aside - On that test, High
Court ought to have directed a transfer-In as much as itdid
not do so, it is directed to transfer the case to another Court
- Minority opinion: Any casual observations made by a                o
presiding officer of trial court would not be a sufficient ground
for transfer for the reason that trial courts work in a charged
atmosphere and they do not have the benefit of a detached
atmosphere of the higher courts so as to think coolly and
decide patiently-Appellant did not make out any sufficient           E
ground for transfer.

       Allowing the appeal, the Court

     HELD: (Majority opinion) (Per T.S. Thakur and                   F
Adarsh Kumar Goel, JJ)

The trial court had while discharging the accused
persons under the Special Act made certain
observations aboutthe alleged misuse of the provisions               G
of the said Act by unscrupulous elements and also
certain suggestions for remedying that situation. The trial
court had come to the conclusion that there is no real
basis for it to frame any charge against the accused
persons under the said Act. But it is equally true that              H
561         SUPREME COURT REPORTS               [2015] 2 S.C.R.


A     while setting aside that order and directing a fresh order
      on the question of charge, the High Court has clearly
      mentioned that the trial Court shall remain uninfluenced
      by the observation made in its earlier order. That
      observation is, in the opinion of the High Court, a
 8    sufficient safeguard against any possible prejudice to
      the complainant-appellant making transfer of the case
      from the Court at Rohini to any other Court unnecessary.
      Now in the ordinary course if an ord.er passed by the
C     Court is set aside the observations and findings
      recorded therein also get obliterated for all intents and
      purposes. So also if the High Court makes the position
      clear that any such observation shall not influence the
      Court concerned while making a fresh order the same
o     should ordinarily put the matter beyond the pale of any
      controversy. Having said that, there may still be
      situations where the nature of the observations made
      by the court concerned create a reasonable
      apprehension in the mind of the litigant that the Court
E     has so committed itself to a given approach or thought
      process that it may not be possible for it to retrace its
      steps to take a fair and non-partisan view in the matter.
      The present appears to be one such case where despite
      the safeguards provided by the High Court's
F     observations, the apprehension of the complainant
      continues to subsist. Such apprehension cannot be said
      to be wholly misconceived nor can it be dubbed as
      forum shopping in disguise. The earlier order passed
G     by the trial Court is so strongly worded that it could in
      all likelihood give rise to a reasonable apprehension in
      the mind of the complainant which cannot be lightly
      brushed aside. The question is whether the
      apprehension of the complainant is reasonable to direct
H     a transfer. Justice must not only be done but must seem
     KANAKLATA v. STATE (NCT) OF DELHI & ORS.              562



to have been done. A lurking suspicion in the mind of A
the complainant will leave him with a brooding sense of
having suffered injustice not because he had no case,
but because the Presiding Officer had a preconceived
notion about it. On that test the High Court ought to have
directed a transfer. In as much as it did not do so, it is B
directed to transfer the case to another Court. [para 5]
[565-F-H; 566-A-H; 567-A-B]

       HELD: (Minority opinion) (Per Banumathi; J)
                                                             c
1. Earlier when the revision petition was allowed by the
High Court and the matter was remitted back to the trial
court, no apprehension of bias was expressed nor any
request was made for a transfer of the case from the
Special Court to some other court. Under Section 482 D
Cr.P.C., in order to secure ends of justice, the High Court
has inherent power to pass appropriate order. Having
accepted the order of remand to the trial court for
consideration of the matter afresh, the appellant is not .
justified in seeking transfer. The appellant has neither E
challenged the said order of remand nor raised the
apprehension that the trial court may not adopt a fair
approach. The case was registered by the complainant
who were the tenants againstthe respondents-landlords F
numbering as many as nine persons and the matter is
pending trial since 2009. By filing transfer petition in
2013, the appellant seemed to appear to be interested
only in delaying the matter. In considering the transfer
application, it is to be kept in mind that whether a litigant G
could reasonably apprehend a bias attributable to a
presiding Judge. Transfer of a case from one court to
another has serious effects on the Judge from whom
the case is sought to be transferred. Mere presumptions
or possible assumptions are not sufficient for transfer H
563         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A of a case. Only on good and sufficient grounds a transfer
  can be ordered. The appellant has not made out any
  good and sufficient ground for transfer. Any casual
  observations made by a presiding officer of trial court
  would not be a sufficient ground for transfer for the
B reason that the trial courts work in a charged atmosphere
  and they do not have the benefit of a detached
  atmosphere of the higher courts so as to think coolly
  and decide patient!~· Appellant did not make out any
C sufficient ground for transfer and the request for transfer
  is bereft of merits. [Paras 5 to 9] [569-C-H; 570-A-C; 571-
      C]
  K.P. Tiwari v. State of M.P. 1994 (Supp. 1) SCC 540: 1993
D (3) Suppl. SCR 497 - relied on.

                        Case Law Reference

      Per Banumathi, J.:

E 1993 (3) Suppl. SCR 497               relied on       Para 8

      CRIMINALAPPELLATE JURISDICTION: CriminalAppeal No.
      222of2015

  From the Judgment and Order dated 29.08.2013 of the High
F Court of Delhi at New Delhi in Transfer Petition (Crl) No. 31 of
  2013

      Pankaj Kumar for the Appellant.

G .PinkyAnand,ASG, P. K. Dey, Sadhna Sandhu, R. K. Tripathy,
   D. S. Mahra for the Respondents.

            The Judgments of the Court were delivered by

            T. S. THAKUR, J. 1. Leave granted.
H
      KANAKLATA v. STATE (NCT) OF DELHI & ORS.                      564



2. This appeal arises out of an order dated 29th August, 2013        A
passed by a learned Single Judge of the High Court of Delhi
whereby the High Court has dismissed T.P. (Crl.) No.31 of
2013 filed by the appellant seeking transfer of Sessions Case
No.1006 of 2009 from the Court where it is presently pending
to any other Sessions Court at Rohini or Tis Hazari.                 B

3. Sessions Case No.1006 of2009 arises out of FIR No.156/
2008 registered at P.S. Mukherjee Nagar for commission of
offences punishable under Sections 323/354 of the IPC and
Sections 3(i) (X) (XI) (XV) of Scheduled Caste and Scheduled         C
Tribe (Prevention of Atrocities Act), 1989. Additional Sessions
Judge, Rohini, before whom the matter is currently pending,
appears to have heard the parties on the question of framing
of charges and by an order dated 22nd March, 2010                    D
discharged the accused persons for the offences under the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities Act), 1989. The case was in that view made over to
the illaqa Magistrate for consideration whether charges under
the Indian Penal Code need to be framed in the case.                 E

4. The complainant questioned the discharge order passed
by the trial Court before the High Court in a revision petition
which was allowed by the High Court by its order dated 10th
December, 2012 with a direction to the trial Court to pass a         F
fresh order on the subject after hearing both the parties. It was
at this stage, that the-complainant expressed an apprehension
about the fairness of the approach which the trial Court may
adopt in view of the findings recorded in the order of discharge
earlier passed by her. The complainant (appellant herein)            G
expressed these fears first in T.P. (Crl.) No.31of2013 filed
before the Sessions Judge, Rohini which was dismissed by
the said court by order dated 22nd May, 2013 holding that
since no other officer in North West District in Delhi has been
                                                                     H
565         SUPREME COURT REPORTS                    (2015) 2 S.C.R.


 A notified for trial of cases under the Scheduled Caste and
   Scheduled Tribe (Prevention of Atrocities Act), 1989 the prayer
   for transfer in essence was tantamount to asking for a transfer
   to another district which could be allowed only by the High
   Court. It was in the above backdrop that the complainant filed
 B T.P. (Crl.) No.31 of 2013 before the High Court seeking transfer
   of the case to any other Court competent to try the same
   outside Rohini District. That application, as noticed above,
   has been dismissed by the High Court in terms of the order
 C impugned in the present appeal primarily on the ground that
   the order passed by the High Court has made it sufficiently
   clear that the observations made in the order passed by the
   trial Court shall not influence any fresh order which the said
   Court may pass pursuant to the remand made by the High
 o Court. The High Court has also observed that the complainant
   (appellant herein) had while filing Crl. R:P. No.242 of 201 O
   against the discharge order expressed no apprehension nor
   sought transfer of the case from the Court where it is pending
   to any other Court.
 E
     5. We have heard learned counsel for the parties at some
   . length. It is true that the trial Court had while discharging the
     accused persons under the Special Act mentioned above,
     made certain observations about the alleged misuse of the
 F provisions of the said Act by unscrupulous elements and also
     certain suggestions for remedying that situation. It is also true
     that the trial Court had come to the conclusion that there is no
     real basis for it to frame any charge against the accused
     persons under th'e said Act. But it is equally true that while
 G setting aside that order and directing a fresh order on the
     question of charge, the High Court has clearly mentioned that
     the trial Court shall remain uninfluenced by the observation
     made in its earlier order. That observation is, in the opinion of
 H the High Court, a sufficient safeguard against any possible
     KANAKLATA v. STATE (NCT) OF DELHI & ORS.                   566
                 [T. S. THAKUR, J.]

prejudice to the complainant-appellant herein making transfer A
of the case from the Court at Rohini to any other Court
unnecessary. Now in the ordinary course if an order passed
 by the Court is set aside the observations and findings
 recorded therein also get obliterated for all intents and
purposes. So also if the High Court makes the position clear B
that any such observation shall not influence the Court
concerned while making a fresh order the same should
ordinarily put the matter beyond the pale of any controversy.
 Having said that, there may still be situations where the nature C
of the observations made by. the court concerned create a
reasonable apprehension in the mind of the litigant that the
Court has so committed itself to a given approach or thought
process that it may not be possible for it to retrace its steps to
take a fair and non-partisan view in the matter. The present o
appears to be one such case where despite the safeguards
provided by the High Court's observations, the apprehension
of the complainant continues to subsist. We do not think that
such apprehension is wholly misconceived nor can it be
dubbed as forum shopping in disguise. The earlier order E
passed by the trial Court is so strongly worded that it could in
all likelihood give rise to a reasonable apprehension in the
mind of the complainant which cannot be lightly brushed aside.
We must hasten to add that we are not in the least suggesting
that the Presiding Officer of the trial Court is totally incapable F
of adopting a fair approach while passing a fresh order but
then the question is not whether the Judge is biased or
incapable of rising above the earlier observations made by
her. The question is whether the apprehension of the G
complainant is reasonable for us to direct a transfer. Justice
must not only be done but must seem to have been done. A
lurking suspicion in the mind of the complainant will leave him
with a brooding sense of having suffered injustice not because
he had no case, but because the Presiding Officer had a H
567          SUPREME COURT REPORTS                      [2015] 2 S.C.R.


A     preconceived notion about it. On that test we consider the
      present to be a qase where the High Court ought to have
      directed a transfer. In as much as it did not do so, we have no
      option but to interfere and direct transfer of tr ·. case to another
      Court.
B
  6. We are mindful of the fact that the transfer ordered by us
  may cause inconvenience and harassment to the accused
  persons but that can, in our opinion, be taken care of by
  directing that in case an application for exemption from
C personal appearances is filed, the Court concerned shall
  consider the same and pass appropriate orders in accordance
  with law.

  7. In the result, we allow this appeal, set aside the order passed
D by the High Court and direct that Sessions Case No.1006 of
  2009 pending in the Court of Additional District and Sessions
  Judge, Rohini shall stand transferred from that Court to the
  Court of Sessions Judge, Tis Hazari, who shall try the same
  himself or make it over to any other Court duly notified and
E competent to do so. Record of the case shall be transmitted
  to the transferee Court expeditiously.

              R. BANUMATHI, J. I have had the benefit of going
      through the judgment proposed by his Lordship Justice T.S.
 F    Thakur. For the reasons which I have indicated below, I am
      unable to agree with the proposed final decision and in my
      view, the present appeal is liable to be dismissed.

  2. The appellant seeks transfer of Sessions Case
G No.1006/2009 arising out of FIR No.156/2008 registered at
  Police Station Mukherjee Nagar, Delhi. As per the allegations
  made by the complainant/appellant in the FIR dated 4.5.2008,
  they have been the tenants under the accused persons and
H on 3.5.2008, accused/respondent Nos. 2 to 10 obstructed and
      KANAKLATA v. STATE (NCT) OF DELHI & ORS.                    568
                 [R. BANUMATHI, J.)

abused them by uttering objectionable caste based remarks A
against them. On the basis of the complaint lodged by the
complainant, FIR was registered under Sections 323/341/354
and 34 IPC and Section 3(i) (x), (xi) and (xv) of Scheduled
 Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. On the discharge petition filed by respondent Nos.2 B
to 10, learned Additional Sessions Judge, Rohini Courts, vide
Order dated 22.3.2010 discharged all the respondents. Being
aggrieved, the complainant moved the High Court in revision
petition being Criminal Revision No. 242/2010 challenging the C
order of discharge. Vide Order dated 10.12.2012, the High
Court set aside order of discharge and remitted the matter
back to the trial court to consider the matter afresh being
uninfluenced by the observations made in the earlier order
dated 22.3.2010. Thereafter, the complainant moved a transfer D
petition before the District & Sessions Judge, Rohini Courts
and also the High Court. Both the petitions were dismissed
vide Order dated 22.?.2013 and 29.8.2013 respectively. Being
aggrieved, the complainant has filed this appeal by way of
special leave, seeking transfer ofthe Sessions Case No.1006/ E
2009 expressing apprehension that in spite bf the direction of
the High Court, the trial court might proceed on a pre-conceived
notion.

3. We have heard the learned counsel for the appellant and        F
Ms. Pinky Anand, learned Additional Solicitor General of India
for respondent No.1 and Ms. Susmita Lal, learned counsel for
respondent Nos. 2 to 10.

4. An application for transfer of a case pending against the      G
accused cannot be permitted merely because the learned
Sessions Judge had made certain observations and recorded
finding in the earlier order dated 22.3.2010 while allowing the
discharge petition. The said order dated 22.3.2010 was set
                                                                  H
569        SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A aside by the High Court and the. matter was remanded to the
   Sessions Court to consider the matter afresh being
   uninfluenced by any observation made in the earlier order.
   When the earlier order has been set aside by the High Court
   and the matter was remitted back to the Sessions Court for
 B consideration of the matter afresh, apprehension of the
   appellant that the learned trial judge may not adopt a fair
   approach is unteriable.

   5. As rightly pointed out by the High Court, earlier when the
 C revision petition was allowed by the High Court and the matter
   was remitted back to the trial court, no apprehension of bias
   was expressed nor any request was made for a transfer of the
   case from the Special Court to some other court. On behalf of
   the appellant, it is now contended that in the said revision
 0
   petition, the appellant could not have asked for transfer of the
   criminal case. In my considered view, such contention cannot
   be countenanced. Under Section 482 Cr.P.C., in order to
   secure ends of justice, the High Court has inherent power to
 E pass appropriate order. Having accepted the order of remand
   to the trial court for consideration of the matter afresh, the
   appellant is not justified in seeking transfer. The appellant
   has neither challenged the said order of remand nor raised
   the apprehension that the trial court may not adopt a fair
 F approach.

   6. It is pertinent to note that the case has been registered by
   the complainant who were the tenants against the respondents-
   landlords numbering as many as nine persons and the matter
 G is pending trial since 2009. By filing transfer petition in 2013,
   the appellant seems to appear to be interested only in delaying
   the matter.

   7. In considering the transfer application, it is to be kept in
 H mind that whether a litigant could reasonably apprehend a bias
     KANAKLATA v. STATE (NCT) OF DELHI & ORS.                   570
                [R. BANUMATHI, J.]

attributable to a presiding Judge. Transfer of a case from one A
court to another has serious effects on the Judge from whom
the case is sought to be transferred. Mere presumptions or
possible assumptions are not sufficient for transfer of a case.
Only on good and sufficient grounds a transfer can be ordered.
In my considered view, the appellant has not made out any 8
good and sufficient ground for transfer.

8. It is also pertinent to note that any casual observations made
by a presiding officer of trial court would not be a sufficient
ground for transfer for the reason that the trial courts work in a C
charged atmosphere and they do not have the benefit of a
detached atmosphere of the higher courts so as to think cooly
and decide patiently. In this regard, we may usefully refer to
the decision of this Court in K.P. Tiwariv. State of M.P., 1994
                                                                   0
(Supp. 1) SCC 540, in which this Court has observed as under:-

   " ... The higher courts every day come across
    orders of the lower courts which are not justified
   either in law or in fact and modify them or set them
   aside. That is one of the functions of the superior
                                                                  E
   courts. Our legal system acknowledges the
   fallibility of the judges and hence provides for
   appeals and revisions. A judge tries to discharge
   his duties to the best of his capacity. While doing
                                                                  F
   so, sometimes, he is likely to err. It is well said
   that a judge who has not committed an error is
   yet to be born. And that applies to judges at all
   levels from the lowest to the highest. Sometimes,
   the difference in views of the higher and the lower
                                                                  G
   courts is purely a result of a difference in
   approach and perception. On such occasions,
   the lower courts are not necessarily wrong and
   the higher courts always right. It has also to be
   remembered that the lower judicial officers                    H
571          SUPREME COURT REPORTS                  [2015] 2 S.C.R.


  A       mostly work under a charged atmosphere and
          are constantly under a psychological pressure
          with all the contestants and their lawyers almost
          breathing down their necks - more correctly up to their
          nostrils. They do not have the benefit of a detached
  B       atmosphere of the higher courts to think coolly and
          decide patiently. Every error, however gross it may look,
          should not, therefore, be attributed to improper
          motive .... "

  C 9. Appellant has npt made out any sufficient ground for transfer
    and the request for transfer is bereft of merits. The High Court
    has rightly dismissed the transfer petition and same does not
    warrant any interference by this Court. The appeal is
    dismissed.
  D
      Devika Gujral                                     Appeal allowed.




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  G




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