NAHAR SINGH YADAV & ANR.versusUNION OF INDIA & ORS.

               [201 OJ 13 (ADDL.) S.C.R. 851


              NAHAR SINGH YADAV & ANR.                            A
                              V.
                 UNION OF INDIA & ORS.
      (Special Leave Petition (C) No. 12981 of 2008)

                   NOVEMBER 19, 2010
                                                                  B
 [D.K. JAIN, V.S. SIRPURKAR AND G.S. SINGHVI, JJ.]

      Code of Criminal Procedure, 1973 - s. 406(2) - Power
of Supreme Court to transfer cases and appeals - Criminal
complaint - Allegation of fraudulent withdrawal of huge sum       C
of money in name GPF of class IV court employees by court
staff - Issuance of notification u/s. 6 of 1946 Act by State
Government to transfer investigation to CBI - Charge sheet
filed by CBI against former judges and employees of district
court - CBI seeking transfer of trial from Ghaziabad court to     o
some other court of competent jurisdiction, preferably Delhi
- Maintainability of - Held: On issuance of notification by
State Government uls. 6 of DSPE Act, CBI assumes role of
an investigating agency and also of prosecuting agency in
the particular case and, thus, it is entitled to move an          E
application u/s. 406(2) - However, apprehension entertained
by CBI that the trial of the case at Ghaziabad may not be fair,
resulting in miscarriage of justice is misplaced -
Apprehension of bias could not be based on a bald a/legation
that trial judge and some of the named accused had been
                                                                  F
close associates and some of the witnesses are judicial
officers - Acceptance of such a/legation, without something
more substantial undermines the credibility and the
independence of the entire judiciary of a State - Also plea
that the court of Special Judge, CBI, Ghaziabad is already
heavily over-burdened cannot be accepted - Application of         G
CBI for transfer of trial from Ghaziabad to any other place is
dismissed- Penal Code, 1860- ss. 409, 420, 467, 468, 471,
477A and 120-B - Prevention of Corruption Act, 1988 - ss.

                             851                                  H
    852    SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.


A   8, 9, 13(2) rlw s. 13 (1) (d) and 14 - Delhi Special Police
    Establishment Act, 1946 - s. 6 - Scam - Ghaziabad Provident
    Fund Scam - Transfer Petition - Judiciary.

          s. 406(2) - Power of Supreme Court to transfer criminal
    trial - Exercise of - Factors to be kept in mind - Discussed.
B
      A.R. Antulay vs. R.S. Nayak and Anr. (1988) 2 SCC 602;
  Zahira Habibul/a H. Sheikh vs. State of Gujarat and Ors.
  (2004) 4 SCC 158; Maneka Sanjay Gandhi and Anr. vs. Rani
  Jethma/ani (1979) 4 SCC 167; Abdul Nazar Madani vs. State
C of T.N. and Anr. (2000) 6 SCC 204; K. Anbazhagan Vs.
  Superintendent of Police and Ors. (2004) 3 SCC 767; Captain
  Amarinder Singh vs. Parkash Singh Badal and Ors. (2009)
  6 SCC 260; R. Balakrishna Pillai vs. State of Kera/a (2000)
    7 sec 129 - referred to.
D
                          Case Law Reference:

          (1988) 2 sec 602         Referred to            Para 10

          (2004) 4 sec 158         Referred to            Para 18

E         (1979) 4 sec 167         Referred to            Para 19

          c2000) 6 sec 204         Referred to            Para 20

          c2004) 3 sec 767         Referred to            Para 21

          (2009) 6 sec 260         Referred to            Para 22
F
          (2000) 1 sec 129         Referred to            Para 23

        CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
    12981 of 2008.
G       From the Judgment & Order dated 19.03.2008 of the High
    Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
    12660 of 2008.

        G.E. Vahanvati, AG, Mukul Rohtagi, S.R. Singh, Shail Kr.
H   Dwivedi, AAG, K.C. Kaushik, Braj Kishore Mishra, Abhishek
 NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 853
                   ORS.

  Tadav, Vikram, Tanushree Sinha, Prashant Bhushan, Viplav            A
  Sharma (in-person), Chinmoy P. Sharma, T.A. Khan, A.K.
  Sharma, Anil Katiyar , B. Krishna Prasad, Gunnam
  Venkateswara Rao, Ashutosh Kumar Sharma, Vandana
  Mishra, Manoj Kumar Dwivedi, Ashok K. Srivastava, Diksha
  Rai, Shaiwal Srivastava, Sanjay Jain, Amit Kumar Sharma,            B
  E.C. Agrawala, Manoj Prasad, Sadashiv Gupta, Satendra
  Singh Kashyap, Rohit Singh, Ajay Srivatava, Krishna Kumar
  Srivastava, D.N. Dubey, Nishant Yadav, Avnish Singh, Yash Pal
  Dhingra, Sunita Pandit, Himanshu Tyagi, R.S. Yadav, Ujjawal
  Pandey, Asha G. Nair, Ritesh Agrawal, Piyush Sharma, E.G.           c
· Vidyasagar, Vishwajit Singh, Veera Kaul Singh, Siddharth
  Sengar, Abhindra Maaheshwari, Pankaj Singh for the
  appearing parties.

     lhe Order of the Court was delivered by
                                                                      D
      D.K. JAIN, J. 1. The short question raised by the Central
 Bureau of Investigation (for short "the CBI"), Anti Corruption
 Branch, Ghaziabad in their affidavit dated 15th July 2010, for
 our consideration is whether or not the trial arising out of the
 chargesheet filed by the CBI in Case RC-1 (A)/2008/CBl/ACB/          E
 Ghaziabad and the local police, Ghaziabad in Case Crime
 No.152/2008 PS Kavi Nagar, Ghaziabad deserves to be
 transferred from the Court of Special Judge, CBI at Ghaziabad
 to some other court of competent jurisdiction, preferably at
 Delhi under the jurisdiction of the High Court of Delhi, with a      F
 direction to the Trial Court to conduct the trial of the case on a
 day to day basis, and to complete it within a period of two years.

      2. Since the case, commonly known as "the Ghaziabad
 P.F. Scam", giving rise to the afore-stated prayer, involves
 violation of the standards of judicial behaviour, which is           G
 expected to be of the highest order, be it on or off the Bench,
 we feel concerned by the alleged events and have given our
 anxious consideration to the issue raised. In order to appreciate
 the controversy, a few material facts may be noticed. These are:
                                                                      H
    854   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A       Pursuant to and in furtherance of the findings of the
  Vigilance Department of the High Court of Judicature at
  Allahabad and subsequent authorisation given by the High
  Court, Case Crime No.152/2008 under Sections 409, 420,
  467, 468, 471, 477-A, 120-B of the Indian Penal Code, 1860
B (for short "the IPC") and Sections 8, 9, 13(2) read with Sections
  13( 1)( d) and 14 of the Prevention of Corruption Act, 1988 (for
  short "the Act") was registf;!red at PS Kavi Nagar, Ghaziabad
  on the written complaint of.Smt. Rama Jain, Special Judge and
  Vigilance Officer, District Court, Ghaziabad on 15th February
c 2008 against one late Ashutosh Asthana, the then Central Nazir,
  District Court, Ghaziabad and 82 other accused persons which
  included 13 Class-Ill employees, 30 Class-IV employees of
  District Court, Ghaziabad and 39 outsiders. It was alleged that
  late Ashutosh Asthana in collusion with other accused named
D in the FIR fraudulently withdrew huge sums of money in the
  name of GPF of Class-IV employees of District Court,
  Ghaziabad.

          Subsequently, the present special leave petition was filed
    with a request to transfer the investigation of Case Crime
E   No.152 of 2008, PS Kavi Nagar, Ghaziabad to the CBI. During
    pendency of the proceedings, Government of Uttar Pradesh
    issued a Notification dated 10th September 2008, under
    Section 6 of the Delhi Special Police Establishment Act, 1946
    (for short "the DSPE Act") for the transfer of above mentioned
F   case to the CBI, which was also placed before this Court for
    consideration. Vide order dated 23rd September 2008, this
    Court transferred the investigation in the said case to CBI, inter
    a/ia, observing that "It is made clear that though we have
    directed the matters to be listed after three months, the CBI,
G   shall be free to file the final report or chargesheet, as the case
    may be at an earlier point of time and to proceed thereafter in
    accordance with law. The court before which the final report or
    chargesheet is filed shall deal with the report or chargesheet,
    as the case may be, as required in law." In view of the aforesaid
H   order of this Court, the instant case was registered by the Anti
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 855
             ORS. [D.K. JAIN, J.]
Corruption Branch, CBI, Ghaziabad as Case RC-1 (A)/2008/             A
CBl/ACB/Ghaziabad against late Ashutosh Asthana and 82
other accused persons on 1st October 2008.

     3. The CBI filed periodical status reports in this Court with
regard to the progress made in the investigations from time to
                                                                     B
time. Ultimately, the final report was filed by the CBI on 30th
July ~010. According to the final report, the investigations had
revealed that during the period 2001-2008, late Ashutosh
Asthana while working as Bill Clerk and Central Nazir, District
Court, Ghazial:i>ad, by abusing his official position as public      C
servant entered into a criminal conspiracy with 6 District
Judges/lncharge District Judge and 71 others with the intent to
cheat the District Courts, Ghaziabad/Government of U.P.,
fraudulently and dishonestly withdrew over '6 Crores from the
District Treasury as GPF withdrawals, creating fake/forged
documents for withdrawing money in the name of GPF of Class-         D
IV employees using them as genuine, thereby causing a loss
of over '6 Crores to the Government Exchequer and
corresponding gains to themselves. According to the report, a
chargesheet under Section 120-B read with Sections 420, 467,
468 and 471 of the IPC and Section 13(2) read with Section           E
 13(1)(d) of the Act against accused persons, as named in the
chargesheet, has been filed in the Court of Special Judge, CBI,
Ghaziabad on 3rd July 2010.

     4. In the affidavit under consideration, filed by the CBI, it   F
is stated that there is an immediate need to transfer the trial of
the case to any other place outside the State of U.P., preferably
Delhi, for the following reasons:

     (i) Chargesheet has been filed against 6 former District
     Judges of Ghaziabad, 3 of whom were later elevated as           G
     Judges of the Allahabad High Court and 48 Class-Ill and
     Class-IV employees of District Court, Ghaziabad. All these
   . persons and their close associates have been working in
     the District Court, Ghaziabad for many years and have
     close contacts with various Judges and Magistrates, who         H
    856     SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A         remained posted in Ghaziabad and other Districts of U.P.;

          (ii) The Special Judge, CBI, in whose court, chargesheet
          has been filed, had also worked with/under some of the
          chargesheeted judicial officers in the past;
B         (iii) Smt. Rama Jain, former Special Judge, CBI,
          Ghaziabad is the complainant in the case and is currently
          serving as Additional District Judge, District Farrukhabad,
          U.P.;

c         (iv) 13 Judicial Officers and more than 25 employees of
          District Court, Ghaziabad have been cited as prosecution
          witnesses in the case, whose testimony would be crucial
          to establish the criminal cases against the chargesheeted
          accused persons.
D         (v) The court of Special Judge, CBI, Ghaziabad is already
          over-burdened with the trial of about 175 cases including
          the sensitive Nithari killings cases, which are being tried
          on a day to day basis on the directions of Allahabad High
          Court.
E
         5. Subsequently, another affidavit was filed by the CBI,
    pointing out certain subsequent developments, warranting
    transfer of the trial from Ghaziabad.

        6. Vide order dated 4th August 2010, notice was issued
F to all the accused named in the chargesheet to show cause as
  to why the trial should not be transferred from the Court of
  Special Judge, CBI at Ghaziabad to some other competent
  court, preferably under the jurisdiction of the Delhi High Court.
  In response, affidavits have been filed on behalf of accused
G Nos.1,4,5,6,8, 15, 19,20,55 and some other accused. All the
  named accused have objected to the transfer of the trial from
  Ghaziabad to any other place on diverse grounds.

          7. We have heard Mr. G.E. Vahanvati, learned Attorney
H
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 857
             ORS. [D.K. JAIN, J.]
General appearing for the CBI and learned counsel appearing            A
on behalf of the objectors - accused at some length.

      8. Mr. G.E. Vahanvati, learned Attorney General, submitted
that it is a settled principle that justice should not just be done,
but should also be seen as being done, and in view of the fact         8
that some of the named accused happen to be ex-judges/
administrative judges, there would be reasonable apprehension
in the mind of the public at large that the trial judge, being their
former colleague, may be biased in favour of the accused and,
therefore, the peculiar circumstances of the case warrant that         C
in the interests of justice the trial be shifted to a neutral venue.
Learned counsel further submitted that the paramount
consideration which should weigh with the Court while
considering an application for transfer is that public's faith in
the judiciary should be maintained, and given the gravity of the
allegations, in the present case. it would be expedient to             D
transfer the trial to a Special Judge in Delhi.

       9. Mr. Prashant Bhushan, learned counsel appearing on
behalf of the petitioners (in SLP (C) No. 12981 of 2008),
contended that mere inconvenience of the accused cannot be             E
the ground for rejecting the application for transfer, especially
in a case like the present one, where there is a serious
apprehension that the trial may not be free and fair because of
the past association between the accused, witnesses and the
trial judge.                                                           F

      10. Per contra, learned counsel appearing on behalf of
some of the accused contended that Section 406(2) of the
Code of Criminal Procedure, 1973 (for short "the Cr.P.C.")
provides that an application for transfer can be moved only by
an interested party, and therefore, the CBI which is the G
investigating agency cannot be said to be an interested party
within the meaning of the said provision and entitled to move
such an application for transfer of the trial. Commending us to
the decision of this Court in AR. Antulay Vs. R.S. Nayak &
                                                                H
    858     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A Anr. 1, learned counsel contended that the power to enlarge the
  jurisdiction of a Special Judge under Section 4 of the Act is
  legislative in nature, and therefore, an application under Section
  406 of the Cr.P.C. is misconceived. It was next contended that
  none of the named accused are holding a judicial office, and
B therefore, there is no reason to believe that they will influence
  the witnesses, especially when 13 witnesses are themselves
  judicial officers. It was argued that if the sole ground for transfer
  is the fact that the witnesses might be influenced because of
  the past status of some of the accused, the location of the trial
c has no bearing in that regard. It was stressed that transfer of
  trial would cause great hardship to the accused persons, as
  they would have to re-locate themselves to Delhi, far away from
  Lucknow or Allahabad, where they are residing after retirement
  and engage new counsel for their defence.
D       11. Mr. Vishwajit Singh, learned counsel, appearing for 34
  Class Ill and IV employees who have been named as accused,
  contended that the transfer of trial would cause immense
  hardship to the accused, who would not only have to travel long
  distances but will also have to engage expensive lawyers in
E Delhi. Learned counsel also contended that the CBI has not
  produced any evidence, much less credible material in support
  of its apprehension that there would be a miscarriage of justice
  if the trial is held at Ghaziabad.

F      12. Before adverting to the main issue, viz. whether it
  would be desirable to transfer the trial from Ghaziabad, we shall
  deal with the preliminary objection raised on behalf of some of
  the accused about the locus standi of the CBI in preferring the
  application for transfer of trial. In order to appreciate the
G contention of the objectors-accused persons, in relation to the
  capacity of the CBI to move an application for transfer of the
  instant case, it would be expedient to refer to Section 6 of the
  DSPE Act, which reads as:


H   1.   (1988) 2 sec 602.
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 859
             ORS. [D.K. JAIN, J.]
    "6. Consent of State Government to exercise of powers A
    and jurisdiction. Nothing contained in Section 5 shall be
    deemed to enable any member of the Delhi Special Police
    Establishment to exercise powers and jurisdiction in any
    area in a State, not being a Union Territory or Railway area,
    without the consent of the Government of that State."         8

      13. It is manifest that by operation of Section 6 of the
DSPE Act, once a State Government issues notification
transferring the investigation to the CBI, for all intents and
purposes, the CBI is entitled to exe.rcise the same powers as
the State police, in relation to the investigation transferred to it. C
As a necessary corollary, in light of the current structure and
status of the CBI, it is manifest that the CBI steps into and
assumes the role of the prosecuting agency for that particular
case.
                                                                     D
     14. Section 406(2) of the Cr.P.C. provides that the
Supreme Court may exercise power under sub-section (1)
thereof only on an application in that behalf by either the Attorney
General for India or the Advocate General of a State or a party
interested.                                                          E

     15. A criminal trial is a judicial examination of evidence with
the object of punishing the offenders on a proper proof of
relevant facts, the core question being the guilt or innocence of
the accused. Given the pivotal role accorded to the prosecuting
agency in a criminal trial, we are unable to hold that the CBI is F
not an interested party for the purposes of Section 406(2) of
the Cr.P.C.

     16. We are of the opinion that once a notification has been
issued by a State Government under Section 6 of the DSPE G
Act, the CBI assumes the role of an investigating agency and
as afore-stated the CBI is also invested with the role of the
prosecuting agency in relation to that particular case, and
therefore, it is entitled to move an application under Section
                                                                     H
    860     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   406(2) of the Cr.P.C. Accordingly, the preliminary objection is
    rejected.

         17. Reverting to the main issue, a true and fair trial is sine
    qua non of Article 21 of the Constitution, which declares that
    no person shall be deprived of his "life" or "personal liberty"
8
    except according to the procedure established by law. It needs
    no emphasis that a criminal trial, which may result in depriving
    a person of not only his personal liberty but also his life has to
    be unbiased, and without any prejudice for or against the
    accused. An impartial and uninfluenced trial is the fundamental
C   requirement of a fair trial, the first and the foremost imperative
    of the criminal justice delivery system. If a criminal trial is not
    free and fair, the criminal justice system would undoubtedly be
    at stake, eroding the confidence of a common man in the
    system, which would not augur well for the society at large.
D   Therefore, as and when it is shown that the public confidence
    in the fairness of a particular trial is likely to be seriously
    undermined, for any reason whatsoever, Section 406 of the
    Cr.P.C. empowers this Court to transfer any case or appeal
    from one High Court to another High Court or from one criminal
E   court subordinate to one High Court to another criminal court
    of equal or superior jurisdiction subordinate to another High
    Court; to meet the ends of justice. It is, however, the trite law
    that power under Section 406 of the Cr.P.C. has to be construed
    strictly and is to be exercised sparingly and with great
F   circumspection. It needs little emphasis that a prayer for transfer
    should be allowed only when there is a well-substantiated
    apprehension that justice will not be dispensed impartially,
    objectively and without any bias. In the absence of any material
    demonstrating such apprehension, this Court will not entertain
G   application for transfer of a trial, as any transfer of trial from one
    State to another implicitly reflects upon the credibility of not only
    the entire State judiciary but also the prosecuting agency, which
    would include the public prosecutors as well.

          18. In Zahira Habibu/la H. Sheikh Vs. State of Gujarat &
H
NAHAR SINGH YADAV & ANR. v. UNION OF !NOIA & 861
             ORS. [D.K. JAIN, J.]
Ors. 2, while explaining the import of the expression "fair trial",     A
this Court had observed that:

      "Fair trial obviously would mean a trial before an impartial
      judge, a fair prosecutor and atmosphere of judicial calm.
      Fair trial means a trial in which bias or prejudice for or
                                                                        8
      against the accused, the witnesses, or the cause which is
      being tried is eliminated. If the witnesses get threatened
      or are forced to give false evidence that also would not
      result in a fair trial. The failure to hear material witnesses
       is certainly denial of fair trial."
                                                                        c
     19. In Maneka Sanjay Gandhi & Anr. Vs. Rani
Jethmalani, 3 speaking for a bench of three learned Judges of
this Court, V.R. Krishna Iyer, J. said:

      "Assurance of a fair trial is the first imperative of the         0
      dispensation of justice and the central criterion for the court
      to consider when a motion for transfer is made is not the
      hypersensitivity or relative convenience of a party or easy
      availability of legal services or like mini-grievances.
      Something more substantial, more compelling, more                 E
      imperilling, from the point of view of public justice and its
      attendant environment, is necessitous if the Court is to
      exercise its power of transfer. This is the cardinal principle
      although the circumstances may be myriad and vary from
      case to case. We have to test the petitioner's grounds on
      this touchstone bearing in mind the rule that normally the        F
      complainant has the right to choose any court having
      jurisdiction and the accused cannot dictate where the case
      against him should be tried. Even so, the process of justice
      shouid not harass the parties and from that angle the court
      may weigh the circumstances."                                     G

      20. In Abdul Nazar Madani Vs. State of T.N. & Anr. 4 ,
2.   (2004) 4 sec 158.
3.   (1979) 4 sec 167.
4.   (2000) s sec 204.                                                  H
    862     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   dealing with a similar application, this Court had echoed the
    following views:

          'The apprehension of not getting a fair and impartial inquiry
          or trial is required to be reasonable and not imaginary,
          based upon conjectures and surmises. If it appears that
B
          the dispensation of criminal justice is not possible
          impartially and objectively and without any bias, before any
          court or even at any place, the appropriate court may
          transfer the case to another court where it feels that holding
          of fair and proper trial is conducive. No universal or hard
c         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. Convenience of the parties
          including the witnesses to be produced at the trial is also
          a relevant consideration for deciding the transfer petition.
D         The convenience of the parties does not necessarily mean
          the convenience of the petitioners alone who approached
          the court on misconceived notions of apprehension.
          Convenience for the purposes of transfer means the
          convenience of the prosecution, other accused, the
E         witnesses and the larger interest of the society."

          21. In K. Anbazhagan Vs. Superintendent of Police &
    Ors. 5, this Court had an occasion to deal with the prayer for
    transfer of a criminal trial from Tamil Nadu to another State
F   mainly on the ground of apprehension of political interference
    in the trial. While finally directing the transfer of the case to the
    State of Karnataka, the Court observed thus:

          "Free and fair trial is sine qua non of Article 21 of the
          Constitution. It is trite law that justice should not only be
G         done but it should be seen to have been done. If tlie
          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

H   s.   c2004) 3 sec 767.
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 863
             ORS. [D.K. JAIN, J.]
      and woe would be the rule of law. It is important to note       A
      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 mind of the petitioner."
                                                                      B
      22. Recently, in Captain Amarinder Singh Vs. Parkash
Singh Badal & Ors. 6 , while dealing with two transfer
applications preferred under Section 406 of the Cr.P.C. on the
ground that with the change in State Government, the trial was
suffering setback due to the influence of the new Chief Minister
as also the lack of interest by the Public Prosecutor, P.             C
Sathasivam, J., speaking for a three-judge Bench has observed
thus:

      "18. For a transfer of a criminal case, there must be a
      reasonable apprehension on the part of the party to a case      D
      that justice will not be done. It is one of the principles of
      administration of justice that justice should not only be
      done but it should be seen to be done. On the other hand,
      mere allegations that there is apprehension that justice will
      not be done in a given case does not suffice. In other          E
      words, the court has further to see whether the
      apprehension alleged is reasonable or not. The
      apprehension must not only be entertained but must
      appear to the court to be a reasonable apprehension.

      19. Assurance of a fair trial is the first imperative of the    F
      dispensation of justice. The purpose of the criminal trial
      is to dispense fair and impartial justice uninfluenced by
      extraneous considerations. When it is shown that the
      public confidence in the fairness of a trial would be
      seriously undermined, the aggrieved party can seek the          G
      transfer of a case within the State under Section 407 and
      anywhere in the country under Section 406 CrPC.

      20. However, the apprehension of not getting a fair and
6.   (2009) 6 sec 260.                                                H
    864     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A         impartial inquiry or trial is required to be reasonable and
          not imaginary. Free and fair trial is sine qua non of Article
          21 of the Constitution. If the criminal trial is not free and
          fair and if it is biased, judicial fairness and the criminal
          justice system would be at stake, shaking the confidence
B         of the public in the system. The apprehension must appear
          to the court to be a reasonable one."
                                             .
       23. In R. Balakrishna Pillai Vs. State of Kera/a, 7 while
  rejecting a prayer for transfer which was made on the ground
C that one of the Judges hearing the appeal had previously
  appeared as an advocate in a commission enquiring into an
  allegation of misconduct against the petitioner in another
  matter, this had Court observed as under:

          "The charges against him are altogether for a different
D         case not connected with the rectification work of
          Edamalayar Project. Secondly a Judge while practising
          as an advocate might have appeared in a number of
          cases, but that would not mean that he would have any
          personal interest or connection with the said matters or with
E         persons involved therein and would be biased towards
          them. Therefore, it would be difficult to presume or to draw
          an inference that the learned Judge, because of assisting
          the Commission of Inquiry as an advocate in a different
          matter, would have bias or prejudice against the petitioner
F         and would not render justice in accordance with law.
          Acceptance of such contention would seriously undermine
          the independence and stern stuff of the Judges."

        24. Thus, although no rigid and inflexible rule or test could
  be laid down to decide whether or not power under Section
G 406 of the Cr.P.C. should be exercised, it is manifest from a
  bare reading of sub-sections (2) and (3) of the said Section
  and on an analysis of the decisions of this Court that an order
  of transfer of trial is not to be passed as a matter of routine or

H   7.   c2000) 7 sec 129.
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 865
             ORS. [D.K. JAIN, J.]
merely because an interested party has expressed some                       A
apprehension about the proper conduct of a trial. This power
has to be exercised cautiously and in exceptional situations,
where it becomes necessary to do so to provide credibility to
the trial. Some of the broad factors which could be kept in mind
while considering an application for transfer of the trial are:-            B

     (i) when it appears that the State machinery or prosecution
     is acting hand in glove with the accused, and there is
     likelihood of miscarriage of justice due to the lackadaisical
     attitude of the prosecution;
                                                                            c
     (ii) when there is material to show that the accused may
     influence the prosecution witnesses or cause physical harm
     to the complainant;

     (iii) comparative inconvenience and hardships likely to be             o
     caused to the accused, the complainant/the prosecution
     and the witnesses, besides the burden to be borne by the
     State Exchequer in making payment of travelling and other
     expenses of the official and non-official witnesses;

     (iv) a communally surcharged atmosphere, indicating                    E
     some proof of inability of holding fair and impartial trial
     because of the accusations made and the nature of the
     crime committed by the accused; and

     (v) existence of some material from which it can be inferred           F
     that the some persons are so hostile that they are
     interfering or are likely to interfere either directly or indirectly
     with the course of justice.

     25. Having considered the rival claims of both the parties             G
on the touchstone of the afore-stated broad parameters, we are
of the view that the apprehension entertained by the CBI that
the trial of the case at Ghaziabad may not be fair, resulting in
miscarriage of justice, is misplaced and cannot be accepted.
From the material on record, we are unable to draw any
                                                                            H
    866   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A  inference of a reasonable apprehension of bias nor do we think
   that an apprehension based on a bald allegation that since the
   trial judge and some of the named accused had been close
   associates at some point of time and that some of the
   witnesses are judicial officers, the trial at Ghaziabad would be
B biased and not fair, undermining the confidence of the public
   in the system. While it is true that judges are human beings,
   not automatons but it is imperative for a judicial officer, in
   whatever capacity he may be functioning, that he must act with
   the. belief th.at he is not to be guided by any factor other than
c ,to ensure that he shall render a free and fair decision, which
   according to his conscience is the right one on the basis of
   materials placed before him. There is no exception to this
   imperative. Therefore, we are not disposed to believe that
   either the witnesses or the Special Judge will get influenced
0 in favour of the accused merely because some of them happen
   to be their former colleagues. As already ,stated, acceptance
   of such allegation, without something more substantial,
   seriously undermines the credibility and the independence of
   the entire judiciary of a State. Accordingly, we outrightly reject
E this ground urged in support of the prayer for transfer of trial
   from Ghaziabad.

        26. As regards the plea that the Court of Special Judge,
  CBI, Ghaziabad is already heavily over-burdened, in our
  opinion, that is again not a ground for transfer of trial. If at all
F the said Court is over burdened, it will be open to the High
  Court to request the State Government to create another Court
  of a Special Judge at Ghaziabad and we are confident that
  having regard to the nature of the case and the serious concern
  already shown by the State Government by issuing Notification
G dated 10th September 2008 promptly and expeditiously, the
  State Government will take appropriate steps in that behalf so
  that the guilty are brought to book at the earliest not only in this
  case but in other sensitive trials, stated to be pending in that
  Court, as well.
H
NAHAR SINGH YADAV & ANR. v. UNION OF INDIA & 867
             ORS. [D.K. JAIN, J.]
       27. For the afore-stated reasons, as at present, we do not A
find any merit in the request of the CBI for transfer of the trial
from Ghaziabad to any other place. Accordingly, the prayer is
declined. The Trial Court is directed to proceed with the case
expeditiously.
                                                                     B
N.J.                        Special Leave Petition dismissed.