VIKAS KUMAR ROORKEWALversusSTATE OF UTTARAKHAND AND ORS,

                               [2011] 1 S.C.R. 279


                        VIKAS KUMAR ROORKEWAL                                 A
• >-                                    v.
                    STATE OF UTTARAKHAND AND ORS,
                    (Transfer Petition (Crl.) No. 29 of 2008)
                               JANUARY 11, 2011
                                                                              B
                  (J.M. PANCHAL AND H.L. GOKHALE, JJ.]

    -i·       Code of. Criminal Procedure, 1908:

               s. 406 - "fransfer petition - Petitioner's father brutally     c
          murdered in broad daylight - Accused belonging to powerful
          gang operating in the State - Records showed threat
          administered to the petitioner and family by accomplices of
          the accused - No action taken by police or State Government
          to afford protection to petitioner/his family or to thwart threats D
          made by accused - Four accused already enlarged on bail
          but police or State Agency not taken steps for cancellation of
          their bai( order- Sincerity/effectiveness of prosecuting agency
          apparent from such conduct - The reluctance of the witnesses
          to go to the court at Haridwar in spite of receipt of repeated
                                                                             E
          summons bound to hamper the course of justice - Petitioner
          able to make out a case that thete would be failure of justice
...,.     and resuitant acquittal of the accused only on account of
          threats to the witnesses - On the facts and circumstances of
          the case and in the interest of justice, the transfer of the case
          from Haridwar to Delhi ordered.                                    F

               s. 311 - Power of court to summon and examine
          witnesses - Role of F';9siding Judge ..;.. Held: The Judge has
          to take participatory role in the trial - He is not to act like a
  )-.     mere tape-recorder to record whatever is stated by the              G
          witnesses- s.311 and s.165 of the Evidence Act confers vast
          and wide powers on court to elicit all necessary materials by
          playing an active role in the evidence collecting process -
          Evidence Act - s. 165.
                                         279                                  H
    280       SUPREME COURT REPORTS            [2011) 1 S.C.R.

A      The petitioner's case was that his father was the
  Superintending Engineer and in-charge of a project.
  involving huge amount. He was brutally murdered in
  broad day light by three persons at his residence at i
  Roorkee (Uttarakhand). He filed the instant transfer
B petition seeking transfer of criminal case against the
  accused (involved in his father's murder) from court at
  Uttarakhand to Delhi. The transfer of case was sought on
  the ground of coercion and threat to the witnesses as well
  as doubtful sincerity of the investigating agency and
c prosecuting agency. The petitioner stated in the petition
  that the driver of his father who was an eye witness had
  turned hostile and the other witnesses who were
  regularly receiving summons for appearing in Court to
  give testimony were unable to appear and depose due
  to regular threats administered to them. Further, it was
0
  also mentioned in the petition that the petitioner, his wife ·
  and mother had already left Roorkee on account of fear
  and threats and have started staying in Delhi and were
  thus unable to depose before the court at Haridwar.

E         Disposing of the transfer petition, the Court

       HELD: 1.1. The record of the case showed that
  several letters were written and/or applications were made
  by the petitioner making grievances about the threats
F administered to him and his family by the accomplices of
  the accused, however, no action was taken either by the
  SSP, Haridwar or by Government of Uttarakhand eitl;ler
  to afford protection to the petitioner and his family or to
  thwart such threats made by the accused and/or their
G accomplices. It was not disputed that the driver of the          ~
  deceased had turned hostile. The fact that in spite of
  rece.ipt of several summons neither the petitioner nor his
  wife nor his family members nor other witnesses have
  been able to go to Haridwar to depose before       tile
                                                        Court
  was not denied by the State Government. There is no
H
     VIKAS KUMAR ROORKEWAL v. STATE OF                  281
            UTIARAKHAND AND ORS.
manner of doubt that because of chasing of the petitioner      A
and his relatives by the accomplices of the accused, they
have not been able to attend the Court and tender
evidence. If this situation continues then the prosecution
would not be able to lead any evidence in such a brutal
murder case and the accused will have to be acquitted.         B
The record indicates that four accused have been already
enlarged on bail but neither the police nor the State
agency has taken any steps for the purpose of getting
their bail order cancelled. [Para 13] [288-8-G]

    Himanshu Singh Sabharwa/ v. State of M.P. and others       C
(2008) 4 SCR 783 - relied on.
    Abdul Nazar Madani v. State of Tamil Nadu AIR 2000
SC 2293- referred to.
                                                               D
     1.2. Ineffective cross-examination by public
prosecutor of the driver who resiled from the statement
made during investigation speaks volumes about the
sincerity/ effectiveness of the prosecuting agency. The
necessity of fair trial hardly needs emphasis. The State       E
has a definite role to play in protecting the witnesses, to
start with at least in sensitive cases. The Judge has failed
to take participatory role in the trial. He was not expected
to act like a mere tape-recorder to record whatever has
been stated by the witnesses. Section 311, Cr.P.C. and
Section 165 of the Evidence Act confers vast and wide          F
powers on Court to elicit all necessary materials by
playing ah active role in the evidence collecting process.
However, the record did not indicate that the Judge
presiding the trial had exercised powers under Section
165 of the Evidence Act which is in a way complimentary        G
to his other powers. It is true that there must be
reasonable apprehension on the part of the party to a
case that justice may not be done and mere allegation
that there is apprehension that justice will not be done
cannot be the basis for transfer. However, t!lere is no        H
   282     SUPREME COURT REPORTS         [2011] 1 S.C.R.


A manner of doubt that the reasonable apprehension that
  there would be failure of justice and acquittal of the
  accused only because the witnesses are threatened is
  made out by the petitioner. [Para 15) [291·A·F]
             VIKAS KUMAR ROORKEWAL v. STATE OF                        283
                    UTTARAKHAND AND ORS.
             (1979) 4 sec 167           relied on              Para 16       A
> .>-
             c2004) 3 sec 1s1           relied on              Para 16
             (7 JOO) 6 sec 204          relied on              Para 16
              ..;RIMINAL ORIGINAL JURIDICTION : Transfer Petition            B
        (Crl.) No. 29 of 2008.

             D.R. Nigam, Rajesh Kumar, Krishna Kumar R.S., R.K.
        Shrivastav for the Petitioner.

            Soumyajit Pani, Ansar Ahmad Chaudhary, S.S.                      c
        Shamshery, Jatinder Kumar Bhatia, Dr. Laxmi Shastri, R.K.
        Shastri, Dr. Vipin Gupta for the Respondents.

             The Judgment of the Court was delivered by

              J.M. PANCHAL, J. 1. By filing this petition under Section      D
        406 of the Code of Criminal Procedure 1973 ("The Code", for
        short), the petitioner, who is son of late Radhey Shyam and who
         is also the first informant in the case relating to the murder of
         his father, has prayed that the case titled as State Vs. Aakash
         Tyagi and others being S.T. No. 6 of 2007 pending in the Court      E
        of learned Additional District Judge, Fast Track Court, Haridwar
         (Uttrakhand) arising out of crime No. 182 of 2006 and FIR
         No.169 of 2006 be transferred to the Court of competent
        jurisdiction at Delhi.
                                                                             F
             2. The background facts as projected by the petitioner in
        the instant petition are as follows:-

            Late Radhey Shyam was initially appointed Executive
        Engineer in Irrigation Department of Uttar Pradesh. In January,
    ~   2004 he was posted to look after a project known as Upper            G
        Ganga Link Canal Project, under which two rivers, namely,
        Ganga and Yamuna were to be linked. It is claimed that
        because of his excellent track record, efficiency and honesty,
        he was promoted to the post of Superintending Engineer in
        November, 2005 and was placed in charge of the said project,         H
    284      SUPREME COURT REPORTS                [2011] 1 S.C.R.


A the total cost of which was Rs.240 crores. The project was
  intended to solve the long standing irrigation and drinking water     -l ,.
  problems of western U.P. and also to provide a solution to
  control floods. He was brutally murdered in cold blood in broad
  day light in the afternoon of June 18, 2006 by three persons at
B his residence located in his Camp Office at Roorkee
  (Uttarakhand). The petitioner, who claims to be an eye-witness,
  has stated that he had chased the accused but they had
  escaped and, therefore, he had called the police and reported
  the matter to the police immediately. The police on arrival at
c the place of the incident had taken the deceased to the
  Government Hospital where he was declared brought dead. On
  the basis of the information given by the petitioner, the police
  had registered an FIR No. 169/2006 on 18.6.2006. On the
  same day post mortem on the dead body of the deceased was
  conducted by the medical officers, on the intervention of the
0
  District Magistrate (Uttarakhand). The murder of Radhey
  Shyam, Superintending Engineer of U.P. had sent shock waves
  throughout Uttarakhand and U.P and in the engineering and
  bureaucratic community and the incident was widely reported
  in the newspapers.
E
       3. Because of the high profile of the accused involved in
  the murder of the deceased engineer, the Uttarakhand police
  was found to be incapable/reluctant to investigate the crime.
  Therefore, the State of Uttar Pradesh had directed the Special ·
F Task Force along with Special Operation Group to investigate
  the murder and to arrest the accused. It may be mentioned that
  the Special Task Force along with Special Operation Group
  appointed to investigate the matter and to arrest the accused
  had conducted large number of raids. All the arrests were made
G by Special Task Force, Uttar Pradesh except one which was
  effected by the Uttarakhand police on the information of Special
  Task Force, Uttar Pradesh.

         4. It is mentioned by the petitioner that large scale
    corruption is prevailing in the Irrigation Department and earlier
H
     VIKAS KUMAR ROORKEWAL v. STATE OF                        285
    UTTARAKHAND AND ORS. [J.M. PANCHAL, J.]
two Junior Engineers were also murdered brutally. It was              A
reported that disputes concerning the contracts which were
entrusted and to be entrusted under the project had emerged
as the main reason for the murders of these engineers including
that of late Radhey Shyam. The record shows that after
investigation, charge-sheet was filed and charges have been           B
framed against accused persons, who are respondent Nos. 2
to 9 in the Transfer Petition, under Section 302 read with
Section 1208 of the Indian Penal Code and Section 3(2)(V)
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The trial has commenced in the Court of        c
learned Additional District Judge, Fast Track Court, Haridwar
(Uttarakhand) and by this time, one witness is already
examined.                                          ·

        5. Grievance of the petitioner is that continuously threats
  are being administered to his family including him and other        D
 witnesses that they would meet the same fate as that of the
  deceased, if they dare to depose before the Court. The
  petitioner has mentioned that the first eye witness examined
  in the court, who was the driver of the deceased, has turned
· hostile because of the threats given to him and the learned         E
  Judge presiding over the trial could not do anything except
  being a passive spectator. The petitioner claims that he along
 with his wife was chased by the gang when they were enroute
 to Haridwar to appear before the court on May 25, 2007, and
  due to fear, they have not been able to appear before the court     F
  on several dates.

     6. The petitioner has mentioned that the other witnesses
who are yet to be examined are regularly receiving/getting
summons calling upon them to remain present before the court G
to tender testimony, but they are unable to appear and depose.
before the Trial Court at Haridwar due to regular threats being
administered to them. It is also mentioned by the petitioner that
his mother on account of fear and threats has already left
Roorkee and is staying with brother of the petitioner in Delhi H
    286       SUPREME COURT REPORTS                [2011) 1 S.C.R.


A and is thus unable to depose before the court at Haridwar. What
  is claimed by the petitioner is that due to the threats received
  by him, he and his wife who are material witnesses have also
  started residing at Delhi.

          7. The petitioner has mentioned that he has written several
8
    letters/made applications and prayed the competent authorities
    to take immediate action and to provide security "to him and
    other witnesses, but no action has been taken.

         8. What is mentioned in the petition is that in the Dainik
C . Jagran newspaper published on June 8, 2007 it was reported
    that SunirRathi, responsible for murdering the deceased is
    running his gang in Uttar Pradesh and Uttarakhand from
    Dehradun Jail and has created wide spread terror which would
    not permit fair trial commenced in case of the murder of the
D deceased. The petitioner has mentioned that the investigation         ..""- _
    by the police is not impartial and has been influenced by
    powerful people involved in the murder of the deceased. It is
    also highlighted that the trial court also did not make a serious
    effort to see that justice is done. Thus, by filin-g ·the instant
E petition, the petitioner has prayed to transfer the case pending
    in the court of learned District Judge, Fast Track Co_1,1rt,_
    Haridwar to competent court of jurisdiction at Delhi.

        9. The petition was placed for preliminary hearing before
  the Court on May 1, 2008 and after hearing the learned counsel
F for the petitioner, this Court had ordered notices to be issued_
  to the respondents. On service of notice, the State -of
  Uttarakhand has filed counter affidavit controverting the
  averments made in the petition. It is mentioned in the reply that
  the accused were arrested on different dates and proper
G investigation was made in the case. And mobile phone used
  in the incident, one pistol of 315 bore from Akash Tyagi,
  cartridges, motorcycle having blue colour etc., were ceased. In
  the reply it is mentioned that on interrogation of Akash Tyagi
  and his co-accused other accused namely Vineet Sharma @
H Chinu Pandit was arrested and that the accused are being tried
            VIKAS KUMAR ROORKEWAL v. STATE OF                           287
           UTIARAKHAND AND ORS. [J.M. PANCHAL, J.]
       for alleged commission of serious offences. According to the             A
• >-
       reply affidavit Uttarakhand police was capable to investigate the
       case and was not reluctant to investigate but in view of
       allegations levelled against local police investigating the case,
       the investigation was handed over to special agency. By filing
       reply, it is claimed by State of Uttarakhand that the petition has       B
       no substance and the same should be dismissed.

             10. The petitioner has filed rejoinder to the affidavit in reply
       filed on behalf of the State Government.

             11. The respondent No. 2, i.e., Kumar Gaurav has also filed c
       affidavit in reply mentioning inter alia that the Transfer Petition
       is '!Vholly misconceived and the allegations leveled therein are
       baseless, vague and incorrect and, therefore, the petition should
       be dismissed. In the reply the respondent No. 2 has referred
 ~     to a decision of this Court in Abdul Nazar Madani Vs. State of D
       Tamil Nadu AIR 2000 SC 2293, wherein it is held that not only
       the convenience of the complainant alone but convenience of
       the accused should also be taken into consideration before
       ordering transfer of criminal case from one State to another.
       The reply proceeds to mention that the investigation is not yet E
       complete and, therefore, if the trial is transferred from Haridwar

·-     fo any ot!TerState;-the same shall have adverse effect on the
       trial and that there is ev~ry_ po~~i~ility that injustice and prejudice
       would be caused to the accused. What is stated is that the
       witnesses proposed to be examined on behalf of accused would
                                                                               F
       not be willing to travel to any other place for tendering defence
       evidence and, therefore, transfer of case would result into
       injustice to the accused. According to the reply, the present
       case is a classic example of trial by media and the petitioner
       who is influential and had widely publicized the incident has
       succeeded in falsely implicating the respondent No. 2 in the G
       case. The reply states that no ground is made out by the
       petitioner to transfer the case from Court of Haridwar to
       competent Court of jurisdiction at Delhi and therefore the petition
       should be dismissed.
                                                                               H
    288       SUPREME COURT REPORTS                 [2011) 1 S.C.R.


A        12. This Court has heard the learned counsel forthe parties
    at length and in great detail. This Court has also considered
    the documents forming part of the instant petition.

          13. From the record of the case it is evident that several
    letters have been written and/or applications have been made
8
    by the petitioner making grievances about the threats
    administered to him and his family by the accomplices of the
    accused. However, it is an admitted position that no action,
    worth the name, is taken either by the SSP, Haridwar or by
    Government of Uttarakhand either to afford protection to the
C   petitioner and his family or to thwart such threats made by the
    accused and/or their accomplices. It is relevant to notice that it
    was claimed by the prosecution that the driver of the deceased
    was an eye-witness and it is the case of the petitioner that due
    to threats, he turned hostile. The fact that the driver had turned
D   hostile is not in dispute. The fact that in spite of the receipt of
    several summons neither the petitioner nor his wife nor his
    family members nor other witnesses have been able to go to
    Haridwar to depose before the Court is not denied by the State
    Government. Therefore, this Court is inclined to accept the case
E   of the petitioner that he and other witnesses have not been able
    to respond the summons only because of fear to their lives due
    to the threats administered by the accomplices of the accused.        .~   -
    There is no manner qf doubt that because of chasing of the
    petitioner and his relatives by the accomplices of the accused,
F   they have not been able to attend the Court and tender
    evidence. If this situation continues then the prosecution would
    not be able to lead any evidence in such a brutal murder case
    and the accused will have to be acquitted. The record indicates
    that four accused have been already enlarged on bail but
G   neither the police nor the State agency has taken any steps for
    the purpose of getting their bail order cancelled.

          14. The learned counsel for the petitioner has placed
  reliance on a decision of this Court in Himanshu Singh
H Sabharwa/ vs. State of M.P. and others (2008) 4 SCR 783,
              VIKAS KUMAR ROORKEWAL v. STATE OF ·                      289
             UTIARAKHAND AND ORS. [J.M. PANCHAL, J.]
          where this Court in paragraphs 14 and 15 has observed as             A
...._     under: -

              "14. "Witnesses" as Benthem said: are the eyes and ears
              of justice. Hence, the importance and primacy of the quality
              of trial process. If the witness himself is incapacitated from
                                                                               B
              acting as eyes and ears of justice, the trial gets putrefied
              and paralysed, and it no longer can constitute a fair trial.
              The incapacitation may be due to several factors like the
 +            witness being not in a p9sition for reasons beyond control
              to speak the truth in the Court or due to negligence or
              ignorance or some corrupt collusion. Time has become             c
              ripe to act on account of numerous experiences faced by
              Courts on account of frequent turning of witnesses as
              hostile, either due to threats, coercion, lures and monetary
              considerations at the instance of those in power, their
              henchmen and hirelings, political clouts and patronage and       D
_..lo..
              innumerable other corrupt practices ingenuously adopted
              to smoother and stifle truth and realities coming out to
              surface rendering truth and justice, to become ultimate
              casualties. Broader public and societal interests require
              that the victims of the crime who are not ordinarily parties     E
              to prosecution and the interests of State represented by
              their prosecuting agencies do not suffer even in slow

-             process but irreversibly and irretrievably, which if allowed
              would undermine and destroy public confidence in the
              administration of justice, which may ultimately pave way         F
              for anarchy, oppression and injustice resulting in complete
              breakdown and collapse of the edifice of rule of law,
              enshrined and !ealously guarded and protected by the
              Constitution. There comes the need for protecting the
              witness. Time has come when serious and undiluted                G
              thoughts are to be bestowed for protecting witnesses so
              that ultimate truth is presented before the Court and justice
              triumphs and the trial is not reduced to mockery. The State
              has a definite role to play in protecting the witnesses, to
              start with at least in sensitive cases involving those in
                                                                               H
    290        SUPREME COURT REPORTS                   [2011) 1 S.C.R.


A         power, who has political patronage and could wield muscle
          and money power, to avert trial getting tainted and derailed
          and truth becoming a casualty. As a protector of its citizens
          it has to ensure that during a trial in Court the witness could
          safely depose truth without any fear of being haunted by
B         those against whom he has deposed. Some legisla'tive
          enactments like the Terrorist and Disruptive Activiti~s
          (Prevention) Act, 1987 (in short the 'TADA Act') have
          taken note of the reluctance shown by witnesses to depose
          against dangerous criminals-terrorists. In a milder form
c         also the reluctance and the hesitation of witnesses to
          depose against people with muscle power, money power
          or political power has become the order of the day. If
          ultimately truth is to be arrived at, the eyes and ears of ·
          justice have to be protected so that the interests of justice
          do not get incapacitated in the sense of making the
D
          proceedings before Courts.mere mock trials as are usually
          seen in movies.

          15. Legislative measures to emphasise prohibition against
          tampering with witness, victim or informant have become
E         the imminent and inevitable need of the day. Conducts
          which illegitimately affect the presentation of evidence in
          proceedings before the Courts have to be seriously and
          sternly dealt with. There should not be any undue anxiety
          to only protect the interest of the accused. That would be
F         unfair as noted above to the needs of the society. On the
          contrary, the efforts should be to ensure fair trial where the
          accused and the prosecution both get a fair deal. Public
          interest in the proper administration of justice must be
          given as much importance if not more, as the interests of
G         the individual accused. In this courts have a vital role to play.
                                                  ,
                                                  .
         15. Above judgment clearly enunciates the importance of
    witness in criminal trial. This is a case of murder of a
    Superintending Engineer. There is no manner of doubt that
    brutal assault was mounted on him which resulted into his death.
H
          VIKAS KUMAR ROORKEWAL v. STATE OF                      291
         UTTARAKHAND AND ORS. [J.M. PANCHAL, J.]
      The son of the deceased is seeking transfer of proceedings A
      on ground of coercion and threat to the witnesses as well as
      doubtful sincerity of the investigating agency and prosecuting
      agency. In effective cross-examination by public prosecutor of
      tile driver who resiled from the statement made during
      investigation speaks volumes about the sincerity/ effectiveness B
      of the prosecuting agency. The necessity of fair trial hardly
      needs emphasis. The State has a definite rote to play in
 ~­   protecting the witnesses, to start with at least in sensitive cases.
      The learned Judge has failed to take participatory role in the
J_
      trial. He was not expected to act like a mere tape recorder to C
      record whatever has been stated by the witnesses. Section 311
      of the Code and Section 165 of the Evidence Act confers vast .
      and wide powers on Court to elicit all necessary materials by .
      playing an active role in the evidence collecting process.
      However, the record does not indicate that the learned Judge
      presiding the trial had exercised powers under Section 165 of D
      the Evidence Act which is in a way complimentary to his other
      powers. It is true that there must be reasonable apprehension
      on the part of the party to a case that justice may not be done
       and mere allegation that there is apprehension that justice will
       not be done cannot be the basis for transfer. However, there E
       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 threatened is made out by the
      petitioner.
                                                                         F
            16. 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 be advantageous
      to notice a few decisions of this Court with regard to the scope   G
      of Section 406 of Code of Criminal Procedure. In Gurcharan
      Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418, this
      Court held as under: -

           "A case is transferred if there is a reasonable
                                                                         H
    292        SUPREME COURT REPORTS                    (2011) 1 S.C.R.


A         apprehension on the part of a party to a case that justice
          will not be done. A petitioner is not required to demonstrate
          that justice will inevitably fail. He is entitled to a transfer if
          he shows circumstances from which it can be inferred that
          he entertains an apprehension and that it is reasonable in
B         the circumstances alleged. It is one of the principles of the
          administration of justice that justice should not only be
          done but it should be seen to be done. However, a mere
          allegation that there is apprehension that justice will not be
          done in a given case does not suffice. The Court has
c         further to see whether apprehension is reasonable or not.
          To judge the reasonableness of the apprehension the state
          of the mind of the person who entertains the apprehension
          is no doubt relevant but that is not all. The apprehension
          must not only be entertained, but must appear to the court
          to be a reasonable apprehension."
D
    In Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC
    167, this Court has observed as under: -

                 "Assurance of a fair trial is the first imperative of the
E         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
                                                                               -.
F         imperilling, from the point of view of public justice and its
          attendant environmE;lnt, 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
G
          complainant has the right to choose any court having
          jurisdiction and the accused cannot dictate where 1he case
          against him should be tried. Even so, the process of justice
          should not harass the parties and from that angle the court
           may weigh the circumstances."
H
    VIKAS KUMAR ROORKEWAL v. STATE OF                        293
   UTTARAKHAND AND ORS. [J.M. PANCHAL, J.]
In K. Anbazhagan vs. Superintendent of Police (2004) 3 SCC           A
767, this Court held as under: -

           "Free and fair trial is sine qua non of Article 21 of
    the Constitution. It is trite law that justice should not only
    be done but it should be seen to have been done. If the
                                                                     8
    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
    and woe would be the rule of law. It is important to note
    that in such a case the question is not whether the
    petitioner is actually biased but the question is whether the    C
    circumstances are such that there· is a reasonable
    apprehension in the mind of the petitioner."

In Abdlil Nazar Madani vs. State of Tamil Nadu (2000) 6 SCC
204, this Court observed as under: -                                 D

          "The purpose of criminal trial is to dispense fair and
    impartial justice uninfluenced by extraneous
    considerations. When it is shown that public confidence in
    the fairness of a trial would be seriously undermined, any · E
    party can seek the transfer of a case within the State under
    Section 407 and anywhere in the country under Section
    406 Cr.P.C. 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 the dispensation of criminal justice is not F
    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-and-fast rules can be prescribed for deciding a G
    transfer petition which has always to be decided on the
    basis of the facts of each case. Convenience of the parties
    including the witness to be produced at the trial is also a
    relevant consideration for deciding the transfer petition. The
    convenience of the parties does not necessarily mean the H
    294       SUPREME COURT REPORTS                 [2011] 1 S.C.R.


A         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
          witnesses and the larger interest of the society."
B
       . 17. From the averments made in the petition it is evident
  that the accused belong to powerful gang operating in U.P. from
  which State of Uttarakhand is carved out. The petitioner has
  been able to show the circumstances from which it can be
C reasonably inferred that it has become difficult for the witnesses
  to safely depose truth because 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
D anarchy, oppression, etc., resulting in breakdown of criminal
  justice system. In order to see that tl)e incapacitation of the eye-
  witnesses 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 this Court is of
E the opinion that interest of justice would be served if transfer
  of the case from Haridwar to Delhi is ordered.

       18. For the foregoing reasons the petition succeeds. The
  case titled as State Vs. Akash Tyagi & Others bearing ST No.
F 6 of 2007 pending in the Court of learned First Fast Track Court
  I A.D.J., Haridwar, Uttarakhand arising out of Crime No. 182/
  2006 and Fl R No.169 of 2006 is hereby transferred to
  competent Court of jurisdiction at Delhi. The investigating
  agency, the prosecution agency, the State of Delhi as well as
G State of Uttarakhand and the learned Judge to whom the trial
  of the case may be made over, are directed to take appropriate
  steps for protecting the witnesses and to ensure that the trial
  concludes as early as possible and without any avoidable
  delay. The Transfer Petition accordingly stands disposed of.

H D.G.                               Transfer Petition disposed of.