BHIARU RAM AND ORS.versusCENTRAL BUREAU OF INVESTIGATION AND ORS.

                      [2010] 9 S.C.R. 554


A                    BHIARU RAM AND ORS.
                                  v.
      CENTRAL BUREAU OF INVESTIGATION AND ORS.
         (Transfer Petition (Criminal) No. 37 of 2009)

                         AUGUST 03, 2010
B
    [P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]

       Code of Criminal Procedure, 1973: s.406 - Transfer
  petition - Plea of inconvenience for seeking transfer of
C criminal case pending before Special Court, CBI, Greater
  Mumbai, to a Court of competent jurisdiction at Jaipur- Main
  accused in the case was alleged to have possessed
  disproportionate to his known sources of income - Case
  against petitioners was that they actively aided and abetted
D the main accused by fabricating false evidence to justify huge
  cash recoveries from the house of main accused - Held: In
  order to transfer a case from one State to another or from one
  plEJce to another, there must be "reasonable apprehension"
  on the part of the party to a case that justice may not be done
E - In the instant petition, accused seeking transfer of case on
  the ground that most of the alleged disproportionate assets
  were situated at Rajasthan and most of the witnesses were
  residents of Rajasthan, Jaipur, in particular - Perusal of
  charge sheet showed that witnesses to be examined were not
F only from Jaipur, Rajasthan, but also from various other
  places including Mumbai - Therefore, though the petitioners
  may suffer a little inconvenience, the mere inconvenience
  cannot be sufficient ground for the exercise of power of
  transfer, as it was not shown that the trial in the chosen forum
  would result in failure of justice - Prevention of Corruption Act,
G 1988 - ss.13(1)(c), 13(d) - Penal Code, 1860 - ss.109, 193
  - Administration of justice - Code of Civil Procedure, 1908
  - s.25.

        An FIR was registered at Delhi against respondent
H                            554
 BHIARU RAM AND ORS. v. CENTRAL BUREAU OF 555
          INVESTIGATION AND ORS.
no.3, a Commissioner of Income Tax, Mumbai under               A
Section 13(2) r.w. Section 13(1)(c) of the Prevention of
Corruption Act, 1988, for possession of assets in his own
name and in the name of his family members
disproportionate to his known sources of income during
the check period i.e. 1.4.1991 to 4.10.2005. During the said   B
period, respondent no.3 was posted at various places
such as Calcutta, Ahmadabad, Jaipur and Mumbai. After
carrying out search at the office of respondent no.3 and
his family members at various places, the CBI filed charge
sheet before Special Court, CBI, Mumbai. In the charge         C
sheet, petitioner nos1-9 were arrayed as accused 5-13.
They were charge sheeted for commission of offences
under Section 109 read with Section 193 of the IPC and
Section 13(2) read with Section 13(1)(e) of·the Prevention
of Corruption Act, 1988 for actively aiding and abetting       D
respondent nos. 3 and 4 by fabricating false evidence
through preparation of false agreements to sell, to justify
the huge cash recoveries from the residential premises
of respondent No.3.

    The instant petition was filed by the petitioners-         E
accused nos.5-13, under Section 406 Cr.P.C. seeking
transfer of the case pending before the Special Court,
CBI, Greater Mumbai, to a Court of competent jurisdiction
at Jaipur. The ground for transfer of case in the petition
was that in the charge sheet, most of the alleged              F
disproportionate assets/properties were ~ituated at
Rajasthan and most of the witnesses were residents of
Rajasthan, Jaipur, in particular.

    Dismissing the transfer petition, the Court
                                                               G
    HELD: 1.1. Section 406 Cr.P.C. empowers the
Supreme Court to transfer any case or appeal from one
High Court to another High Court or from a Criminal

                                                               H
    556     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A Court subordinate to one High Court to another Criminal
  Court of equal or superior jurisdiction subordinate to
  another High Court. It is clear from the provision that for
  the ends of justice, the Supreme Court can transfer any
  criminal case or appeal to any place. In order to transfer
8 a case from one State to another or from one place to
  another, there must be "reasonable apprehension" on the
  part of the party to a case that justice may not be done.
  Mere allegation that there was apprehension that justice
  will not be done, cannot be the basis of transfer. In fact,
C in the instant case, it was not the claim of the petitioners
  that they would not get fair justice at Special Court, CBI,
  Greater Mumbai but they were seeking transfer mainly on
  the basis of convenience stating that all of them hailed
  from Rajasthan and majority of the witnesses to be
  examined were from Jaipur, Rajasthan. [Para 5] (558-G;
D 559-0-E]

       O.A. V. Boys Sr. Sec, School Etc. Etc. vs. O.A. V. College
    Managing Committee 2010(7) Scale 162 - relied on.

E      1.2. A perusal of the charge sheet clearly showed that
  witnesses to be examined were not only from Jaipur,
  Rajasthan, but also from various other places including
  Mumbai. Though the petitioners might suffer a little
  inconvenience, the mere inconvenience cannot be
F sufficient ground for the exercise of power of transfer but
  it must be shown that the trial in the chosen forum would
  result in failure of justice. Except the plea of
  inconvenience 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
G or to the prosecution. In fact, the main accused,
  respondent Nos. 3 and 4 did not file 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,
H
 BHIARU RAM AND ORS. v. CENTRAL BUREAU OF 557
          INVESTIGATION AND ORS.
CBI, Jaipur on the ground of inconvenience cannot be              A
accepted. [Para 9] [561-G-H; 562-A-C]

                     Case Law Reference:

    2010(7) Scale 162         relied on             Para 6
                                                                  B
      CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) No. 37 of 2009.

     P.H. P(irekh, Jayant Mohan, Rahul Pratap, "Coac" for the
Petitioners.
                                                                  c
    H.P. Raval, ASG. P.K. Dey, T.A. Khan, A.K. Sharma, A.
Venayagam Balan, B. Krishna Prasad, V.D. Khanna for the
Respondents.

    The Judgment of the Court was delivered by                    D
    P. SATHASIVAM, J. 1. The petitioners, numbering nine,
have approached this Court under Section 406 of the Code of
Criminal Procedure, 1973 seeking transfer of Special Case
No. 22 of 2008 pending before the Special Judge, CBI, Greater
Mumbai, being CBI Case No. RC/03(A)/2005-ACU-05-CBI,              E
New Delhi, to a Court of competent jurisdiction at Jaipur.

2. Factual Matrix

     On 29.09.2005, a First Information Report (in short "FIR")
                                                                  F
was registered at New Delhi bearing FIR No. RC 3A/2005/
ACU(V), for offences under Section 13(1 )(e) read with Section
13(2) of the Prevention of Corruption Act, 1988 against one
Shri B.R. Meena, who is respondent No.3 herein. At the relevant
time, respondent No.3 was posted as Commissioner of
Income-Tax, Income Tax Appellate Tribunal, Mumbai. The            G
substance of allegations in the FIR against Shri B.R. Meena
was that he was in possession of disproportionate assets from
01.04.1991 to 31.03.2005. During the said period, he was
posted at various places such as Calcutta, Ahmedabad, Jaipur
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    558     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A and Mumbai. After carrying out the search at the official
  residence of Shri B.R. Meena and his family members at
  various places, finally, the C.B.I., on 27.03.2008, filed charge
  sheet before the Court of Special Judge, CBI, Greater Mumbai.
  In the said charge sheet, petitioner Nos. 1-9 was arrayed as
B accused Nos. 5-13.

  3. Reasons for transfer
                •
        According to the petitioners, as per the charge sheet, most
  of the alleged disproportionate assets/properties are situated
C at Rajasthan and most of the witnesses are from Rajasthan,
  Jaipur,· in particular. As far as the petitioners are concerned,
  the allegations against them are of having abetted Shri B.R.
  Meena-Respondent No. 3 herein and Smt. Champa Devi, wife
  of Shri B.R. Meena, Respondent No. 4 herein, by fabricating
D false evidence through preparation of false Agreement to Sell
  in order to help them for justifying the huge cash recoveries.
  All the petitioners are residents of the State of Rajasthan. Most
  of the alleged disproportionate assets are situated at Rajasthan
  and FIRs were registered at Delhi, therefore, the CBI ought to
E have filed charge sheet at Jaipur, Rajasthan. It is also stated
  by the petitioners that since all of them hail from Rajasthan and
  most of the witnesses to be examined are also residents of
  Rajasthan, for convenience, the case pending before the
  Special Judge, CBI, Greater Mumbai be transferred to Jaipur,
F Rajasthan.

        4. Heard Mr. P.H. Parekh, learned senior counsel
    appearing for the petitioners and Mr. H.P. Raval, learned
    Additional Solicitor General, for the contesting respondents.

G       5. Section 406 of the Code of Criminal Procedure
    empowers this 'Court to transfer any case or appeal from one
    High Court to another High Court or from a Criminal Court
    subordinate to one High Court to another Criminal Court of
    equal or superior jurisdiction subordinate to another High Court.
H
 BHIARU RAM AND ORS. v. CENTRAL BUREAU OF 559
  INVESTIGATION AND ORS. [P. SATHASIVAM, J.]
We are concerned about sub-clause (1) of Section 406 which            A
reads as under:

     "406. Power of Supreme Court to transfer cases and
     appeals - (1) Whenever it is made to appear to the
     Supreme Court that an order under this section is
                                                                      8
     expedient for the ends of justice, it may direct that any
     particular case or appeal be transferred from one High
     Court to another High Court or from a Criminal Court
     subordinate to one High Court to another Criminal Court
     of equal or superior jurisdiction subordinate to another High
     Court."                                                          C

It is clear from the abovesaid provision that for the ends of
justice, this Court can transfer any criminal case or appeal to
any place. In order to transfer a case from one State to another
or from one place to another, there must be "reasonable               D
apprehension" on the part of the party to a case that justice may
not be done. Mere allegation that there is apprehension that
justice will not be done, cannot be the basis of transfer. In fact,
in the case on hand, it is not the claim of the petitioners that
they may not get fair justice at Special Court, CBI, Greater          E
Mumbai but they are seeking transfer mainly on the basis of
convenience stating that all of them are hailing from Rajasthan
and majority of the witnesses going to be examined are from
Jaipur, Rajasthan.

     6. In a recent judgment pronounced on 23.07.2010 in              F
D.A. V. Boys Sr. Sec, School Etc. Etc. vs. D.A. V. College
Managing Committee, Transfer Petition (C) Nos. 1233-1237
of 2008, this Court while considering the power of this Court
to transfer suits, appeals etc. on the civil side under Section
25 of Civil Procedure Code has held that,                             G

     "Section 25 of the Code itself makes it clear that if any
     application is made for transfer, after notice to the parties,
     if the Court is satisfied that an order of transfer is
                                                                      H
    560       SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A         expedient for the ends of justice necessary direction may
          be issued for transfer of any suit, appeal or other
          proceedings from a High Court or other Civil Court in one
          State to another High Court or other Civil Court in any other
          State. In order to maintain fair trial, this Court can exercise
B         this power and transfer the proceedings to an appropriate
          Court. The mere convenience of the parties may not be
          enough for the exercise of power but it must also be shown
          that trial in the chosen forum will result in denial of justice.
          Further illustrations are, balance of convenience or
          inconvenience to the plaintiff or the defendant or witnesses
c         and reasonable apprehension in the mind oUhe litigant
          that he might not get justice in the Court in which suit is
          pending. The above-mentioned instances are only
          illustrative in nature. In the interest of justice and to
          adherence of fair trial, this Court exercises its discretion
D         and order transfer in a suit or appeal or other proceedings."

    From the above, it is clear that the above mentioned principles
    have to be kept in mind while dealing with transfer petitions.

E         7. In the case on hand, except convenience, the petitioners
    have not pressed into service any other ground fot 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. Mr. H.P.Raval, learned
    ASG, after taking us through specific averments made in the
F counter affidavit filed on behalf of Respondent Nos. 1 & 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 other place in the State
G 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, Sh. B.R. Meena, was posted
    in Mumbai from 2001 to the end of the check period, i.e.
H
 BHIARU RAM AND ORS. v. CENTRAL BUREAU OF 561
  INVESTIGATION AND ORS. [P. SATHASIVAM, J.]

04.10.2005 and this is the period during which most of the              A
properties were allegedly acquired by him and his family
members.

     8. We have already adverted to the fact that against the
main accused, Shri B.R. Meena, (IRS 1977), Commissioner of              8
Income Tax, Income Tax Appellate Tribunal, Mumbai, a case
has been registered on 29.09.2005 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 members to the extent of Rs.43,29,394/- which were           C
disproportionate to his known sources of income and could not
be satisfactorily accounted for. It further shows that respondent
No.3, during the check period i.e. 01.04.1993 to 04.10.2005,
acquired assets disproportionate to his known sources of
income to the extent of Rs.1,39,39,025/-. The petitioners have
been charge sheeted for commission of offences under Section            D
109 read with Section 193 of the IPC read with Section 13(2)
read with Section 13(1 )(e) of the Prevention of Corruption Act,
1988 for having actively aided and abetted Respondent Nos.
3 to 4 by fabricating false evidence through preparation of false
Agreements to Sell with the object to justify/explain the huge          E
cash recoveries from the residential premises of respondent
No.3. It further reveals that the petitioners entered into false
transactions with respondent No.3 showing receipt of cash
amounts against alleged purchase of immovable properties
from him. The stamp papers were purchased against                       F
registration of case and ·false Agreements to Sell were
prepared in connivance with each other.

     9. A perusal of the charge sheet containing all these
details clearly shows that witnesses to be examined are not             G
only from Jaipur, Rajasthan, but also from various other places
including Mumbai. Though the petitioners may have 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.
                                                                        H
    562     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A 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
B prosecution. In fact, the main accused, respondent Nos. 3 & 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
c cannot be accepted.

         10. In the light of the above discussion and conclusion, the
    transfer petition is dismissed.

    D.G.                               Transfer petition dismissed.