Supreme Court of India
RAJESH TALWARversusC.B.I. & ORS.
- Citation
- 2012 INSC 127
- Decided
- 2 March 2012
- Disposal
- Dismissed
- Bench
- B S CHAUHANS KHEHAR
Holding
The transfer petitions are dismissed; the trial shall continue before the Special Judicial Magistrate (CBI) in Ghaziabad.
Summary
The murder of Aarushi Talwar and the subsequent killing of domestic help Hemraj led to a criminal trial before the Special Judicial Magistrate (CBI) in Ghaziabad. Dr. Rajesh Talwar and Dr. Nupur Talwar filed separate transfer petitions under Section 406 of the Code of Criminal Procedure, seeking to move the trial to Delhi on grounds of inconvenience, personal security after a knife attack on Dr. Talwar, and alleged bias of the presiding magistrate. The Supreme Court examined each ground, noting that a 52‑km travel distance does not constitute a sufficient inconvenience, that the assault was perpetrated by a mentally disturbed individual unrelated to the trial, and that adequate security measures had already been ordered. The Court also rejected the unsubstantiated claim of a pre‑determined mind of the trial court and dismissed a third ground that was not pressed during hearing. Consequently, the Court held that there was no well‑founded apprehension of a denial of a fair trial and dismissed the transfer petitions.
Issues considered
- The adequacy of inconvenience as a ground for transferring criminal proceedings under Section 406 CrPC.
- Whether a physical assault on an accused constitutes a threat to personal security sufficient to warrant transfer of the trial.
- Whether alleged bias or a pre‑determined mind of the trial court justifies transfer under Section 406 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 169, s. 205, s. 327, s. 406, s. 482
- Contempt of Courts Act, 1971
Subjects
Transfer of criminal proceedingsSection 406 CrPCInconveniencePersonal securityFair trialBiasCBIMurder caseSpecial Judicial Magistrate
Judgment
[2012] 4 S.C.R. 841
RAJESH TALWAR A
v.
C.B.I. & ORS.
(Transfer Petition (Crl.) No. 45 of 2012 etc.)
MARCH 02, 2012
B
[DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR,
JJ.)
Code of Criminal Procedure, 1973 - s. 406 - Transfer of
proceedings under - Petitioners seeking transfer of C
proceedings from the courl of the Special Judicial Magistrate
(CBI), Ghaziabad, U.P., to a courl of competent jurisdiction
in Delhi/New Delhi - Grounds of inconvenience of the
petitioner to travel long distance to parlicipate in the courl
proceedings; threatened personal security on account of o
physical assault on the petitioner at the hands of psychopath,
resulting in grievous injuries to him as a/so other grounds
raised - Held: Inconvenience of traveling a distance of merely
52 Kms. from Delhi to Ghaziabad would not be such as can
be the basis for seeking transfer - Jurisdiction of a courl to E
conduct criminal prosecution is based on the provisions of
Code of Criminal Procedure - Complainant or an accused
may have to travel across several States to reach the
jurisdictional courl - Witnesses a/so travel in order to depose
before the courl - If the plea of inconvenience is accepted, the F
provisions earmarking the courls having jurisdiction to try
cases would be rendered meaningless - As regards
threatened personal security, it is a/so not possible to accept
that the physical assault on the petitioner at the hands of a
psychopath can be a valid basis for transfer of the present
proceedings from Ghaziabad to Delhi/New Delhi - In view of G
the measures adopted by the Sessions Judge, the CBI and
the State Administration towards security arrangements in the
courl-premises generally, and a/so, the special arrangements
841 H
842 SUPREME COURT REPORTS [2012] 4 S.C.R.
A which the respondents have undertaken to make, with
particular reference to the petitioners, justice would be
dispensed to the petitioners in an atmosphere shorn of any
fear or favour - Order passed by the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. that during the proceedings
B no person shall be allowed to enter in the court room except
for the parties to the case and their respective counsel to be
enforced in letter and in spirit - In case of breach, the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate
steps including coercive measures if necessary, to enforce
c the same - The majesty of law must be maintained at all costs
- Based on certain insinuations against the presiding officer
of the trial court, the petitioners asserted that they were not
likely to get justice, as the concerned court was proceeding
in the matter with a pre-determined mmd - Said ground was
not pressed during the course of hearing - Even raising such
0
a ground in the pleadings can certainly be termed as most
irresponsible - Insinuations can also be stated to have been
aimed even at the High Court as the said order was also
challenged before the High Court but it failed - Petitioners are
E cautioned from making any irresponsible insinuations with
reference to court-proceedings - Proper course would be, to
assail before a superior court, any order which may not be to
the satisfaction of the petitioners, in accordance with law - The
further ground for transfer of case that they were prevented
from discharging their responsibility appropriately, are vague,
F and as such, cannot be the basis of a justifiable claim for
transfer of proceedings, uls. 406 - Neither the application nor
the affidavit disclose that the petitioner's counsel were
prevented from as also the identity of those responsible - It
cannot be concluded that the petitioners would be deprived
G of a free and fair trial at Ghaziabad - There is no we/1-
substantiated apprehension that justice would not be
dispensed to the petitioners impartially, objectively and
without any bias - The basis on which transfer of proceedings
was sought, being just speculative and unjustified
H
RAJESH TALWAR v. C.B.I. & ORS. 843
apprehensions based inter alia on vague and non-specific A
allegations stands dismissed - Transfer petition.
Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4
SCC 167; Zahira Habibulla H. Sheikh vs. State of Gujarat,
(2004) 4 SCC 158; Ravir Godbole vs. State of M.P. (2006) 9
SCC 786; Sri Jayendra Saraswathy Swamigal (II}, Tamil Nadu B
v. State of Tamil Nadu (2005) 8 SCC 771: 2005 (4 ) Suppl.
SCR 556; Central Bureau of Investigation (CBI) v. Hopeson
Ningshen (2010) 5 SCC 115: 2010 (5) SCR 666; Surendra
Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475:
2010 (11) SCR 909; Nahar Singh Yadav v Union of India C
(2011) 1 SCC 307; Vikas Kumar Roorkewal v. State of
Uttarakhand (2011) 2 SCC 178: 2011 (1 ) SCR 279; Jahid
Shaikh v. State of Gujarat (2011) 7 SCC 762; Bhairu Ram v.
Central Bureau of Investigation (2010) 7 SCC 799: 2010 (9 )
SCR 554; Jyoti Mishra v. Dhananjaya Mishra (2010) 8 SCC D
803: 2010 (10 ) SCR 229 - referred to.
Case Law Reference:
(1979) 4 sec 167 Referred to Para 6
(2004) 4 sec 158 Referred to Para 6 E
(2006) 9 sec 786 Referred to Para 6
2005 (4) Suppl. SCR 556 Referred to Para 13
2010 (5) SCR 666 Referred to Para 6, 13
F
2010 (11) SCR 909 Referred to Para 13
2011 (1) SCR 279 Referred to Para 13
(2011 > 1 sec 762 Referred to Para 13
2010 (9) SCR 554 Referred to Para 15 G
2010 (10) SCR 229 Referred to Para 15
CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) No. 45 of 2012 etc.
H
844 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Petition Under Section 406 of Code of Crl. Procedure.
WITH
T.P.(Crl.) No. 46 of 2012.
Mukul Rohatgi, Pinaki Mishra, R.N. Karanjawala, Sanjiv
B Sen, Manik Karanjawala, Sandeep Kapur, Shivek Trehan, Jai
Dehadrai (for Karanjawala & Co.), Praveen Rai, Avinash Kumar
for the Appellant.
H.P. Raval, ASG, Ratnakar Dash, Shail K. Dwivedi, AAG,
P. K. Dey, Padmalakshmi Nigam, Farukh Rasheed, Arvind
C Kumar Sharma, Rajeev, K. Dubey Kamlendra Mishra for the
Respondents.
The order of the Court was delivered
ORDER
D
1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no.
45 of 2012 and Dr. Mrs. Nupur Talwar has filed Transfer Petition
(Crl.) no. 46 of 2012. These petitions have been filed under
Section 406 of the Code of Criminal Procedure, 1973, praying
for the transfer of Special Case No. 01/2011 pending before
E the Court of the Special Judicial Magistrate (CBI) Ghaziabad,
U.P., to a Court of competent jurisdiction at Delhi/New Delhi.
Both these petitions are being disposed of by a common order,
because the prayers made are identical and are based on the
same grounds, arising out of the same factual background.
F
2. Before dealing with the grounds raised by the
petitioners, it is necessary to briefly record the sequence of
events leading to the filing of the instant transfer petitions. The
prosecution under reference pertains to the murder of Aarushi
G Talwar, daughter of the two petitioners, namely, Dr. Rajesh
Talwar and Dr. Mrs. Nupur Talwar, on the night intervening
15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got
a first information report registered at police station, Sector 20,
Naida, alleging that their domestic help Hemraj had committed
the murder of their daughter Aarushi Talwar. On the following
H day, i.e., on 17.5.2008, the body of Hemraj was also found on
RAJESH TALWAR v. C.B.I. & ORS. 845
the roof of the petitioners' residence. Hemraj had also been A
murdered. On 23.5.2008, Dr. Rajesh Talwar was arrested by
the State Police. On 24.5.2008, Dr. Rajesh Talwar was
produced before the Chief Judicial Magistrate, Gautam Buddh
Nagar. On 27.5.2008, the Chief Judicial Magistrate, granted
police custody of Dr. Rajesh Talwar till 30.5.2008. Even though B
the matter was originally investigated by the State Police, on
29.5.2008, investigation was transferred to the Central Bureau
of Investigation (hereinafter referred to as "the CBI"). The CBI
then recorded a separate first information report. On 30.5.2008,
Dr. Rajesh Talwar was sent to judicial custody. c
3. Having concluded the investigation, the CBI filed an
application (purported to be an application under Section 169
of the Code of Criminal Procedure), asserting lack of
incriminating evidence against Dr. Rajesh Talwar. In the
application it was also asserted, that further judicial custody of D
Dr. Rajesh Talwar was unnecessary. Accordingly, on 11. 7.2008,
the Special Judicial Magistrate (CBI) Ghaziabad, ordered the
release of Dr. Rajesh Talwar, on bail.
4. On 29.12.2010, a closure report was submitted by the
CBI before the Special Judicial Magistrate (CBI) Ghaziabad. E
It was contended therein, that sufficient evidence was not
available to prove the guilt of Dr. Rajesh Talwar, in the murder
of his daughter Aarushi Talwar. Accordingly, a prayer was made
for the closure of the case due to insufficient evidence. Since
Dr. Rajesh Talwar was the author of the first information report F
dated 16.5.2008, notice of the aforesaid application came to
be issued to him. On 25.1.2011, Dr. Rajesh Talwar filed a
detailed protest petition. By an order dated 9.2.2011, the
Special Judicial Magistrate (CBI) Ghaziabad, rejected the
prayer made by the CBI for closure of the case due to G
insufficient evidence. Simultaneously, the Magistrate
summoned Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face
trial under Section 302 read with Section 34 and Section 201
read with Section 34 of the Indian Penal Code. The summoning
order dated 9.2.2011 was assailed by the petitioners by filing H
846 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Criminal Revision no. 1127 of 2011 before the High Court of
Judicature at Allahabad. The aforesaid challenge made under
Section 482 of the Code of Criminal Procedure, was rejected
by the High Court on 18.3.2011. Dr. Rajesh Talwar assailed the
order passed by the High Court by filing Special Leave Petition
B (Crl.) No. 2981 of 2011, whereas, the said order was assailed
by Dr. Mrs. Nupur Talwar by filing Special Leave Petition (Crl.)
No. 2982 of 2011. The challenge raised by the petitioners was
declined by this Court vide an order dated 6.1.2012 (in Special
Leave Petition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur
C Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.)
No. 2981 of 2011 filed by Dr. Rajesh Talwar). The aforesaid
rejection order dated 9.1.2012 is being extracted hereinbelow:-
"We have heard learned counsel for the parties. It appears
that pursuant to the order of this Hon'ble Court in Criminal
D Appeal No. 68 of 2012 titled "Dr. Mrs. Nupur Talwar versus
C.B.I. Delhi & Anr.", whereby this Hon'ble Court upheld the
order dated 9.2.2011 of the Special Judicial Magistrate
(CBI), Ghaziabad in Special Case No. 01 of 2011
whereby cognizance was taken, the petitioner herein would
E appear before the Special Judicial Magistrate (CBI),
Ghaziabad on 4.2.2012 which, we understand, is the date
fixed for hearing.
It is also not in dispute that the petitioner Dr. Rajesh
Talwar is on bail since 2008 virtually by an order dated 11th
F July, 2008 and he also furnished bail bond pursuant to that
order. In that view of the matter, we direct the petitioner -
Dr. Rajesh Talwar to remain on bail. It is understood that
the petitioner has already deposited his passport and the
same is lying with the Court of the learned Magistrate. In
G the meantime, the petitioner shall not leave the local Police
Station without obtaining the permission of the learned
Magistrate.
With this order, the present Special Leave Petition
is disposed of. We make it clear that this order will not
H
RAJESH TALWAR v. C.B.I. & ORS. 847
prevent either of the parties from moving such application A
as they are entitled to in accordance with law."
5. The instant two transfer petitions seeking transfer of the
proceedings in Special Case No. 01/2011 from the Court of
Special Judicial Magistrate (CBI) Ghaziabad, to a Court of
competent jurisdiction at Delhi/New Delhi, have been B
separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar,
primarily on the grounds of convenience and personal security.
During the course of hearing, learned counsel for the petitioners
raised the following contentions on the issue of convenience:-
(i) It was submitted, that after the murder of Aarushi C
Talwar on the night intervening 15.5.2008 and
16.5.2008, for the petitioners to reside in the same
premises where the murder of their daughter had
been committed, had become impossible.
Consequently, they had shifted their residence from D
Neida to New Delhi. As such, it was submitted that
it would be more convenient for the petitioners to
face trial in Delhi/New Delhi rather than at
Ghaziabad.
E
(ii) Ghaziabad, it was pointed out, was farther away
from Neida (where the murder was committed) than
New Delhi. In this behalf, it was submitted, that
distance between Neida and Ghaziabad is 35
kms., whereas, the distance between Neida and
New Delhi is only 17 kms. Based on the traffic F
situation between Delhi and Ghaziabad, it was
submitted, that the petitioners would have to
undertake several hours of travel time to attend
Court proceedings on each date of hearing. This
inconvenience could be avoided if the proceedings G
in question were transferred from Ghaziabad to
Delhi/New Delhi.
(iii) It was pointed out, that since the first information
report was lodged by the CBI at New Delhi itself,
H
848 SUPREME COURT REPORTS [2012] 4 S.C.R.
A there would be no difficulty in proceeding with the
case at Delhi itself.
(iv) It was also contended, that holding trial before a
Court of competent jurisdiction at Delhi/New Delhi
would also be a matter of convenience to the
B prosecuting agency, inasmuch as, the counsel, as
also the officials/officers of the CBI were Delhi/New
Delhi based, and they too would not have to travel
to Ghaziabad on each date of hearing.
(v) Lastly, it was asserted, that a large number of
c witnesses would also have to be summoned from
outside U.P. It was also pointed out, that these
witnesses would have to unnecessarily travel to
Ghaziabad. Just like the petitioners, all outside
witnesses would likewise face avoidable
D inconvenience, if the prayer made in the instant
petition is accepted.
6. On the issue of personal security, learned counsel for
the petitioners contended, that when the petitioners had gone
E to attend court proceedings at Ghaziabad on 25.1.2011, and
whilst they were physically inside the court premises alongwith
their lawyers, Dr. Rajesh Talwar faced a vicious attack at the
hands of one Utsav Sharma, with a cleaver knife. It was
submitted, that Dr. Rajesh Talwar suffered grievous injuries and
was rushed to undergo several reconstructive surgeries in the
F intensive care unit of the lndraprastha Apollo Hospital, New
Delhi. While explaining the assault, it was pointed out, that Dr.
Rajesh Talwar was given three blows with the meat cleaver
causing a grevious injury on the right side of his forehead, which
also resulted in the rupture of a major artery, and also, serious
G injuries on both of his hands. It was also alleged, that Dr. Rajesh
Talwar was rendered handicapped as a result of the injuries
inflicted upon him by Utsav Sharma, for more than two months.
It was pointed out, that a first information report was registered
by Dr. Dinesh Talwar (brother of Dr. Rajesh Talwar) at police
H station Kavi Nagar, Ghaziabad on 25.1.2011, in connection
RAJESH TALWAR v. C.B.I. & ORS. 849
with the aforesaid assault. The aforesaid encounter within the A
court premises, according to learned counsel for the petitioners,
has completely shaken the confidence of the petitioners. The
petitioners are stated to be under deep fear of attending court-
proceedings at Ghaziabad after the said assault. Relying on
the judgment rendered by this Court in Maneka Sanjay Gandhi B
Vs. Rani Jethmalani, (1979) 4 sec 167, it was asserted, that
this Court had authoritatively held, that the safety of the person
of an accused (as also, the complainant) is an essential
condition for participation in a criminal trial. Where safety itself
is put in peril by commotion, tumult or threat on account of c
pathological conditions prevalent in a particular venue, it was
submitted, a request as the one in the instant case, for transfer
of proceedings should be acceded to. Insofar as the present
case is concerned, it was submitted on behalf of the petitioners,
that the circumstances in the present case have gone far 0
beyond the possibility of a physical assault, inasmuch as, a
brutal physical attack has actually been made on Dr. Rajesh
Talwar (on 25.1.2011 ). Relying on the judgment rendered by this
Court in Zahira Habibul/a H. Sheikh Vs. State of Gujarat,
(2004) 4 sec 158, it was contended, that justice should not E
only be done but it should be seen to be done. It was pointed
out, that where circumstances are such that render holding of
a fair and impartial trial, uninfluenced by extraneous
considerations impossible, an apprehension expressed by an
individual seeking transfer, should be accepted as reasonable.
Inviting the Court's attention to the incident of 25.1.2011, it was F
submitted, that there could be no doubt, that in the
circumstances prevalent in the courts at Ghaziabad, the
apprehension expressed by the petitioners, that they are
unlikely to be subjected to a fair and impartial trial, uninfluenced
by extraneous considerations, is not unreal. Relying on the G
judgment rendered by this Court in Central Bureau of
Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC
115, it was submitted, that in a case wherein the CBI itself felt
that there was a real danger of the accused being physically
attacked during the course of the trial, this Court came to be H
850 SUPREME COURT REPORTS [2012] 4 S.C.R.
A approached (by the CBI) for transfer of the venue of prosecution.
The prayer made by the CBI was acceded to by this Court by
observing, that there could be no quarrel, that there was a real
possibility of a physical attack on the respondent-accused so
long as he was at Manipur. Yet again, it is emphasized by the
B learned counsel appearing on behalf of the petitioners, that the
present case stands on a far better footing, inasmuch as, a
factual assault resulting in serious injuries has actually been
suffered by Dr. Rajesh Talwar within the court premises at
Ghaziabad. It is, therefore, contended, that the fear in the minds
c of the petitioners, is not imaginary. The fear in the minds of the
petitioners, is very real and bonafide. In order to support the
prayer of the petitioners on the facts delineated hereinabove,
learned counsel for the petitioners placed reliance on the
judgment rendered by this Court in Ravir Godbole Vs. State
of M.P., (2006) 9 sec 786. The order relied upon by the
0
petitioners is being extracted hereinbelow:-
"1. We have heard counsel for the parties.
2. The petitioner is being tried of an offence
punishable under Section 307 IPC. The trial was to
E take place at Indore but, in view of the fact that the
rival gang has been after his blood and two
attempts were made on his life, the High Court
transferred his triai to Bhopal. It appears that even
during the trial at Bhopal he was attacked a third
F time and serious injuries were caused to him
which necessitated his being admitted to the
hospital and an operation being performed to
repair his damaged liver.
3. In these circumstances, the petitioner has prayed
G
that his case may be transferred to any court
outside the State of M. P. Counsel for the State
does not dispute the fact that the petitioner has
been attacked thrice during this period and he
does face danger to his life. Of course, the State
H contends that it will provide him with protection such
RAJESH TALWAR v. C.B.I. & ORS. 851
as is considered necessary. We notice that a A
gunman was deputed to provide security to the
petitioner but despite that he was attacked a third
time causing him serious injuries, and the gunman
deputed to protect him could do nothing except to
make himself scarce. B
4. In these facts and circumstances, we transfer
Sessions Trial No. 65 of 2004 pending before the
Special Court (Atrocities}, Bhopal Sessions Court,
Bhopal to the Court of the District and Sessions
Judge, Nasik who may try the case himself or C
assign the trial to a court of competent jurisdiction.
The record of the case shall be immediately
transmitted by the Bhopal Sessions Court to the
Court of the District and Sessions Judge, Nasik.
5. This transfer petition is allowed." D
(emphasis is ours)
7. It would be relevant to notice, that in the pleadings of
the two transfer petitions, the petitioners have raised a third
ground (besides those of convenience and personal security, E
referred to in the foregoing paragraphs). No submissions were
addressed in connection therewith during the course of hearing.
Reference to the third ground has been made in this order only
because it was pointed out by the learned counsel representing
the CBI, that the petitioners had alleged, that they were not likely F
to get justice, as it appeared to them, that the Ghaziabad court
was proceeding with the matter with a pre-determined mind.
The cause of the petitioners instant impression (as per the
pleadings), emerges from an application filed by Dr. Rajesh
Talwar on 28.2.2011 under Section 205 of the Code of Criminal G
Procedure. In the aforesaid application, Dr. Rajesh Talwar had
sought exemption from personal appearance, on the ground
that he had suffered a physical assault in the court premises
on 25.1.2011, and had been advised bed rest. The Special
Judicial Magistrate (CBI) Ghaziabad, had rejected the
H
852 SUPREME COURT REPORTS [2012] 4 S.C.R.
A application for exemption, and issued bailable warrants against
Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is
concerned, she too had sought exemption from personal
appearance on the ground, that she had to file an affidavit at
Allahabad in a criminal revision petition, to assail the
B summoning order dated 9.2.2011 (refer to paragraph 4 above).
It is submitted, that the application filed by Dr. Mrs. Nupur Talwar
was also declined. In the order dated 28.2.2011 the Special
Judicial Magistrate (CBI) Ghaziabad, ordered issuance of
bailable warrants against the petitioners. From the aforesaid
C determination, it was sought to be inferred, that the petitioners
were not likely to get justice, as the Ghaziabad Court was
proceeding with the matter with a pre-determined mind.
8. During the course of hearing, another ground was also
canvassed on behalf of the petitioners, although no mention
D thereof had been made in the pleadings of the two transfer
petitions. During the course of hearing, our attention was invited
by the learned counsel appearing on behalf of the petitioners,
to an affidavit dated 24.2.2012 filed by Shri Praveen Kumar
Rai, Advocate. The said Shri Praveen Kumar Rai, in his
E affidavit, interalia deposed, that on 25.1.2011, the Special
Judicial Magistrate (CBI) Ghaziabad, had noticed the sensitivity
of the case and had, by invoking the court's inherent power
under Section 327 of the Code of Criminal Procedure, directed,
that no person would be allowed to enter the court-room except
F the parties to the case or their respective counsel; yet during
the course of hearing on 4.2.2012, a rot of media-persons and
advocates unrelated to the case, were present inside the court-
room. While dilating on the court proceedings conducted on
4.2.2012, without disclosing the identity of any particular
counsel/advocate, it was averred in paragraphs 5 and 6 (of the
G affidavit dated 24.2.2012) as under:-
"5. That one of the advocates, who on earlier occasion
has been rebuked by the Ld. Magistrate and certain
strictures have also been passed against him as
H well, was also present in the Court room. It is
RAJESH TALWAR v. C.B.I. & ORS. 853
pertinent to mention here that on 7 .1.2011 the said A
counsel had filed an application and thereafter
during the course of arguments on the said
application misbehaved with the Court and others
therein. The Ld. Magistrate in her order dated
21.1.2011 while dismissing the application B
disapproved the behaviour of the counsel and
passed strictures after warning him for future.
However, the said warning and strictures have not
affected him at all. He not only interfered in the
case, but also attempted to stop the counsels for C
the petitioner herein from advancing their
submissions. The deponent immediately brought
this to the notice of the Ld. Magistrate but to no
avail and the interruptions continued in the
proceedings. It is germane to state that the o
concerned advocate does not represent either the
prosecution or the accused person~ and thus, no
privilege of hearing can be extended to the
concerned advocate. A true translated copy of the
order dated 21.1.2011 is annexed herewith and E
marked as Annexure A-2.
6. That faced with such a perilous situation the
counsels did not have any option but to file an
application before the Ld. Magistrate for taking
appropriate actions and passing necessary F
directions in the matter. The said application is still
pending. A photocopy of certified copy of the said
application dated 4.2.2012 is annexed herewith
and marked as Annexure A-3."
It is also necessary to extract hereunder the application dated G
4.2.2012 (appended as Annexure A-3 to the affidavit dated
24.2.2012) of Shri Praveen Kumar Rai, counsel for Dr. Mrs.
Nupur Talwar:-
H
854 SUPREME COURT REPORTS [2012] 4 S.C.R.
A "Sir,
It is most respectfully submitted that in the above noted
case the applicants counsels appear before the Hon'ble
Court today to move application in the light of order passed
by Hon'ble Supreme Court in Transfer Petition. The
B
counsel for applicants were restrained by some other
Advocates who have no concern with the case during the
course of their submission. This happened even when, the
order passed by Hon'ble Court dated 25.1.2011 U/s 327
Cr.P.C. is still in force.
c
It is, therefore, most humbly prayed that in the above
said reason and in the interest of justice Hon'ble Court may
kindly restrained the persons and advocates who have no
concerned in the case by entering in the Court room during
D the hearing of the case."
Based on the aforesaid factual position it is contended that the
petitioners have strong reservations whether unimpaired
proceedings are at all possible in the case in hand. It is
therefore contended, that it would be in the fitness of the matter,
E to transfer proceedings in the case, from Ghaziabad to Delhi/
New Delhi
9. We have recorded hereinabove the four different
grounds under which the petitioners have sought to press their
claim for transfer of the proceedings pending before the court
F of the Special Judicial Magistrate (CBI), Ghaziabad, U.P., to a
court of competent jurisdiction at Delhi/New Delhi. It would be
appropriate and in the fitness of matters to first record the
response of the learned Senior Counsel representing the CBI
to each of the issues. The submissions of the learned counsel
G representing the respondents are therefore being summarized
hereinafter:-
10. As noticed in paragraph 5 hereinabove, the foremost
contention seeking transfer of proceedings from Ghaziabad to
Delhi/New Delhi is based on the inconvenience of the
H petitioners to travel from New Delhi to Ghaziabad on each date
RAJESH TALWAR v. C.B.I. & ORS. 855
of hearing. In so far as the instant aspect of the matter is A
concerned, it was the contention of the learned counsel for the
respondents, that shifting of the residence of an accused cannot
be a valid justification for seeking transfer, nor is the place
where the first information report was registered by the CBI
relevant for the said purpose. It is submitted that the identity of B
the jurisdictional court is determined on the basis of the
provisions of the Code of Criminal Procedure, wherein
residence of the accused and the place of registration of the
first information report are inconsequential. In so far as the
inconvenience alleged by the petitioners to travel to Ghaziabad c
is concerned, it was brought to our notice that 72 of the witness
likely to be produced during the course of the prosecution under
reference, are located in the State of Uttar Pradesh, whereas,
61 witnesses are from Delhi or from outside U.P. Of the
aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are D
employees of the Central Forensic Science Laboratory or the
All India Institute of Medical Sciences, New Delhi; 6 witnesses
are from telephone companies, 20 witnesses have been
examined earlier out of which some are relations of the
petitioners themselves; and of the remaining two witnesses one E
is from Punjab and the other is from Haryana. It is also
submitted, that none of the 61 witnesses, to be produced from
Delhi or from outside U.P., have expressed inconvenience to
depose before the Special Judicial Magistrate (CBI),
Ghaziabad, U.P. It is contended, that the distance between F
Naida and Ghaziabad, as also, between Naida and Delhi
depicted in the submissions advanced by the learned counsel
for the petitioners are irrelevant. It is submitted, that the issue
of jurisdiction is never determined on the basis of distance(s),
but is based on the territorial jurisdiction of the court within
which an offence has been committed. It is submitted that Dr. G
Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending
court proceedings at Ghaziabad since 2008, i.e., for the last
about three years. It is pointed out, that neither of the petitioners
ever expressed inconvenience to participate in the court
proceedings at Ghaziabad hitherto before. However, all these H
856 SUPREME COURT REPORTS [2012] 4 S.C.R
A pleas are being raised only after the Special Judicial
Magistrate (CBI), Ghaziabad, U.P., by his/her order dated
9.2.2011 had summoned the petitioners to face trial under
Section 302 read with Section 34 of the Indian Penal Code,
and Section 201 read with Section 34 of the Indian Penal Code,
B in connection with the murder of Arushi Talwar. It is accordingly
submitted that the plea raised by the petitioners for transfer of
proceedings on the basis of inconvenience, is wholly trumped
up and ought to be rejected.
11. In so far as the second issue canvassed at the hands
C of the petitioners on the ground of personal security is
concerned (see paragraph 6 hereinabove), learned Senior
Counsel representing the respondents invited our attention to
the counter affidavit filed on behalf of the respondent-CBI,
wherein, while repudiating the contention advanced at the hands
D of the petitioners, it has been pointed out that the attack on Dr.
Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011
was at the hands of a psychologically disturbed person hailing
from Varanasi, who had come to Ghaziabad from Ahmedabad
(in Gujarat). It is therefore the contention of the learned counsel
E for the respondents, that the attack was not aimed at interfering
with the petitioners right to defend themselves, but because of
mental imbalance of the attacker. It is submitted, that the same
person Utsav Sharma had also attacked DGP Rathore in a
court-premises at Chandigarh, prior to having attacked Dr.
F Rajesh Talwar. It is therefore contended, that the physical attack
on Dr. Rajesh Talwar was certainly not aimed at disrupting court-
proceedings or interfering with the defence of the petitioners.
As such, it is submitted that the aforesaid stray incident cannot
be a justifiable basis for seeking transfer of proceedings under
G Section 406 Cr.P.C. from the court of the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. to some other court of
competent jurisdiction in Delhi/New Delhi. Learned counsel
representing the respondents also pointed out, from the counter
affidavit filed by the CBI, that the Sessions Judge, Ghaziabad
H had personally reviewed the security arrangements in the entire
RAJESH TALWAR v. C.B.I. & ORS. 857
court-premises at Ghaziabad, whereupon, security/police A
personnel have been deployed to prevent any similar untoward
incident in future. It was also brought to our notice, from the
counter affidavit filed by the CBI, that the venue of the
proceedings relating to the petitioners, has been shifted to a
new building, which has a proper boundary wall on all sides, B
with only one small entrance. The counter affidavit also records
an assurance, that as and when the case of the petitioners will
be fixed for hearing, proper police force will be deployed by
the local administration, to ensure safety and security of the
petitioners. It is therefore the contention of the learned Senior c
Counsel representing the CBI, duly supported by the learned
counsel for the State of Uttar Pradesh, that all possible care
will be taken, for the safety and welfare of the petitioners.
12. Even though learned counsel representing the
petitioners did not canvass the third ground (see paragraph 7 D
hereinabove) during the course of hearing, yet learned counsel
for the respondents had expressly drawn our attention to the
same. The purpose of inviting our attention to the third ground
was to demonstrate, that the petitioners have not even spared
the presiding officer of the court. The petitioners have cast E
aspersions on the court itself. It has been averred in the
pleadings, that the petitioners are not likely to get justice from
the Ghaziabad court, because the Special Judicial Magistrate
(CBI), Ghaziabad, U.P. by his/her order dated 28.2.2011 had
declined the prayer made by the petitioners for exempting them F
from personal appearance, and since the petitioners had not
appeared on 28.2.2011, the court had issued bailable warrants
against the petitioners. This, according to the learned Senior
Counsel representing the respondents, can never constitute a
valid basis for drawing any inference against a court, specially G
when the challenge raised by the petitioners in assailing the
order dated 28.2.2011 (declining exemption from personal
appearance, and ordering issuance of bailable warrants),
before the High Court of Judicature at Allahabad was rejected.
In fact, it is the contention of the learned Senior Counsel for the H
858 SUPREME COURT REPORTS (2012] 4 S.C.R.
A respondents, that the insinuation levelled on behalf of the
petitioners is contemptuous in nature, and calls for initiation of
proceedings against the petitioners under the Contempt of
Courts Act, 1971. Based on all the submissions recorded
hereinabove, it was the contention of the learned counsel for
B the respondents, that even the third ground raised by the
petitioners for seeking transfer of proceedings under Section
406 of the Code of Criminal Procedure, cannot be accepted.
13. In so far as the last contention is concerned (see
paragraph 8 hereinabove), the same was based on the affidavit
C of Shri Praveen Kumar Rai, Advocate, dated 24.2.2012. It was
submitted at the hands of the learned counsel for the
respondents, that there was no occasion for the respondents
to repudiate the same, as the factual position depicted therein
does not emerge from the pleadings of the transfer petitions
D filed by the two petitioners. It is therefore the contention of the
learned counsel for the respondents, that the petitioners should
not be permitted to press the instant ground for seeking transfer.
Be that as it may, it is further the contention of the learned
Senior Counsel representing the respondents, that the
E allegations contained in the affidavit dated 24.2.2012 are vague,
as the identity of the counsel who attempted to stop the counsel
representing the petitioners from advancing their submission,
has not been disclosed. In the application allegedly filed on
4.2.2012 (appended as Annexure A-3, with the affidavit dated
F 24.2.2012) also, the identity of the counsel who restrained the
counsel representing the petitioners, from making his
submissions has also not been disclosed. Accordingly, it is
asserted that the allegations made in the last submission being
vague cannot be relied upon to accept the prayer of the
G petitioners for transfer of proceedings under Section 406 of the
Code of Criminal Procedure.
14. We have noticed hereinabove the grounds of challenge
canvassed at the hands of the learned counsel for the
petitioners, as also, the response thereto at the hands of the
H learned counsel representing the respondents. In so far as the
RAJESH TALWAR v. C.B.I. & ORS. 859
issue of transfer of criminal proceedings from one court to A
another under Section 406 of the Code of Criminal Procedure
is concerned, it would be in the fitness of matters to examine
the parameters laid down by this Court for transfer of
proceedings. In this behalf reference may, first of all, be made
to the decision rendered in Sri Jayendra Saraswathy Swamigal B
(//), Tamil Nadu v. State of Tamil Nadu, (2005) 8 SCC 771,
wherein in paragraph 5, this court recorded the grounds on
which transfer was sought and thereafter, recorded its own
determination in paragraph 23. Accordingly, paragraphs 5 and
23 of the judgment are being extracted hereunder: C
"5. The transfer of the case has been sought on several
grounds and basically speaking they are as under:
(1) The State machinery in Tamil Nadu and specially the
Special Investigation Team headed by Shri Prem Kumar, 0
Superintendent of Police, has shown great zeal and has
made extraordinary efforts, much beyond what is required
under the law to anyhow secure the conviction of the
accused and to achieve that object has procured and
fabricated false evidence.
E
(i1) The Chief Minister of the State of Tamil Nadu, who is
also holding the Home portfolio, has made statements on
the floor of the House that the petitioner and the other co-
a ccu sed are actually involved in the murder of
Sankararaman and has also given some press statements F
and has thereby pre-empted a fair decision in the criminal
trial, as statements of persons holding such high offices
and specially those made on the floor of the House, are
generally believed to be correct and thus the accused
stand condemned even before the commencement of the G
trial.
(iii) A solatium of Rs 5 lakhs was paid by the Chief Minister
of Tamil Nadu to Padma Sankararaman (widow of
deceased Sankararaman) on 24-11-2004, long before
completion of investigation and submission of charge- H
860 SUPREME COURT REPORTS [2012] 4 S.C.R.
A sheet, and this was given wide publicity in the electronic
media and newspapers, etc., which shows that the State
Government is taking special interest in the case and is
too keen to secure conviction of the accused in order to
justify the stand taken by it.
B
(iv) Concocted and false cases have been registered
against 16 co-accused. Even before their bail applications
in the present case could be heard, detention orders were
passed against them under the Tamil Nadu Prevention of
Dangerous Activities of Bootleggers, Drug Offenders,
c Forest Offenders, Goondas, Immoral Traffic Offenders,
Slum Grabbers and Video Pirates Act, 1982 (for short "the
Goondas Act") between 16-1-2005 and 6-2-2005 so that
even after grant of bail by the Court they may remain in
custody.
D
(v) The advocates appearing for the petitioner and other
co-accused have been put under great threat on account
of lodging of false and fabricated criminal cases against
them and a situation has been created wherein they may
not be in a position to defend the accused properly. This
E
will also have a general effect as other lawyers would feel
hesitant to conduct the case on behalf of the accused.
(v1) The Mutt and other associated and connected trusts
have 183 accounts in banks, which were all frozen by SIT
F resulting in paralysing the religious and other activities of
the Mutt and other connected bodies.
(vii) Criminal cases have been lodged against some
leading journalists of the country and other prominent
personalities, who had written articles criticising the arrest
G of the petitioner, which not only violates right of free speech
but also creates an atmosphere of threat against anyone
daring to speak or write in favour of the accused and thus
the accused seriously apprehend that they would not get
a fair trial in the State of Tamil Nadu.
H
RAJESH TALWAR v. C.B.I. & ORS. 861
(viii) Shri Prem Kumar, who is heading the Special A
Investigation Team, is not a fair and upright officer and
superior courts have passed strictures against him several
times in the past for his uncalled-for actions in going out
of the way to implicate innocent persons in criminal cases.
23. We have discussed above many facets of the case 8
which do show that the State machinery in Tamil Nadu
is not only taking an undue interest but is going to any
extent in securing the conviction of the accused by any
means and to stifle even publication of any article or
expression of dissent in the media or press, interview by C
journalists or persons who have held high positions in
public life and are wholly unconnected with the criminal
case. The affidavits and the documents placed on record
conclusively establish that a serious attempt has been
made by the State machinery to launch criminal D
prosecution against lawyers, who may be even remotely
connected with the defence of the accused. The
Superintendent of Police, SIT and the Police Inspector
connected with the investigation even went to the extent
of prompting the approver Ravi Subramaniam to make E
insinuation against a very Senior Counsel, who has been
practising for over 43 years and is appearing as counsel
for the petitioner. The other counsel had to file writ petitions
in the Madras High Court for seeking a direction for
transferring investigation of the criminal cases registered F
against them from the local police to CBI. The police
submitted charge-sheet against two junior lady lawyers
under various sections of /PC including Section 201 /PC
when even accepting every word in the FIR lodged by
Smt Chitra, wife of Ravi Subramaniam (approver) as G
correct, no offence under the said provision is made out.
Clause (1) of Article 22, which finds place in Part Ill of the
Constitution dealing with fundamental rights, gives a
guarantee to a person arrested and detained to be
defended by a legal practitioner of his choice. Section 303 H
862 SUPREME COURT REPORTS [2012] 4 S.C.R.
A of the Code of Criminal Procedure says that any person
accused of an offence before a criminal court or against
whom proceedings are instituted under the Code, may of
right be defended by a pleader of his choice. Even under
the British rule when the Code of Criminal Procedure, 1898
B was enacted, Section 340(1) thereof gave a similar right
to an accused. It is elementary that if a lawyer whom the
accused has engaged for his defence is put under a
threat of criminal prosecution, he can hardly discharge
his professional duty of defending his client in a fearless
c manner. A senior and respected counsel is bound to get
unnerved if an insinuation is made against him in court
that he approached the wife of a witness for not giving
evidence against the accused in the court. From the
material placed before us we are prima facie satisfied that
D a situation has arisen in the present case wherein the
lawyers engaged by the petitioner and other co-accused
cannot perform their professional duty in a proper and
dignified manner on account of various hurdles created
by the State machinery. The lawyers would be more
concerned with shielding their own reputation or their
E
liberty rather than cross-examining the prosecution
witnesses for eliciting the truth. The constant fear of not
causing any annoyance to the prosecution witnesses
specially those of the Police Department would loom large
over their mind vitally affecting the defence of the accused.
F Passing of the detention order against 16 co-accused
soon after grant of bail to the petitioner by this Court on
10-1-2005, which order could be of some support in
seeking parity or otherwise for securing bail in the
present murder case, is a clear pointer to the fact that the
G State wanted to deprive them of any chance to secure
release from custody. Even though this Court has issued
notice on the special leave petition filed by the State
against the order of the High Court by which habeas
corpus petition of the 16 co-accused was allowed, yet the
H observations made in the said order show in unmistakable
RAJESH TALWAR v. C.B.I. & ORS. 863
terms that the even tempo of life was not disturbea, nor A
was public order affected by the murder of Sankararaman
and the detention order was passed without any basis.
Again, the action of the State in directing the banks to
freeze all the 183 accounts of the Mutt in the purported
exercise of the power conferred under Section 102 CrPC, B
which had affected the entire activities of the Mutt and
other associated trusts and endowments only on the
ground that the petitioner, who is the head of the Mutt,
has been charge-sheeted for entering into a conspiracy
to murder Sankararaman, leads to an inference that the c
State machinery is not only interested in securing
conviction of the petitioner and the other co-accused but
a/so to bring to a complete halt the entire religious and
other activities of the various trusts and endowments and
the performance of pooja and other rituals in the temples
0
and religious places in accordance with the custom and
traditions and thereby create a fear psychosis in the
minds of the people. This may deter anyone from
appearing in court and give evidence in defence of the
accused. Launching of prosecution against prominent
persons who have held high political offices and prominent E
journalists merely because they expressed some dissent
against the arrest of the petitioner shows the attitude of the
State that it cannot tolerate any kind of dissent, which is
the most cherished right in a democracy guaranteed by
Article 19 of the Constitution." F
(emphasis is ours)
Reference may also be made to the decision rendered by this
Court in Central Bureau of Investigation (CBI) v. Hopeson
Ningshen, (2010) 5 SCC 115, wherein this Court recorded its G
conclusion in the following paragraphs:
"18. CBI in its capacity as the investigating agency has
clearly conveyed the risks associated with conducting the
trial in Manipur. Even if one were to concede that the
apprehension about social unrest and communal tension H
864 SUPREME COURT REPORTS [2012] 4 S.C.R.
A between the Meteies and the Nagas were a little
exaggerated, there can be no quarrel that there exists a
real possibility of a physical attack on the respondent-
accused as long as he is in Manipur. It was precisely
because of this consideration that the respondent-
B accused is being held in custody at a distant location in
Delhi. Furthermore, conducting the trial in Manipur could
also reasonably lead to more friction in the State of
Manipur which in turn could affect the trial proceedings
themselves.
c 19. We must especially take note of the fact that the killings
took place in a region where opinions are sharply divided
on the justness of the causes espoused by NSCN(IM) and
that the respondent-accused is a member of the same
organisation. This creates a risk of intimidation of the
D witnesses as well as undue prejudice seeping into the
minds of those who may be involved in the legal
proceedings in different capacities.
20. In this scenario, in our considered view it would be
expedient in the ends of justice to conduct the trial in Delhi.
E We accordingly direct that the impugned cases be
transferred from the Court of the Chief Judicial Magistrate,
Ukhrul, Manipur to a Designated CBI Court (manned by a
judicial officer of the rank of a Sessions Judge) in New
Delhi."
F
(emphasis is ours)
The scope of jurisdiction under Section 406 of the Code
of Criminal Procedure was also considered by this Court in
Surendra Pratap Singh v. State of Uttar Pradesh, (2010) 9
G SCC 475, wherein this Court held as under:
14. Mr Gupta submitted that except for wild allegations
made against the investigating authorities and the officials
of the State Government, nothing substantial has been
disclosed from the submissions made on behalf of the
H petitioner which would indicate that either the investigating
RAJESH TALWAR v. C.B.I. & ORS. 865
agencies or the prosecuting agency was in any way biased A
in favour of Respondent 2. On the other hand, upon a fair
investigation undertaken by two separate agencies, which
included CB CID, it had been found that Respondent 2 was
not in any way connected with the alleged incident of 24-
6-2005. In fact, at the relevant time, the party to which he B
belonged was not in power which would enable him to
influence the course of investigation. Mr. Gupta submitted
that no interference was called for with the investigation
reports submitted both by the local police as also by CB
CID, and the transfer petition was, therefore, liable to be c
dismissed.
15. We have carefully considered the submissions made
on behalf of the respective parties. While the arrest of
Respondent 2 may have been stayed by the High Court,
the circumstances in which the incident had occu"ed on D
24-6-2005 coupled with the fact that Respondent 2 was
returned as an MLA in the same elections, does to some
extent justify the apprehension of the petitioner that the
perspective of the prosecution may become polluted.
There is no getting away from the fact that Respondent E
2 is an MLA and that too belonging to the present
dispensation. Since justice must not only be done but
must also seem to be done, this case, in our view, is an
example where the said idiomatic expression is relevant.
16. It would not be proper on our part to dilate on this F
question further during the pendency of the trial. We are,
however, of the view that in order to do fair justice to all
the parties, the trial should be held outside the State of
Uttar Pradesh and, accordingly, we allow the transfer
petition and direct that the matter be transfe"ed to the G
High Court of Madhya Pradesh which shall decide the
place and the court before which the trial may be
conducted."
(emphasis is ours)
H
866 SUPREME COURT REPORTS [2012] 4 S.C.R.
A The issue in hand was also examined by this Court in Nahar
Singh Yadav v" Union of India, (2011) 1 SCC 307. Relevant
extract including the parameters delineated by this Court which
ought to be kept in mind while considering an application for
transfer and the consideration of the factual matrix involved in
B the controversy dealt with are being extracted hereunder:
"21. Reverting to the main issue, a true and fair trial is sine
qua non of Article 21 of the Constitution, which declares
that:
"21. Protection of life and personal liberty.-No person
c shall be deprived of his 'life' or 'personal liberty' except
according to 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
D also his life has to be unbiased, and without any prejudice
for or against the accused. An impartial and uninfluenced
trial is the fundamental 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
E 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.
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,
F
Section 406 CrPC empowers this Court to transfer any
case or appeal from one High Court to another High
Court or from one criminal court subordinate to one High
Court to another criminal court of equal or superior
jurisdiction subordinate to another High Court, to meet
G the ends of justice.
22. It is, however, the trite law that power under Section
406 CrPC has to be construed strictly and is to be
exercised sparingly and with great circumspection. It
H needs little emphasis that a prayer for transfer should be
RAJESH TALWAR v. C.B.I. & ORS. 867
allowed only when there is a we/I-substantiated A
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 application for
transfer of a trial, as any transfer of trial from one State B
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.
xxx xxx xxx xxx c
29. Thus, although no rigid and inflexible rule or test could
be laid down to decide whether or not power under
Section 406 CrPC 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 D
that an order of transfer of trial is not to be passed as a
matter of routine or merely because an interested party has
expressed some apprehension about the proper conduct
of a trial. This power has to be exercised cautiously and
in exceptional situations, where it becomes necessary to E
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:
(i) when it appears that the State machinery or F
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;
(ii) when there is material to show that the accused may
influence the prosecution witnesses or cause physical harm G
to the complainant;
(iii) comparative inconvenience and hardships likely to be
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 H
868 SUPREME COURT REPORTS [2012] 4 S.C.R.
A expenses of the official and non-official witnesses;
(iv) a communally surcharged atmosphere, indicating
some proof of inability of holding fair and impartial trial
because of the accusations made and thee nature of the
crime committed by the accused; and
B
(v) existence of some material from which it can be inferred
that some persons are so hostile that they are interfering
or are likely to interfere either directly or indirectly with the
course of justice.
c 30. Having considered the rival claims of both the parties
on the touchstone of the aforestated broad parameters,
we are of the view that the apprehension entertained by
CBI that the trial of the case at Ghaziabad may not be fair,
resulting in miscarriage of justice, is misplaced and cannot
D be accepted. From the material on record, we are unable
to draw any 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
E point of time and that some of the witnesses are judicial
officers, the trial at Ghaziabad would be 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
F
with the belief that he is not to be guided by any factor other
than 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
G
disposed to believe that either the witnesses or the Special
Judge will get influenced 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
H
RAJESH TALWAR v. C.B.I. & ORS. 869
undermines the credibility and the independence of the A
entire judiciary of a State. Accordingly, we outrightly reject
this ground urged in support of the prayer for transfer of
the trial from Ghaziabad.
31. As regards the plea that the Court of Special Judge,
CBI, Ghaziabad is already heavily overburdened, in our B
opinion, that is again not a ground for transfer of trial. If
at all the said court is overburdened, 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 C
and the serious concern already shown by the State
Government by issuing Notification dated 10-9-2008
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 o
other sensitive trials, stated to be pending in that court, as
well.
32. For the aforestated reasons, as at present, we do not
find any merit in the request of CBI for transfer of the trial
from Ghaziabad to any other place. Accordingly, the prayer E
is declined. The trial court is directed to proceed with the
case expeditiously."
(emphasis is ours)
The issue of transfer of proceedings under Section 406
of the Code of Criminal Procedure was examined by this Court F
in Vikas Kumar Roorkewal v. State of Uttarakhand, (2011) 2
SCC 178, wherein this Court observed as under:
"23. It is true that there must be reasonable apprehension
on the part of the party to a case that justice may not be G
done and mere allegation that there is apprehension that
justice will not be done cannot be the basis for transfer.
However, there is no manner of doubt that the reasonable
apprehension that there would be failure of justice and
acquittal of the accused only because the witnesses are
870 SUPREME COURT REPORTS [2012] 4 S.C.R.
A threatened is made out by the petitioner.
24. This Court, on various occasions, had opportunity to
discuss the importance of fair trial in criminal justice
system and various circumstances in which a trial can be
transferred to dispense fair and impartial justice. It would
B be advantageous to notice a few decisions of this Court
with regard to the scope of Section 406 of the Code of
Criminal Procedure.
xxx xxx xxx xxx
c 29. From the averments made in the petition it is evident
that the accused belong to a powerful gang operating in
U.P. from which the State of Uttarakhand is carved out. The
petitioner has been able to show the circumstances from
which it can be reasonably inferred that it has become
difficult for the witnesses to safely depose truth because
D
of fear of being haunted by those against whom they have
to depose. The reluctance of the witnesses to go to the
court at Haridwar in spite of receipt of repeated summons
is bound to hamper the course of justice. If such a situation
is permitted to continue, it will pave way for anarchy,
E oppression, etc., resulting in breakdown of criminal justice
system. In order to see that the incapacitation of the
eyewitnesses is removed and justice triumphs, it has
become necessary to grant the relief claimed in the instant
petition. On the facts and in the circumstances of the case
F this Court is of the opinion that interest of justice would be
served if transfer of the case from Haridwar to Delhi is
order."
(emphasis is ours)
G Last of all reference may be made to the decision rendered
by this Court in Jahid Shaikh v. State of Gujarat, (2011) 7 SCC
762. The observations made by this Court with reference to
Section 406 of the Code of Criminal Procedure, are placed
below:
H "39. However, such a ground, though of great importance,
RAJESH TALWAR v. C.B.I. & ORS. 871
cannot be the only aspect to be considered while deciding A
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 8
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 CrPC
and Order 36 of the Supreme Court Rules, 1966 for the
same reliefs.
c
40. 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 0
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 stage of framing
of charge, though serious, is not insurmountable. The E
accused have their remedies elsewhere and the
prosecution still has to prove its case.
41. As mentioned earlier, the communally surcharged
atmosphere which existed at the time of the alleged
incidents, has settled down considerably and is no longer F
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 G
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 be designated outside the State of
H
872 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Gujarat.
42. 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
B 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
c than real, but in order to dispel such apprehension, we
also keep it open to tfle petitioners that in the event the
apprehension of the petitioners is 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." (emphasis is ours)
D
It is in light of the parameters recorded by this Court that we
shall endeavour to determine the veracity of the prayer made
by the petitioners for transfer of proceedings from the court of
the Special Judicial Magistrate (CBI), Ghaziabad, U.P., to a
E court of competent jurisdiction in Delhi/New Delhi.
15. First and foremost we shall deal with the ground of
inconvenience raised by the petitioners for seeking transfer of
proceedings. In so far as the instant issue is concerned,
besides the judgments referred to hereinabove, reference may
F be made to the decision rendered in Bhairu Ram v. Central
Bureau of Investigation, (2010) 7 SCC 799, wherein the issue
of inconvenience was considered, and this Court held as
under:
"10. In the case on hand, except convenience, the
G petitioners have not pressed into service any other
ground for transfer. In fact, Mr P.H. Parekh, informed this
Court that the petitioners are willing to attend the
proceedings at Delhi, if the case is transferred to Special
Court, CBI, Delhi.
H 11. Mr H.P. Raval, learned Additional Solicitor General,
RAJESH TALWAR v. C.B.I. & ORS. 873
after taking us through specific averments made in the A
counter-affidavit filed on behalf of Respondents 1 and 2
(CBI), submitted that the main accused Shri B.R. Meena
is a very influential person in the State of Rajasthan and
there is strong apprehension that due to influence of Shri
B.R. Meena, there would be no fair trial at Jaipur or any B
other place in the State of Rajasthan. He also pointed out
that the Court of Special Judge, CBI at Greater Mumbai
has ample jurisdiction to try this case because various
movable properties have been found in Mumbai and the
main accused, Shri B.R. Meena, was posted in Mumbai c
from 2001 to the end of the check period i.e. 4-10-2005
and this is the period during which most of the properties
were allegedly acquired by him and his family members.
12. We have already adverted to the fact that against the
main accused Shri B.R. Meena, (IRS 1977), o
Commissioner of Income Tax, Income Tax Appellate
Tribunal, Mumbai, a case has been registered on 29-9-
2005 under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, 1988 for possession of
assets in his own name and in the name of his family E
members to the extent of Rs 43,29,394 which were
disproportionate to his known sources of income and
could not be satisfactorily accounted for. It further shows
that Respondent 3, during the check period i.e. 1-4-1993
to 4-10-2005, acquired assets disproportionate to his
F
known sources of income to the extent of Rs 1,39,39,025.
13. The petitioners have been charge-sheeted for
commission of offences under Section 109 read with
Section 193 IPC read with Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988 for G
having actively aided and abetted Respondents 3 to 4 by
fabricating false evidence through preparation of false
agreements to sell with the object to justify/explain the huge
cash recoveries from the residential premises of
Respondent 3. It further reveals that the petitioners entered H
874 SUPREME COURT REPORTS [2012] 4 S.C.R.
A into false transactions with Respondent 3 showing receipt
of cash amounts against alleged purchase of immovable
properties from him. The stamp papers were purchased
against (sic after) registration of case and false
agreements to sell were prepared in connivance with each
B other.
14. A perusal of the charge-sheet containing all these
details clearly shows that witnesses to be examined are
not only from Jaipur, Rajasthan, but also from various other
places including Mumbai. Though the petitioners may have
C a little inconvenience, the mere inconvenience may not be
sufficient ground for the exercise of power of transfer but
it must be shown that the trial in the chosen forum will result
in failure of justice.
D 15. We have already pointed out that except the plea of
inconvenience on the ground that they have to come all the way
from Rajasthan no other reason was pressed into service.
Even, the request for transfer to Delhi cannot be accepted since
it would not be beneficial either to the petitioners or to the
E. prosecution. In fact, the main accused, Respondents 3 and 4
have not filed any petition seeking transfer. In such ·
circumstances, the plea of the petitioners for transfer of the case
from the Court of Special Judge, CBI, Greater Mumbai to
Special Judge, CBI, Jaipur on the ground of inconvenience
F cannot be accepted."
(emphasis is ours)
The ground of inconvenience for transfer again came up
for consideration before this Court in Jyoti Mishra v.
Dhananjaya Mishra, (2010) 8 SCC 803, wherein the Court
G observed as follows:
"5. It is true that in cases of dissolution of marriage,
restitution of conjugal rights or maintenance, this Court
shows much indulgence to the wife and ordinarily transfers
the case to a place where it would be more convenient for
H
RAJESH TALWAR v. C.B.I. & ORS. 875
the wife to prosecute the proceedings. But a criminal case A
is on a somewhat different footing. The accused may not
be able to attend the court proceedings at Indore for many
reasons, one of which may be financial constraints, but the
consequences of non-appearance of the accused before
the Indore Court would be quite drastic. B
6. Having regard to the consequences of non-appearance
of the accused in a criminal trial, we are loath to entertain
the petitioner's prayer for transfer. In a criminal proceeding,
the right of the accused to a fair trial and a proper
opportunity to defend himself cannot be ignored for the C
convenience of the complainant simply because she
happens to be the estranged wife." (emphasis is ours)
From the two judgments, referred to hereinabove, it clearly
emerges that inconvenience cannot be a valid basis for transfer
of "criminal proceedings" from one court to another under D
Section 406 of the Code of Criminal Procedure. Be that as it
may, we are of the view that the instant contention advanced
at the hands of the learned counsel for the petitioner is wholly
frivolous. According to the factual position depicted by the
learned counsel for the petitioners themselves, the distance E
between Noida and Ghaziabad is 35 kms. whereas the
distance between Noida and Delhi is 17 kms. Based on a
simple mathematical conclusion the distance between Delhi
and Ghaziabad must be approximately 52 kms. (35+17=52). It
is ununderstandable how a plea of inconvenience can be based F
to avoid travelling a distance of merely 52 kms. Even if it is
assumed that a couple of hours would be consumed for
travelling to and fro (from Delhi to Ghaziabad and back) the
inconvenience would not be such as can be the basis for
seeking transfer. Jurisdiction of a court to conduct criminal G
prosecution is based on the provisions of Code of Criminal
Procedure. Often either the complainant or the accused have
to travel across an entire State to attend to criminal
proceedings, before a jurisdictional court. In some cases to
reach the venue of the trial court, a complainant or an accused H
876 SUPREME COURT REPORTS [2012) 4 S.C.R.
A may have to travel across several States. Likewise, witnesses
too may also have to travel long distances, in order to depose
before the jurisdictional court. If the plea of inconvenience for
transferring the cases from one court to another, on the basis
of time taken to travel to the court conducting the criminal trial
s is accepted, the provisions contained in the Criminal
Procedure Code earmarking the courts having jurisdiction to
try cases would be rendered meaningless. Convenience or
inconvenience are inconsequential so far as the mandate of law
is concerned. The instant plea therefore, deserves outright
c rejection.
16. In so far as the second contention advanced at the
hands of the counsel for the petitioner is concerned, transfer
has been sought on the issue of threatened personal security.
The petitioners believed that their personal security is at risk
D on account of a vicious attack with a cleaver's knife on Dr.
Rajesh Talwar, which resulted in his having suffered grievous
injuries not only on his face but on both his hands as well. The
injuries are stated to have rendered Dr. Rajesh Talwar
handicapped for more than two months. The aforesaid incident
E has allegedly had the effect of making both the petitioners
scared to attend any court-proceedings at the Ghaziabad court-
complex. The case set up by the petitioners is, that the incident
in question has completely shaken the confidence of the
petitioners, and that, it is unsafe for the petitioners to appear
F before the Special Judicial Magistrate (CBI), Ghaziabad, U.P.
to defend themselves. Whilst we are of the view that all
preventive measures should have been in place to avoid any
assault of the nature which Dr.Rajesh Talwar encountered on
25.1.2011, we appreciate the impossibility of the aforesaid task
specially when the attacker is a person suffering from a mental
G disability. Such an attack cannot be deemed to have been
aimed at disabling the petitioners to defend themselves. The
physical assault suffered by the petitioner was clearly unrelated
to their court-proceedings. In the aforesaid view of the matter,
the incident relied upon by the learned counsel for the
H
RAJESH TALWAR v. C.B.I. & ORS. 877
petitioners to seek transfer of proceedings by invoking Section A
406 of the Code of Criminal Procedure, is clearly misconceived.
Even otherwise, the counter affidavit filed on behalf of the CBI
is categorical on the issue in hand, to the effect that the
Sessions Judge, Ghaziabad, has personally reviewed the
security system in the entire court-premises, security/police B
personnel have been deployed so that no untoward incident
occurs in future. Additionally, the venue of the court-proceedings
of the petitioners has been shifted to a new building which has
proper boundary walls on all sides, with only one small entrance.
The building where the petitioners are required to attend the C
court proceedings is therefore totally safe. In the counter
affidavit filed by the CBI it has been expressed, that whenever
the case of the petitioners' is to be heard, adequate police force
would be deployed by the local administration. The aforesaid
undertaking (expressed in the counter affidavit, filed on behalf
0
of the CBI has been endorsed by the learned counsel
representing the State of Uttar Pradesh. Even though it has
been pointed out that the petitioners have not moved any
application either to the Special Judicial Magistrate (CBI),
Ghaziabad, U.P. or to the police for seeking protection; we are
assured, if such a request is made at the hands of the E
petitioners, the same will be duly considered in accordance with
law. We have extracted a relevant part of the affidavit dated
24.2.2012 filed by Shri Praveen Kumar Rai, Advocate in
paragraph 8 hereinabove. While perusing the aforesaid affidavit
we noticed reference therein to an order dated 25.1.2011 F
passed in respect of the proceedings pending before the
Special Judicial Magistrate (CBI), Ghaziabad, U.P. While
dealing with the contention in hand, it is necessary to place on
record the aforesaid order dated 25.1.2011, the same is
accordingly being extracted hereunder:- G
"Under the circumstances seeing the sensitivity of the
case, by invoking inherent provisions under section 327
Cr.P.C. the court feels it in the interest of justice that during
the proceedings of the instant case no person shall be
H
878 SUPREME COURT REPORTS [2012) 4 S.C.R.
A allowed to enter in the courtroom except for the parties to
the case and their respective counsels.
Sd/-
Special Judicial Magistrate
B (CBl},Ghaziabad"
The aforesaid order reveals the seriousness of the presiding
officer concerned. So as to ensure not only the safety of the
petitioners but also a free and fair trial, keeping in mind the
sensitive nature of the case, an appropriate order has already
c been passed by the presiding officer. We have no doubt in our
mind, that the order dated 25.1.2011 shall be enforced in letter
and in spirit. In case of breach thereof we would expect the
Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take
appropriate steps including coercive measures if necessary,
D to enforce the same. The majesty of law must be maintained
at all costs. In the background of the aforesaid developments,
we are of the view that the proceedings being conducted at the
court-complex at Ghaziabad, cannot be termed as unsafe, so
as to be considered as threatening the personal security of the
E petitioners. As such, we find no merit in the prayer for transfer
of proceedings from Ghaziabad to Delhi/New Delhi even on the
ground of personal security.
17. The third ground raised by the petitioners, noticed in
paragraph 7 hereinabove, needs no adjudication at our hands
F on account of the fact that the same was not pressed by the
learned counsel representing the petitioners during the course
of hearing. The details depicting the third ground have been
noticed only because the learned Senior Counsel representing
the respondents insisted on inviting our attention to the fact that
G the petitioners had expressed baseless insinuations against the
presiding officer of the court. Based on certain insinuations the
petitioners had asserted, that they were not likely to get justice,
as the concerned court was proceeding in the matter with a pre-
determined mind. The insinuations levelled by the petitioners
are based on an order passed by the Special Judicial
H
RAJESH TALWAR v C Bl. & ORS. 879
Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011. Learned A
counsel for the petitioners advisedly refrained from pressing
the instant ground during the course of hearing. Even raising
such a ground in the pleadings, to state the least, can certainly
be termed as most irresponsible. The impertinence of the
petitioners in the instant case, is magnified manifold because B
the order dated 28.2.2011 was assailed by the petitioners
before the High Court of Judicature at Allahabad, but the
challenge failed. In this view of the matter, the insinuations can
also be stated to have been aimed even at the High Court.
Although we could have initiated action against the petitioners, c
yet in the peculiar facts and circumstances of this case, we
refrain ourselves from doing so. However, we consider it just
and appropriate to warn the petitioners from any such
impertinence in future.
18. In so far as the last contention advanced at the hands D
of the learned counsel for the petitioners is concerned, the
same was based on the affidavit of Shri Praveen Kumar Rai,
Advocate dated 24.2.2012, as also, an application filed by the
said counsel on 4.2.2012 (Annexure A-3 with the affidavit,
independently extracted hereinabove). We find merit in the E
contention advanced at the hands of the learned Senior
Counsel representing the respondents, that the application
dated 4.2.2012 (Annexure A-3) as also the affidavit of Shri
Praveen Kumar Rai, Advocate, dated 24.2.2012 are vague, and
as such, cannot be the basis of a justifiable claim for supporting F
a prayer for transfer of proceedings, under Section 406 of the
Code of Criminal Procedure. As pointed out by the learned
counsel for the respondents, even though allegations have been
levelled in the application (dated 4.2.2012) as well as the
affidavit (dated 24.2.2012), that the petitioners counsel were
prevented from discharging their responsibility appropriately; G
neither the application nor the affidavit disclose what the
petitioners counsel were prevent from, as also, the identity of
those responsible. Therefore, the last contention, in our
considered view, is also devoid of any merit and as such
deserves rejection. H
880. SUPREME COURT REPORTS [2012] 4 S.C.R.
A 19. For the reasons stated hereinabove, we find no merit
in the Transfer Petitions separately filed by Dr. Rajesh Talwar
and Dr. Mrs. Nupur Talwar. It is not possible in the facts and
circumstances of this case for us to conclude, that the
petitioners will be deprived of a free and fair trial at Ghaziabad.
B We are also satisfied that there is no well-substantiated
apprehension, that justice will not be dispensed to the
petitioners impartially, objectively and without any bias. It is also
not possible for us to accept that the physical assault on Dr.
Rajesh Talwar on 25.1.2011 at the hands of a psychopath can
C be a valid basis for transfer of the present proceedings from
Ghaziabad to Delhi/New Delhi. In view of the measures
adopted by the Sessions Judge, the CBI and the State
Administration towards security arrangements in the court-
premises generally, and also, the special arrangements which
D the respondents have undertaken to make, with particular
reference to the petitioners, we are satisfied that justice will be
dispensed to the petitioners in an atmosphere shorn of any fear
or favour. We have extracted the order passed by the Special
Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in
paragraph 16 hereinabove. We wish to reiterate, that the order
E dated 25.1.2011 shall be enforced in letter and in spirit. In case
of breach thereof we would expect the Special Judicial
Magistrate (CBI), Ghaziabad, U.P. to take appropriate steps
including coercive measures if necessary, to enforce the same.
The majesty of law must be maintained at all costs. We have
F no doubt, that the basis on which the petitioners are seeking
transfer of proceedings are just speculative and unjustified
apprehensions based interalia on vague and non-specific
allegations. The instant Transfer Petitions are accordingly
dismissed. We also wish to caution the petitioners, from making
G any irresponsible insinuations with reference to court-
proceedings. The proper course would be, to assail before a
superior court, any order which may not be to the satisfaction
of the petitioners, in accordance with law.
H N.J. Transfer petitions dismissed.
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