Holding

The transfer petitions were dismissed as the petitioners failed to demonstrate a reasonable apprehension of miscarriage of justice; the trial may continue in Punjab.

Summary

The Supreme Court considered two transfer petitions filed under Section 406 of the Code of Criminal Procedure seeking to move a corruption trial of former Punjab Chief Minister Prakash Singh Badal, his relatives and associates out of Punjab. The petitioners alleged that the accused’s political power, hostile witnesses and a compromised prosecution rendered a fair trial impossible. The Court held that a transfer under s.406 requires a *reasonable* apprehension of miscarriage of justice, not mere allegations, and that the trial could be conducted fairly in Punjab despite the political context. It noted that many witnesses had turned hostile but that this did not, by itself, demonstrate bias sufficient to warrant transfer, and that moving the case would unduly inconvenience other accused and witnesses. Consequently, the petitions were dismissed. The decision reaffirmed the principle that justice must not only be done but be seen to be done, and that Article 21 guarantees a free and fair trial.

Issues considered

Whether the circumstances of political dominance and alleged bias justify a transfer of the criminal case under Section 406 CrPC.
What constitutes a 'reasonable apprehension' of miscarriage of justice sufficient to merit transfer.
Whether the convenience of parties and witnesses is a relevant factor in deciding transfer.
Whether the Supreme Court may intervene in the trial proceedings at this stage.

Legislation cited

Code of Criminal Procedure, 1973s. 173(8), s. 406, s. 407
Constitution of Indias. Article 21
Indian Penal Code, 1860s. 120-B, s. 420, s. 467, s. 468, s. 471
Prevention of Corruption Act, 1988s. 10, s. 13(1), s. 13(2), s. 7, s. 8, s. 9

Subjects

transfer of criminal caseSection 406 CrPCfair trialreasonable apprehensionpolitical influencepublic confidenceArticle 21justice administration

Judgment

[2009] 9 S.C.R. 194

r ,_
A CAPT. AMARINDER SINGH
v.
PRAKASH SINGH BADAL & ORS.
(Transfer Petition (Criminal) No. 235 of 2008)
·-
MAY 14, 2009
B
[K.G. BALAKRISHNAN, CJI., P. SATHASIVAM AND J.M.
PANCHAL, JJ.] >

Code of Criminal Procedure, 1973: ss.406, 407 -
c Transfer petition - Maintainability of - Held: Maintainable
when there is reasonable apprehension on the part of party
to a case that justice would not be done - Mere allegations
that there is apprehension· that justice would not be done
would not suffice - Assurance of fair trial is the first imperative
D of the dispensation of justice - When it is shown that public '
-\Ji'.'

confidence in the fairness of a trial would be seriously
undermined, th_e· aggrieved party can seek the transfer of a
case within the State under s.407 and anywhere in the country
under s.406 :- Free and fair trial is sine qua non of Article 21
E of the Constitution - On facts, accused 11·1ere Chief Minister
. and his relatives and friends - Information furnished showed
that except one or two, others were businessmen, agriculturists,
,).
employed as Special Inspector in U. T. Chandigarh, and one
as Hindi teacher - In that event, if transfer is ordered outside
F the State of Punjab, it would be difficult for the other accused
to attend the Court proceedings on several occasions - Same
hurdle would be for other witnesses both on the prosecution
as well as defence - Transfer petitions dismissed -
Administration of justice - Constitution of India, 1950 - Article
21.
G -
··- ~

The first accused was the Chief Minister of the State
of Punjab during the period 1997-2002. The others
accused were his family members and his close

H 194
CAPT. AMARINDER SINGH v. PRAKASH SINGH 195
BADAL & ORS.
' .,. associates. An FIR was filed against them for alleged acts A
of corruption committed during the tenure of first
accused for collecting black money, owning/possessing
Nammi and Benami movable and immovable properties
in India and abroad. Summons were issued by the
Special Judge, Ropar. The accused persons filed B
application before the Special Judge, Ropar raising
·• question relating to the competence and jurisdiction of
Special Court, which was dismissed. They filed writ
petition which was also rejected. Aggrieved accused filed
SLP before this Court, which was also dismissed. c
As the outcome of the dismissal of SLP, the trial
before the Special Court which was suspended all this
while was to proceed. Election took place in 2007 and the
first accused again assumed power as Chief Minister of
"' Punjab. D

The transfer petitions were filed before this Court on
the ground that trial became a sham and a farce designed
to meet the ends of the accused who were in the
complete control of every aspect of it; the prosecution E
witnesses were becoming hostile; and the investigating
officer virtually resiled from every aspect of investigation.
'' Dismissing the transfer petitions, the Court

HELD: 1.1. A criminal prosecution, if otherwise, F
justifiable and based upon adequate evidence does not
become vitiated on account of ma/a tides or political
mandate of the informant or the complainant. However,
if justifiable and reasonable apprehension of miscarriage
of justice and likelihood of bias is established, G
,. undoubtedly, the proceeding has to be transferred
elsewhere by exercise of power under Section 406
Cr.P .C. For a transfer of a criminal case, there must be a
reasonable apprehension on the part of the party to a
case that justice would not be done. It is one of the H
196 SUPREME COURT REPORTS [2009] 9 S.C.R.

A principles of administration of justice that justice should .
not only be done but it shou1d be seen to be done. On
the other hand, mere allegations that there is
apprehension that justice will not be done in a given case
does not suffice. The court has further to see whether
B apprehension alleged is reasonable or not. The
apprehension must not only be entertained but must
appear to the court to be a reasonable apprehension.
[Para 12] [214-G-H; 215-A~C]

Prakash Singh Badal and Ors v. State of Punjab and Ors.
C (2007) 1 SCC 1; K. Anbazhagan v. Superintendent of Police
& Ors. (2004) 3 SCC 767; Abdul Nazar Madani v. State of
Tami/Nadu and Anr. (2000) 6 SCC 204; Sri Jayendra
Saraswathy Swamigal (//) T.N. v. State of T.N. & Ors.(2005)
8 sec 771, relied on.
D
1.2. Assurance of a fair trial is the first imperative of
the dispensation of justice. The purpose of the criminal
trial is to dispen~e fair and impartial justice uninfluenced
by extraneous considerations. When it is shown that the
E public confidence in the fairness of a trial would be
seriously undermined, the aggrieved 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.
However, the apprehension of not getting a fair and
F impartial inquiry or trial is required to be reasonable and
not imaginary. Free and fair trial is sine qua non of Article
21 of the Constitution. If the criminal trial is not free and
fair and if it is biased, judicial fairness and the criminal
justice system would be at stake, shaking the confidence
of the public in the system. The apprehension must
G appear to the Court to be a reasonable one. [Para 13] [215-
0-F]

2. During the period 1997-2002, the first Respondent
was the Chief Minister. An· FIR was launched on
H 24.06.2003 and chargesheet was filed on 22.11.2003,
CAPT. AMARINDER SINGH v. PRAKASH SINGH 197
BADAL & ORS.
ii' citing 138 witnesses to be examined. A supplementary A
chargesheet was filed on 04.01.2004 citing more
witnesses. The first Respondent came back to power as
the Chief Minister in February, 2007. Out of 138 witnesses
only 59 were examined, out of which 35 turned hostile.
Though, it was highlighted that the first respondent was 8
Chief Minister and all other accused were his relatives
.. and friends, the information furnished showed that except
one or two, others were businessmen, agriculturists,
employed as Special Inspector in U.T. Chandigarh, and
one as Hindi teacher. In that event, if transfer is ordered c
outside the State of Punjab, it would be difficult for the
other accused to attend the Court proceedings on several
occasions. The same hurdle is there for other witnesses
both on the prosecution as well as defence. [Paras 14 and
16) [215-G-H; 216-A; 219-E-F] o
3.1. It is upon the presiding officer/Special Judge and
not this Court to evaluate witnesses and arrive at a
conclusion one way or other depending on the charges
leveled against the accused. It would not be fair on the
part of this court either to assess and arrive at an opinion E
about the same. Even after closing of the prosecution
side by the Public Prosecutor, if the Court wants to
•, examine some more witnesses from the list furnished by
the prosecution, it is for the presiding Judge to take a
decision in accordance with the law and issue F
appropriate direction. [Para 21] [222-H; 223-A-B]

3.2. The analysis of all the materials, the transfer of
the case as sought for; at this stage, is not only against
the interest of prosecution but also against the interest G
of other accused persons, the prosecution witnesses and
the convenience of all concerned in the matter. When the
complainant was examined as PW 56, he disowned his
complaint and asserted that the complaint was not filed
by him though he admitted his signature found therein.
198 SUPREME COURT REPORTS [2009) 9 S.C.R.

A Further, all important witnesses particularly government
officials informed that what they said before the Court was
absolute truth and they were forced to make false
statement at the time of registering the complaint. Similar
transfer petition which was filed before the High Court
B ended in dismissal and it became final. The presiding
officer of the Special Court is conscious of his power and
how to conduct fair trial at the same place. The public
prosecutor cannot act on the dictates of the State
Government. He has to act objectively as he is also an
c Officer of the Court. The Special Court is free to assess
whether prosecution has established its case.
Considering the totality of all circumstances, in a secular,
democratic Government, governed by the rule of law, the
State of Punjab is responsible for ensuring free, fair and
impartial. trial to the accused, notwithstanding, the nature
0
of the accusations made against them. In the case on
hand, the apprehension entertained by the petitioners
cannot be construed as reasonable one and the case
cannot be transferred on a mere allegation that there is
E apprehension that justice will not be done. Taking into
consideration the entire facts and circumstances of the
case and the materials on record, the petitioners have not
made out a case that they have reasonable apprehension
of not availing justice in the State of Punjab. [Paras 23
and 24] [223-E-H; 224-A-E]
F
Case Law Reference:
(2001) 1 sec 1 relied on Para 2
(2004) 3 sec 767 relied on .Para 9
G
(2000) 6 sec 204 relied on Para 10
(2005) s sec 111 relied on Para 11

CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
H (Criminal) No. 235 of 2008.
CAPT. AMARINDER SINGH v. PRAKASH SINGH 199
BADAL & ORS .
..«.
. •>
WITH A

T.P. (CRL) No. 179 of 2008.

Altaf Ahmed, P.S. Narasimha, Gaurav Agarwal and Abhijat
P. Medh for the Appellant.
B'
Harish N. Salve, Ashok Desai, Dr. Rajiv Dahavan, Ravi
-4. Shanker Prasad, C.S. Vaidyanathan, Vikram Chaudhari, Nikhil
Jain, Aparajita Singh, Madhur Seth, D. Mahesh Babu Ajay Pal,
Jaishree Anand, Ajay Bansal, Kuldip Singh, Gagan Deep
Sharma and Sunil Kumar Jain for the Respondents. c
The Judgment of the Court was delivered by

P. SATHASIVAM, J. 1. These two transfer petitions have
been preferred under Section 406 of the Code of Criminal
~
Procedure, 1973 seeking transfer of the case titled as "State D
•
of Punjab vs. Prakash Singh Badal and Ors." relating to FIR No.
15 dated 24.06.2003 filed under Sections 420, 467, 468, 471
and 120-8 of the Indian Penal Code, 1860 read with Sections
7,8,9, 10, 13 (1) and (2) of the Prevention of Corruption Act,
1988 pending in the Court of Special Judge, Ro par to any other E~
suitable Court of competent jurisdiction in New Delhi.

i'
2. Capt. Amarinder Singh is the petitioner in Transfer
Petition No. 235 of 2008. Mis Jeet Mohinder Singh, Sukhpal
Singh, Gurpreet Singh and Mangat Ram Bansal who are all
F
members of Legislative Assembly are the petitioners in
Transfer Petition No. 179 of 2008. Respondent Nos. 1 to 10
are the accused in the case relating to FIR No. 15 and 11th
Respondent is the State of Punjab. Since, facts are common
in both the transfer petitions, we propose to dispose of the
G
same by this common judgment. For convenience, reference
to parties will be as arrayed in Transfer Petition No. 235 of
2008.

3. Brief facts, as stated in the Transfer Petition No. 235 of
2008, are as follows:- H
200 SUPREME COURT REPORTS [2009] 9 S.C.R.

A (a) FIR No. 15 dated 24.06.2003 filed under Sections t
420. 467, 468, 471 and 120-B of Indian Penal
Code, 1860 read with Sections 7, 8, 9, 10, 13(1) ~ ...
and (2) of the Prevention of Corruption Act, 1988 )
was registered at the Police Station Vigilance
B Bureau, Flying Squad, Mohali on the complaint of
one Mr. Balwant Singh son of Mr. Sukhdev Singh.
This FIR was filed for offences committed by Mr. ~
Prakash Singh Badal (Accused No.1 ), Mr. Sukhbir
Singh Badal (Accused No.2) and other family
c members for alleged acts of corruption committed
during the previous tenure of Accused No.1 as
Chief Minister of the State of Punjab for the period
1997-2002, for collecting black money, owning/
possessing Nammi & Benami movable and
immovable properties both in India and abroad. )'
D 4
Summons were issued by the Special Judge,
Ropar, Punjab on 01.12.2003.

(b) Against the summons, Mr. Prakash Singh Badal
and Mr. Sukhbir Singh Badal filed a Special Leave
E Petition being SLP (Crl.) No. 5252 of 2003. Along
with these proceedings, they also filed a Transfer
Petition before this Court being T.P. (Crl.) No. 307
of 2003 challenging, inter alia, the jurisdiction of the
Special Judge, Ropar. When both the petitions
F came up for hearing before this Court on
12.12.2003, the Special Leave Petition as well as
the Transfer Petition were withdrawn by the
Accused..;Petitioners. The above-said Transfer
Petition was withdrawn with liberty to file any other
G Transfer Petition in future and the same will be
considered on its own merits as pleaded in that -1
petition.

(c) Mr. Prakash Singh Badal and Mr. Sukhbir Singh
Badal having withdrawn the above Special Leave
H
CAPT. AMARINDER SINGH v. PRAKASH SINGH 201
BADAL & ORS. [P. SATHASIVAM, J.]
_..
... Petition and Transfer Petition, moved an A
application on 16.01.2004 before the Special
-. Judge, Ropar raising question relating to the
competence and jurisdiction of the Special Court.
It was submitted that the Special Court had no
jurisdiction in the matter of FIR No. 15 of B
. 24.06.2003 and that it could neither proceed nor
adjudicate upon the said matter. By order dated
29.05.2004, the learned Special Judge, dismissed
the said application holding that it had the requisite
jurisdiction in the matter. Aggrieved by that order, c
on 30.06.2004, the accused filed CWP No. 9410
of 2004 before the High Court of Punjab and
Haryana at Chandigarh.

(d) The High Court heard the said Writ Petition and
after considering all the legal issues raised by the D.
accused, rejec.dd the same by a detailed judgment
dated 02.09.2004 directing the Special Judge to
conclude the trial as expeditiously as possible and

... in any case not later than a year from the
pronouncement of the said judgment. Being
aggrieved by this judgment, the accused filed
E

Special Leave Petition being SLP (Civil) No.
I, 19640 of 2004 before this Court.
.....
(e) By this time, on the issue of law relating to sanction F
for prosecution in such cases, several Special
Leave Petitions were filed before this Court by
various Politicians across the country in separate
matters relating to the jurisdiction of Special Courts
dealing with such allegations of corruption, the
G
v'
cognizance and trial of such offences relating to
• ~
corruption and other issues as to the requirement
of sanction for prosecution. The entire batch of
matters and all issues on law were decided by this
Court by a detailed judgment dated 06.12.2006 in
H
202 SUPREME COURT REPORTS [2009] 9 S.C.R. ~)

.....
A the matter of Prakash Singh Badal and Ors vs. f'

State of Punjab and Ors., (2007) 1 SCC 1 and the ,-,
said special leave petitions filed by the accused
came to be dismissed by this Court. As a natural
outcome of this dismissal, the trial before the
B Special Court, which had been suspended all this
while was to proceed.
...
(f) Elections were to take place in the month of
February, 2007 in the State of Punjab. Hence, the
Accused (who were also contesting election)
c sought time before the learned Special Judge and
requested that the trial be taken up after the election
is over and the result is announced. Thereafter,
Accused No.1 assumed power and position as the
Chief Minister of Punjab the entire criminal trial took
D a completely different turn. ~

(g) On 15.02.2007, an application was moved by one
of the Accused regarding crucial witnesses and on
21.02.2007 another application was filed by the
E accused for discontinuation/termination of further
proceedings. Although both these applications
....
would have serious ramifications on the case of the
prosecution and the continuation of the trial, neither )·
a cursory reply was filed by the public prosecutor .....
F to the above applications nor were they objected
to. Thus at this primary stage itself it can be seen
that the powerful position of Accused No.1
occupying the highest political chair in the State as
Chief Minister of Punjab was being brought down
in full measure on the prosecution.
G
(h) The allegations against the accused were primarily _. .
that of corruption and of amassing assets which
were disproportionate to their income. To support
this case, one of the primary documents being
H relied on by the prosecution was a report prepared
.·- CAPT. AMARINDER SINGH v. PRAKASH SINGH
BADAL & ORS. [P. SATHASIVAM, J.]
203

-·
.Jr
by the Income-Tax Department as regards the A
income/assets and other financial details of the
........
accused. Despite this document being absolutely
necessary to prove the case of the prosecution, on
23.02.2007 the Investigating Officer, Mr. Surinder
Pal Singh, filed an affidavit before the Special B,
Court/trial Court stating that the report prepared by
the Income-Tax Department ought not to be
considered by the Special Court at the stage of
framing of charge. The Investigating Officer, clearly
to favour the accused, virtually throttled the case of c
~ the prosecution with his own hands by conceding
before the Special Court/Trial Court that this crucial

·-
~

piece of evidence in the form of the Income-Tax
report ought not to be considered.

(i) The prosecution and the free and fair trial of the D
·- matter was already t...~ing further compromised, is
· evident from the fact that while the public prosecutor
continued to fail to tender a reply to the above
crucial applications filed by the Accused. The
accused themselves had stopped bothering to even E
appear before the Special Court. By this time,
Accused No.1 Mr. Prakash Singh Badal had
-\, formally occupied the chair of Chief Minister of
Punjab and was also holding the Portfolio of the
Department of Home. F
(j) When the matter came up for hearing on
01.03.2007 and the Special Public Prosecutor Mr.
Amar Preet Singh Deal had closed his arguments,
an application was moved by the Public Prosecutor
G
Mr. Pardeep Mehta under Section 173 (8) of the
_,. -.- Code of Criminal Procedure, 1973 seeking
permission to conduct "further investigation". While
strangely such an application was made after the

- -,
Special Public Prosecutor had concluded his
H-
204 SUPREME COURT REPORTS [2009] 9 S. C.R.
.
,,
I,
A arguments, it was further made evident that the ""
.~

Prosecution was under the pressure of, inter alia,
'
Accused No.1 who was now the Chief Minister of If"'"',

Punjab to seek a medium through which the case
of the prosecution against the Accused could be
B weakened. This would naturally be under the garb
of such "further investigation" which had now
become "necessary".
._}.

(k) Again when the matter came up for hearing on
06.03.2007, neither of the accused was present in
c the Court in spite of the express directions of the
Special Court. As far as the applications were
concerned, a vague and perfunctory reply was filed
by Mr. Pardeep Mehta, the Public Prosecutor,
which in fact did not even deal with the contentions
-·
D set out in the said application. There was not even '
a word of objection or opposition to the said """'
application. As a matter of fact, the reply filed by
the prosecution requested the Court to adjourn
these applications and keep them sine die.
E
(I) The public prosecutor Mr. Pardeep Mehta, who had
been protecting the interest of the Accused was
now made "in charge" of the case, obvim1sly by the
J
Government headed by Accused No.1. Further it
may be important to note that by now, Accused
F
No. 1 was now in charge of Home Department and
more particularly, the Vigilance Department.

(m) When the matter once again came up for hearing
on 07.03.2007, the Court was constrained to note
G that no proper/final reply had been filed by the
Prosecution with regard to the applications filed by _.
~
accused inter alia for discontinuation/termination.

(n) Despite a complete lack of assistance and interest
H on the part of the prosecution, the Special Judge,
CAPT. AMARINDER SINGH v. PRAKASH SINGH 205
BADAL & ORS. [P. SATHASIVAM, J.]
_,
Ropar framed charges against the Accused A
-I < including Mr. Prakash Singh Badal (Chief Minister
of Punjab), Mr. Shukhbir Singh Badal (Son of the
Chief Minister) and other members of the family and
known associates under Sections 13 (1 )(a), 13(2),
13(1 )(e), 8,9 and 14 of the Prevention of Corruption B
Act, 1988 read with Section 120-B of the Indian
Penal Code, 1860. On 09.03.2007, the Special
Judge dismissed the application filed by the Public
Prosecutor Mr. Pardeep Mehta for permission to

...'
conduct "further investigation" under the provisions c
of Section 173 (8) of the Cr.P.C. along with various
.._ other applications filed by the Accused with regard
to directing the prosecution to clear their stand on
the statements of the witnesses and application for
termination of further proceedings and the challan D
._
in view of the alleged infirmity in the proposed
charges to be framed against the accused.

(o) Despite all the damage that could have done
through the prosecution after the framing of the
.... charge, the Government of Punjab, Department of E
Home Affairs and Justices issued Notification
No.21 /17/2000-3/JUDL (1)/1418 dated
i, 10.05.2007/11.05.2007 canceling the
appointments of all existing special public
prosecutors in the case. Ironically the said F
Notification was said to be passed with immediate
effect in public interest. Thus Accused No.1 who
was holding charge of the Home Ministry portfolio
was in a position to actually decide as to who
should be his prosecutor. G
...... .. (p) All the eleven officials who appeared as witnesses
despite admitting to their respective signatures on
their statements under Section 161 of the Criminal
( Procedure Code, 1973 resiled from the contents
~
H
206 SUPREME COURT REPORTS [2009] 9 S.C.R.

,_
A thereof. It may be seen that if, fear of or a sense of
favour towards the Accused had driven the above ~
witnesses who are officials of Departments such as
the Vigilance Bureau, Irrigation and PWD
Department to resile from their sworn statements,
B there could be no hope of truth or assurance of
safety for the witnesses in the case.

(q) When the prosecution further continued on
20.08.2007, three more prosecution witnesses
were examined and they all resiled from the
c statements made before them. t

(r) The conduct of the Prosecution and the manner in __ ..
which the Accused has struck at the heart of it and
made it defenceless can be seen from the fact that
D in the course of such trial, it is common practice for ~-

the prosecution to require examination of the
investigating officer at the end of evidence so that
such investigating officer may prove the statement
of the other witnesses even if they were to have
E resiled from the same in the course of examination.
However, in the present case, despite the fact that , I
...
some prosecution witnesses had already started
resiling from their statements, the, prosecution )··
deliberately made an application for ~xamining the
F investigating officer Mr. Surinde~ Pal Singh,
prematurely and at the beginning of such
proceedings. If such Investigating Officer was to be
examined at this early stage, then there would be
nobody left to prove the statements of prosecution
witnesses who were resiling. However, this
G

(s)
application was dismissed by the Special Court/
Trial Court vide order dated 20.08.2007.

The manner in which the public prosecutor Mr.
-+
-
Pardeep Mehta was covering up fqr the accused
H and helping them is made further clear when the
CAPT. AMARINDER SINGH v. PRAKASH SINGH 207
BADAL & ORS. [P. SATHASIVAM, J.]
j. State of Punjab actually appealed the above order A
of the Special Court/Trial Court dated 20.08.2007
dismissing the above application which was so
done by challenging the order before the High Court
of Punjab and Haryana at Chandigarh vide Criminal
Misc. No.45232-M of 2007 under the provisions of 8
Section 482 of Code of Criminal Procedure
praying that the application moved by the·
prosecution to examine the investigating officer
before proceeding further be allowed. By order
dated 14.11.2007, the High Court directed the c
Special Court to consider afresh any such
application that may be filed by the public
·- prosecutor in the near future.

(t) The complete and deliberate breakdown of the
prosecution case became further clear when on D
17.01.2008 the Complainant Mr. Balwant Singh too
resiled from his affidavit by stating that he had no
knowledge of the contents of the Complaint which

-
. .

~
had led to registration of the said FIR No.15 dated
26.04.2006 and despite acknowledging his
signatures on each and every document of the
complaint and the accompanying affidavit, stated
that he had in fact signed these papers for the
E

purchase of a vehicle.
F
(u) Finally on 04.02;2008, the prosecution finally
succeeded in persuading the trial Court to examine
the Investigating Officer Mr. Surinder Pal Singh. The
Investigating Officer Mr. Surinder Pal Singh in his
examination-in-chief has virtually resiled from every
G
aspect of the investigation; stated that he did not
... record the witness statements in question and
wherever his signatures appear on the record of the .
case was because "he signed where he was told
'• to".
' H
208 SUPREME COURT REPORTS [2009] 9 $.C.R.

'-
,,
A (v) This trial is now a sham and a farce designed to
meet the ends of the accused who are in complete
control of every aspect of it.

4. As against the above allegations, the respondents have
filed response among which let us refer the stand taken by the
B -
first respondent, namely, Mr. Prakash Singh Badal:

(a) The transfer petition is grossly belated. No ;
explanation has been offered as to why the
petitioner has chosen to wait until the entire
c "'
prosecution evidence which commenced from
18.07.2007 stood concluded in March, 2008. The ,,
'
. case is now at the stage of consideration of ./

recording statements under Section 313 of Criminal ~-

Procedure Code. The petition is clear!y politically ~

D motivated and an attempt to scuttle the trial which
is at its fag end.
....
(b) A close relation of Capt. Amarinder Singh, namely,

..
Mr. Simranjit Singh Mann, had filed a transfer
petition in the High Court being CWP No. 11399/
1

E
2007 for transfer of the case from Ropar to any
other Court outside the State of Punjab on the basis
of similar contentions, regarding the alleged
impossibility of a free and fair trial in• the State of J
Punjab. The said transfer petition was dismissed
F by the High Court, vide judgment and final order
dated 25.09.2007, observing that thene is no basis
for the apprehension expressed by the writ
petitioner. This judgment and final order of the High
Court was never challenged.
G -
(c) All the alleged witnesses in the case were put up ....
by the present petitioner, as the then Chief Minister
of the State, in order to politically di$credit the 1st
respondent and to create a defence for himself in
H respect of both civil and criminal proceedings for \,.-
--it
CAPT. AMARINDER SINGH v. PRAKASH SINGH 209
BADAL & ORS. [P. SATHASIVAM, J.]

1. defamation instituted by the 1st respondent against A
the petitioner herein. Viewed in this context. the
deposition of the prosecution witnesses before the
Trial Court is clearly truthful, as they have
categorically exposed the manner in which they
were cited as false witnesses and subjected to B
threat and coercion at the instance of the petitioner
herein.
-(

(d) Various events set out in para 7 of the affidavit
establish that the entire prosecution is vitiated by
C'
mala fide. It is borne out from the record that the
petitioner, after assuming the office of Chief
Minister in February 2002, had embarked upon a
witch hunt against the 1st respondent and his family
members. To this end, he retained to himself the
portfolios of Home and Vigilance. Various officials D
either working in the Vigilance Bureau or in various
other Government Departments were pressurized
and cited in the list of witnesses, and. a wholly
baseless challan was presented.
E
(e) In para 12, details were furnished about the number
~
of prosecution witnesses, their status and their
statements. In para 13, details have been furnished
~-
about various documents placed before the trial
Q Court. The above-mentioned details reveal the mala F
fides behind the trial of the 1st respondent and other
accused. The petitioner has filed the present
petition to somehow scuttle the trial.

(f) The statement of official witnesses under Section
161 Cr.P.C. are never signed by the witnesses and G

t
had categorically stated that on 1st, 2nd and 03rd
November, 2003 they did not go to any place for
making any assessment. They had gone only in
July, 2003 and submitted their reports. These
reports, which would have established the correct H
·~~-
.'l
::;-.""~
.~

210 SUPREME COURT REPORTS [2009] 9 S.C.R.

A value of the property of the 1st respondent did not :t
find approval with the Vigilance Bureau and the
· same have been concealed.

(g) As regards the allegation of non-appearance of the
accused in the Court, Smt. Surinder Kaur Badal,
B
wife of Mr. Prakash Singh Badal was granted
permanent exemption from personal appearance
by the trial Court, way back on 21.02.2004 when )-
the petitioner Mr. Amarinder Singh himself was
heading the Government. The first respondent had
c appeared on several dates including 1;3.03.2007
and 04.07.2007 when charge sheet and amended
• I

charge sheet was served upon him. Thereafter, he
had been seeking exemption from' personal
appearance by making appropriate application. He
D had been granted exemption on specific dates of •...
hearing by the trial Court after due application of
mind. Mr. Sukhbir Singh Badal appeared on most
of the dates of hearing in the trial Court barring a ,,
few where he was granted exemption from personal
E appearance by the trial Court. . ,,...
(h) Regarding the allegation of manhandling Mr. Amar '
Preet Singh Deal, the 1st respondent has _ ...
specifically denied the same and neithE!ff Mr. Amar
F Preet Singh Deol nor any other person ever raised
1
~
l.lil
any issue before the trial court. Even in the transfer
petition filed by Mr. Simranjit Singh Mann before the
High Court, no such averment was ·ever made
regarding the alleged manhandling of Mr. Amar
Preet Singh Deal on 28.02.2007. Likewise, the 1st
- G I

respondent has denied the allegation that
supporters and party workers indulged in slogan i"
shouting leading to a terror filled atmosphere in
which no free and fair trial can ever1 proceed or
conclude. It is pointed out that no cqmplaint has
H
CAPT. AMARINDER SINGH v. PRAKASH SINGH 211
BADAL & ORS. [P. SATHASIVAM, J.]
been made to the Presiding Judge nor there has A
been any report in the Press about the same.

(i) The entire matter is now under the judicial scrutiny
before the trial Court. There is no allegation in the
petition against the conduct of the proceedings in
the Court or against the Presiding Officer.
8

5. In the light of the above pleadings, we have heard Mr.
Altaf Ahmed and Mr. P.S. Narasimha, learned senior counsel
for the petitioners and Mr. Harish N. Salve, Mr. Ashok Desai,
Dr. Rajiv Dhavan, Mr. Ravi Shanker Prasad and Mr. C.S. C
Vaidyanathan, learned senior counsel for the respondents.

6. After taking us through the entire materials including the
complaint, statement of witnesses, proceedings, various orders
of the Court and steps taken and the alleged failure or lapse D
by the special Public Prosecutor, Mr. Altaf Ahmed and Mr. P.S.
Narasimha, learned senior counsel appearing for the petitioners
mainly submitted that in view of the fact that the first accused
being the Chief Minister and his son being a Deputy Chief
Minister, others are being either family members of the Chief
Minister or his close associates, there cannot be any fair trial. E
They also contended that in view of the attitude of the
Government terminating all the special counsel/special public
prosecutors except one Mr. Pardeep Mehta, it is undesirable
to continue the prosecution in any place in the State of Punjab.
They finally contended that the conduct of the Investigating F
Officer, namely, Mr. Surinder Pal Singh in disowning his
statement and conceding that he put his signature under
pressure clearly shows that there cannot be a fair trial and
nobody is interested to proceed with the prosecution case. On
the other hand, learned senior counsel appearing for the G
respondents/accused disputed all the allegations/
apprehensions raised by the petitioners in conducting fair trial.
After taking us through the statement of the witnesses
examined so far and documents placed, it is stated that it
cannot be construed that there was any inaction on the part of H
212 SUPREME COURT REPORTS [2009) 9 S.C.R.

'):.
{'

A the prosecution or public prosecutor. According to them, there
is no basis for such apprehension and witnesses have clarified
their statements and asserted that their statements before the
Court are true. They also highlighteq their position at the
relevant time and confirmed that they had nothing to do with the
B allegations made against them. It is further pointed out that
those witnesses clarified that they were not under pressure. It I
is also pointed out that inasmuch as most of the witnesses so
far examined resiled one after another and only in this context,
).--
1
public prosecutor informed the Court that there i$ no purpose
in continuing the prosecution.
c
7. The above transfer petitions have been filed under
Section 406 of the Code of Criminal Procedure, 1973 Which
is reproduced below for ready reference:

D "406. Power of Supreme Court to transfet cases and ~
. '
appeals.- (1) Whenever it is made to appear· to the
Supreme Court that an order under this section is )-
expedient for the ends of justice, it may direct that any \-
particular case or appeal be transferred from one High
E 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. )·

(2) The Supreme Court may act under this section only on
F the application of the Attorney-General of India or of a party
~
interested, and every such application shall be made by
motion, which shall, except when the applicant is the
Attorney-General of India or the Advocate-General of the
State, be supported by affidavit or affirmation.
G
(3) Where any application for the exercise of the powers i
conferred by this section is dismissed, the Supreme Court
may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of
compensation to any person who has opposed the
H
CAPT. AMARINDER SINGH v. PRAKASH SINGH 213
BADAL & ORS. [P.. SATHASIVAM, J.]
1,
application such sum not exceeding one thousand rupees A
as it may consider appropriate in the circumstances of the
case."

Sub-section (1) makes it clear that for the ends of justice it
would be open to this Court to transfer any case or appeal from B
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.

8. Before considering the rival claim of both parties, it is c
useful to refer some of the decisions of this Court relating to
transfer of a criminal case from one State to another.

9. In K. Anbazhagan vs. Superintendent of Police & Ors.
(2004) 3 SCC 767, this Court had an occasion to consider the D
transfer of a criminal trial from the State of Tamil Nadu to
another State, a two Judge Bench, after going into the factual
details, particularly, the change of Government, attitude of the
public prosecutor and finding that there is justifiable and
reasonable apprehension of miscarriage of justice as well as
E
likelihood of bias, allowed the Transfer petition pending on the
file of Xlth Additional Sessions Judge (Special Court No. 1)
*.. Chennai, State of Tamil Nadu to the State of Karnataka. While
directing the transfer this Court permitted the State of Karnataka
in consultation with the Chief Justice of the High Court of
F
Karnataka to appoint a senior lawyer having experience in
criminal trials as Public Prosecutor to conduct those cases. In
the same order, the Court observed that the public prosecutor
will be at liberty to apply that the witnesses who have been
recalled and cross-examined by the accused, who have resiled
from the previous statement, may be again recalled. The Court G
-/. - further observed that the public prosecutor would be at liberty
to apply to the Court to have these witnesses declared hostile
and seek permission to cross-examine them.

10. In Abdul Nazar Madani vs. State of Tamil Nadu and H
214 SUPREME COURT REPORTS [2009] 9 S.C.R.

A Anr. (2000) 6 SCC 204, the issue dealt with was for transfer
of criminal case from one State to another. In the said decision
it was reiterated that the purpose of the criminal trial is to
dispense fair and impartial justice uninfluenced by extraneous
considerations. When it is shown that public confidence in the
s fairness f'lf a trial would be seriously undermined, any party can
seek the transfer of 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
c conjectures and surmises. If it appears that the dispensation
of criminal justice is not possible impartially and objectively and
without any bias, before any court or even at any place, the
appropriate court may transfer the case to another court where
it feels that holding of fair and proper trial is conducive.
However, no universal or hard and fast rules can be prescribed
0
for deciding a transfer petition which has always to be decided
on the basis of the facts. of each case. Convenience of the
parties including the witnesses to be produced at the trial is
also a relevant consideration for deciding the transfer petition.
E After· perusing the figures furnished and considering all the
materials, it was concluded that the transfer petitions were
totally misconceived and dismissed the same.

11. In Sri Jayendra Saraswathy Swamigal (//) T.N. vs. ..>
State of T.N. & Ors. (2005) 8 SCC 771, this Court has held
F that if there is reasonable apprehension on the part of a party
to a case that justice may not be done, he may seek transfer
of the case. It also held that the apprehension and parties must
be a reasonable one and the case cannot be transferred on a
mere allegation that there is apprehension that justice will not
G be done.

12. It is a well-established proposition of law that a criminal
prosecution, if otherwise, justifiable and based upon adequate
evidence does not become vitiated on account of mala tides
H or political mandate of the informant or the complainant.
.. CAPT. AMARINDER SINGH v. PRAKASH SINGH 215
BADAL & ORS. [P. SATHASIVAM, J.]
"°'..., However, if justifiable and reasonable apprehension of A
miscarriage of justice and likelihood of bias is established,
undoubtedly, the proceeding has to be transferred elsewhere
by exercise of power under section 406 Cr.P.C. For a transfer
of a criminal case, there must be a reasonable apprehension
on the part of the party to a case that justice will not be done. 8
It is one of the principles of administration of justice that justice
should not only be done but it should be seen to be done. On
the other hand, mere allegations that there is apprehension that
justice will not be done in a given case does not suffice. In other
words, the court has further to see whether apprehension c
alleged is reasonable or not. The apprehension must not only
be entertained but must appear to the court to be a reasonable
apprehension.

13. Assurance of a fair trial is the first imperative of the
.. dispensation of justice. The purpose of the criminal trial is to D
dispense fair and impartial justice uninfluenced by extraneous
considerations. When it is shown that tile P~-~blic confidence in
the fairness of a trial would be seriously undermined, the
aggrieved party can seek the transfer of a case within the State
under Section 407 and anywhere in the country under Section E
406 Cr.P.C. However, the apprehension of not getting a fair and
impartial inquiry or trial is required to be reasonable and not
imaginary. Free and fair trial is sine qua non of Article 21 of
the Constitution. If the criminal trial is not free and fair and if it
is biased, judicial fairness and the criminal justice system would F
be at stake, shaking the confidence of the public in the system.
The apprehension must appear to the Court to be a reasonable
one.

14. In the light of the above principles, let us analyse the
G
claim of both parties and find out whether the criminal trial is
to be transferred to other State. It was pointed out that with
respect to offences committed during the period between
1997-2002, the time when the first Respondent was the Chief
Minister, an FIR was launched on 24.06.2003 and chargesheet
H
216 SUPREME COURT REPORTS [2009] 9 S.C.R.
)'-
,...
A was filed on 22.11.2003, citing 138 witnesses to be examined.
A supplementary chargesheet was filed on 04.01.2004 citing
more witnesses. The first Respondent came back to power as .J

I
the Chief Minister in February, 2007. Out of 138 witnesses only '\
59 were examined, out of which 35 turned hostile. Mr. Altaf
B Ahmad, learned senior counsel for the petitioner pointed out
that the aspect of selective calling up of witnesses, dropping
crucial witnesses, most of the witnesses turning hostile one after .>
another, non-examination of witnesses connected with the
transaction and not citing certain witnesses hostile or cross
c examining them when they resile from the earlier statements,
has virtually rendered the trial farcical. Though, in a transfer
petition we are not expected to go into the veracity of the
statement of the witnesses and their evidential value, since both
side cited several instances, we may refer the same without
expressing specific opinion on them. According to the counsel ).
D
for the petitioners insofar as valuation of the properties of the
accused, though, one Mr. Bharat Shah, Challan Witness No.
114 w~o had visited the properties of the Accused for the
purpose of valuation and assessment of the assets of the
accused and had recorded a statement under Section 161,
E was dropped by the prosecution. On the request of the police
that they would not help the case of the prosecution it was
pointed out that on the same reasoning Mr. Surinderpal Mitra, .'t
Challan Witness No. 116 and Mr. SJ~.. Srivastava were
dropped by the prosecution. Likewise, it was pointed out that
F Mr. Sukhdip Singh Dhindsa, Mr. S.K. Jain, Mr. AK. Goel, Mr,
Gurpratap Singh, Mr. Sawtantar Singh, and Mr. Vinarjit Singh
were not examined. In the same manner, in respect of allegation
relating to Benami transaction some of the prosecution
witnesses were either dropped or declared as hostile. It was
G contended that same was the position in respect of charge
relating to bribery; flow of illegal wealth and black money of the
accused persons.

15. Though, Mr. Altaf Ahmad and Mr. P.S. Narasimha took
us through their evidence let in before the Special Court and
H
CAPT. AMARINDER SINGH v. PRAKASH SINGH 217
BADAL & ORS. [P. SATHASIVAM, J.]
1;
their statement recorded earlier under Section 161 Cr.P.C. Mr. A
Harish Salve, senior counsel appearing for one of the
Respondents by taking us through the same materials
demonstrated that there is no basis for the apprehension
expressed by the petitioners. It was pointed out that initially
Capt. Amrinder Singh was also a member of the same party B
along with Respondent No. 1 wtro subsequently left the
Shiromani Akali Dal on being denied to contest the Assembly
Election in 1997. Since then, the petitioner held Mr. Prakash
Singh Badal who was the president of the Shiromani Akali Dal
at that time, to be responsible for his fate. The petitioner had c
subsequently joined the Congress. It was further pointed out that
in September, 2001 in the Assembly elections in Punjab, the
petitioner wrote a letter to Mr. Badal alleging that the latter had
amassed properties in India and Abroad which were
disproportionate to his known sources of income. The said
""'- D
letter was published in the Press and wide publicity was given
for the purpose of electoral gain in February, 2002. A criminal
cony>laint for defamation was filed by Mr. Badal's son Mr.
Sukhbir Singh Badal, 2nd Respondent herein against the
petitioner. It was pointed out that in the same month i.e. in 2002,
the Congress party came to power in Punjab and the petitioner
E
was appointed as the Chief Minister and retained with himself
-t.. the portfolio of Home and Vigilance. It was further pointed out
that on account of the persistence of the petitioner with his
defamatory allegations, the respondent herein also filed a ·
criminal complaint for defamation against the petitioner. In both F
the said criminal complaints, the petitioner had been the same
and served with notice of accusation by the Trial court to face
the trial. It is claimed that FIR dated 24.06.2003 is almost a
verbatim copy of the letter dated 04.09.2001 written by the
petitioner. In the counter affidavit filed before us the first G
,.I,.
respondent has highlighted various other proceedings between
the respondents and the petitioner. In the same counter affidavit
the evidence given by prosecution witnesses were catalogued
and asserted that those witnesses have not supported the case
of the prosecution and also emphasized the manner in which H
218 SUPREME COURT REPORTS [2009] 9 S.C.R.

t
A the prosecution set up the false witnesses, pressurized and
threatened them. It is the claim of the learned senior counsel ., >
appearing for the petitioners that contrary to all known practice •
of a conduct of a trial in which the prosecution examines the ~

Investigating Officer at the end of the prosecution evidence so
B that the statements of hostile witnesses may be proved, in the
cases on hand the pub'lic prosecutor, Mr. Pardeep Mehta
.>
prematurely filed an application for examining the Investigating .,
Officer, Mr. Surinaer Pal Singh. By pointing out the same,
learned senior counsel for the petitioners contended that
c prosecution was so keen that the Investigating Officer be
examined out of turn. It is seen that the said application filed
by the public prosecutor was dismissed by the trial Court by
~
order dated 20.08.2007. The special Court after finding that in
case other witnesses turned hostile then Investigating Officer
is to prove their statement, therefore, it will be appropriate if I
D
the Investigating Officer is ev:amined after examination of the >··
remaining material witnesses. By saying so, the special Court
disposed of the application filed by the public prosecutor.
Against the said order, the State of Punjab appealed before
the High Court of Punjab & Haryana in CrL Misc. Application
E No. 45232-M/07. The materials placed show that in the
meantime before the Special Court three more witnesses were
examined and they also turned hostile. They are: 1. PW 34: Mr. _,,..
Rajinder Singh Garewal, Deputy Director, Horticulture 2. PW .....
35: Mr. Rajinder Singh, Sub Divisional Engineer, Irrigation,
F Bhatinda and 3. PW 36: Mr. Vijay Kumar, Junior Engineer,
Drainage.· Ultimately, the High Court' disposed of Crl. Misc.
Application and passed an order to the effect that in the light
of any changed circumstances and/or subsequent events, the
public prosecutor deems it appropriate to seek permission of
G the learned Special Judge to examine the Investigating Officer
.,..~
before the remaining witnesses are examined, he may move
another application to this effect and if such an application is
moved, the learned Special Judge was directed to consider
and dispose of the same in accordance with law by ignoring
"'.).
H the previous order dated 20.08.2007. Even thereafter, three
CAPT. AMARINDER SINGH v. PRAKASH SINGH 219
' BADAL & ORS. [P. SATHASIVAM, J.]
~ more witnesses were examined on 26.11.2007 & 27.11.2007 A
..... and they too turned hostile. They are - 1. PW 43: Mr .
Amandeep Singh Brar, Executive Engineer, PWD 2. PW 44:
Mr. Sukdhip Singh Dhindsa, Executive Engineer, PWD and 3.
PW 46: Mr. Surender Singh, Cable Operator. It is further seen
that on 04.01.2008 two more witnesses were examined who 8
also turned hostile. They are - 1. PW 50: Mr. Jit Singh,
Agriculturist and 2. PW 52: Mr. Gurinder Pal Singh, lnspe~tor
General of Police, Railways. It was highlighted that those
witnesses i.e. PWs 9 to 14, 35 & 36 had not even seen Salasar
Farm House, where their services were alleged to have been c
utilized. Likewise, the other witnesses PWs 1 to 7, 15, 23, 24,
27, 28, 43, 44 and 53 have denied their role in assessing the
-- properties on 1st , 2nd and 3rd November, 2003 i.e. the date
of the assessment alleged by the prosecution. Those witnesses
filed separate affidavit in the High court stating that on 1st, ,
0
" 2nd , 3rd November 2003, when the alleged assessment said
to be taken place, they were doing their official work at their
respective offices. These witnesses admitted the fact that they
assessed those properties in July, 2003, but their report did
not find approval of the Vigilance Bureau.
E
'16. Though, it was highlighted that the first respondent is
a Chief Minister and all other accused are his relatives and
-i....
... friends, the information furnished show that except one or two
others are businessmen, agriculturists, employed as Special
Inspector in U.T. Chandigarh, and one as Hindi teacher. In that F
event, if transfer is ordered outside the State of Punjab, it would
be difficult for the other accused to attend the Court
proceedings on several occasions. The same hurdle is there
for other witnesses both on the prosecution as well as defence.
G·
17. It is relevant to point out that the complainant himself,
,., ..., namely, Mr. Balwant Singh who was examined as PW 56
resiled stating that the affidavit supporting his private complaint
was not filed by him. He asserted that he had signed these
... papers for purchase of a vehicle. On the same day 17.01.2008/
H
220 SUPREME COURT REPORTS [2009] 9 S.C.R. ......

A 18.01.2008 when the complainant resiled, PW 53: Mr. Amarjit ;\
Singh, SP Vigilance Bureau and PW 55: Mr. Jagdish Singh ..,,-
Khaloan, SP, Ferozepur who were examined on the same date
also turned hostile. On the next hearing date i.e. 05.02.2008
when the prosecution examined the Investigating Officer, in his
B examination in chief, he resiled ,from every aspect of the
investigation stating that he did not record the witness
statements, he signed when he was told to and even the charge
sheet was prepared on the computer of a Senior Officer and
merely signed by him. In those circumstances, in view of the
c fact that many of the officers asserted before the Special Court
that neither they were in the respective position as claimed by
the prosecutio~- nor they made a statement as recorded under
Section 161 which necessitated the public prosecutor closing -"I

the prosecution case by giving up remaining PWs as
unnecessary. ,_
D
18. Coming to the allegadon relating to removal of Special
public prosecutors/special counsel and the conduct of the
present Public Prosecutor Mr. Pardeep Mehta, on behalf of the
S~ate of Punjab, Chief Secretary has filed a counter affidavit
E dated 29.04.2008 explaining the correct position. It is stated
that the political system prevailing in India is such that whenever
-Government changes or new political party forms the
.}- -
Government, all the officers including the Advocate General and _
the Law Officers tender their resignation and new ones, in whom
F the Government of the day has confidence are appointed by
the new Government/Political Parties. The same was also done
by the government headed by the petitioner herein which came
in power in the year 2002. Relating to the allegations that have
been made against the Public Prosecutor Mr. Pardeep Mehta,
G the Chief Secretary has explained that Mr. Pardeep Mehta had
been posted as Deputy District Attorney in the Vigilance ;.. .....
Bureau, Punjab on 26.09.2002. He was promoted as District
Attorney by Order dated 29.05.2006. Pursuant to his promotion
as District Attorney vide order 31.05.2006 passed by the
Principal Secretary, Department of Home Affairs and Justice, :
H
( CAPT. AMARINDER SINGH v. PRAKASH SINGH 221
BADAL & ORS. [P. SATHASIVAM, J.]
..;,.
-t
State of Punjab, he was appointed as District Attorney, Ropi:ir. A
Soon after his appointment as Deputy District Attorney,
Vigilance Bureau,. Punjab, Mr. Pardeep Mehta had been
conducting the prosecution of almost all the cases registered
under the Prevention of Corruption Act at Mohali. He had also
been assisting various special public prosecutors in the B
conduct of the trial of the present case, as well as the
proceedings before the High Court and in this Court. He relied
on the order sheet of the Trial Court with effect from 19.12.2096
which, according to him, reveal that Mr. Pardeep Mehta
appeared on behalf of the prosecution on each and every date c
of hearing.
._.
I

19. With regard to allegation regarding appointment and
removal of other public prosecutors/special counsel, the Chjef
Secretary has explained that on 28.11.2003 by separate
-1,
Notification Mr. Amar Pal Singh Randhawa, Advocate, Mr. H.S. D
Sandhu, Senior Advocate and Mr. Sukhdev Singh Tiwana,
Advocate were appointed as Special Public Prosecutor in 'the
present case. On the same day i.e. 28.11.2003, Mr. Pardeep
Singh, Advocate, Mr. Shiv Dutt Sharma, Advocate and Mr.
Amar Ashok Pathak, District Attorney/PP were appointed to E
assist the prosecution. Mr. U.U. Lalit, Advocate, (now Senior
-(
Advocate) on 24.04.2004, Mr. Rajiv Dutta, Senior Advocate,
on 17.09.2004, Mr. Amar Preet Singh Deol, Advocate, on
22.12.2006 and Mr. R.S. Cheema, Senior Advocate (the th~n
Advocate General, Punjab) on 18.01.2007 were appointed as F
special public prosecutors respectively. It was further explained
that the order sheet of the Trial Court from time to time shows
that Mr. Amar Pal Singh Randhawa, Advocate had never
conducted the proceedings before the Trial Court. Mr. Rajlv
Dutta, Senior Advocate appeared on 18.09.2004 i.e. on one G
....( occasion only. Mr. U.U. Lalit, Senior Advocate, had appeared
on 24.04.2004, 29.04.2004, 04.05.2004, 15.05.2004,
28.09.2004 and 30.09.2004, and not thereafter.
..,. 20. As regards the allegation that Mr. Amar Preet Sing~
H
222 SUPREME COURT REPORTS [2009) 9 S.C.R. ')

A Oedl, Special Public Prosecutor, was manhandled on t
28.02.2007, Chief Secretary has stated that no complaint was
filed by him in respect of any such alleged incident. On the other
"""
hand, it was pointed out that Mr. Amar Preet Singh Deol had
himself written a letter on 12.03.2007 to the Secretary (Home);
B Punjab, Chandigarh, requesting, inter alia, for clearance of his
fee bills, and even in this letter there was no mention of any
such incident. It was further stated that Mr. H.S. Mattewal was J
appointed as Advocate General for the State of Punjab on
02.03.2007 and he assumed his office on the said date.
c 21. As rightly highlighted by the learned senior counsel for
the State of Punjab that there is no reason to disregard the
above information furnished by the Chief Secretary of the State ....;.1
of Punjab. In those circumstances, the allegation relating to
removal of Special Public Prosecutors and about Mr. Pardeep
D Mehta cannot be sustained. It is also relevant to point out that }-

before the Court of Special Judge, Ropar, the present Public
Prosecutor Mr. Pardeep Mehta made a statement on behalf of
the State that on the basis of the police records he had given
up prosecution witnesses Mr. Kuldeep Singh, Mr. Bharat Shah,
E Mr. Amolak Singh and Mr. Surender Pal Mitra as they will not
support the case of the prosecution and also stated that he
wanted to examine only the witness Jatinder Singh, Sr. No. 5
in the supplementary challan, Mr. C. Paramjit Singh, Sr. No. 5, >---
main challan, Mr. Surinder Pal Singh, Sr. No. 137, in the main
F challan, Mr. Amarjit Singh SP, Sr. No. 99, main challan, Mr. J.S.
Kahlon, Sr. No. 34 of main challan, Mr. S. Chatopadhya, Sr.
No. 135, main challan and Mr. B.K. Uppal, Sr. No. 136 of main
challan. We also verified the statement of the 59 witnesses of
which 35 declared as hostile by Public Prosecutor. The perusal
G leads to a conclusion that the presiding Judge has made an
effort by putting relevant question to those witnesses and taking ,.__
---..
note of their assertion that they were forced to make incorrect
statement at the time of preliminary investigation, the public
prosecutor Mr. Pardeep Mehta has declared them as hostile.
Ultimately, it is upon the presiding officer/Special Judge and
H 111111
CAPT. AMARINDER SINGH v. PRAKASH SINGH 223
' BADAL & ORS. [P. SATHASIVAM, J.]

#. not this Court to evaluate those witnesses and arrive at a A
conclusion one way or other depending on the charges leveled
against the accused. It would not be fair on the part of this court
either to assess and arrive at an opinion about the same. Even
after closing of the prosecution side by the Public Prosecutor,
if the Court wants to examine some more witnesses from the B
list furnished by the prosecution, it is for the presiding Judge
to take a decision in accordance with the law and issue
appropriate direction.

22. Though, Mr. Altaf Ahmad, Learned senior counsel
relied on the decisions of this Court in K. Anbazhagan vs.
c
Superintendent of Police & Ors., S.K. Suk/a & Ors vs. State
of U.P. & Ors. and Jayendra Saraswati Swamigal vs. State of
~ Tamil Nadu, (supra) in view of the factual details as seen from
the materials placed before the Special Court and the details
shown in the form of reply affidavit on behalf of the Respondent D
-I
No. 1 in response to the Transfer Petition No. 235 of 2008 as
well as affidavit of the Chief Secretary placing certain factual
details, we are of the view that those decisions are not helpful/
applicable to the cases on hand.
.'t
E
23. The analysis of all the materials, the transfer of the case
as sought for, at this stage, is not only against the interest of
prosecution but also against the interest of other accused
-1,.
persons, the prosecution witnesses and the convenience of all
concerned in the matter. For the sake of repetition, it is relevant F
to mention that when the complainant was examined as PW
56, he disowned his complaint and asserted that it (complaint)
was not filed by him though he admitted his signature found
therein. Further, all important witnesses particularly government
officials informed that what they said before the Court alone is
G
absolute truth and they were forced to make false statement at
,., . ~ the time of registering the complaint. As stated earlier, similar
transfer petition which was filed before the High Court ended
in dismissal and it became final. We are satisfied that the
\

presiding officer of the Special Court is conscious of his power
H
224 SUPREME COURT REPORTS . [2009] 9 S.C.R.
'>:'.

A and how to conduct fair trial at the same place. We are also of ~
the opinion that the public prosecutor cannot act on the dictates
of the State Government, he has to act objectively as he is also _.
an Officer of the Court. The Special Court is free to assess
whether prosecution has established its case. We have already
B pointed out that a mere allegation that there is apprehension
that justice will not be done in a given case alone does not
suffice. Considering the totality of all circumstances, we are of
the opinion that in a secular, democratic Government, governed
by the rule of law, the State of Punjab is responsible for ensuring
c free, fair and impartial trial to the accused, notwithstanding, the
nature of the accusations made against them. In the case on
hand, the apprehension entertained by the petitioners cannot
be construed as reasonable one and the case cannot be
transferred on a mere allegationthat there is apprehension that
....
justice will not be done.
D
,_
24. Taking into consideration the entire facts and
circumstances of the case and the materials on record, we are
of the view that the petitioners have not made out a case that
they have reasonable apprehension of not availing justice in the
E State of Punjab. We would like to clarify that we have not
expressed anything on the merits neither of the prosecution i
case nor the defence of the accused and whatever said in the
earlier paragraphs are applicable only for disposal of transfer _...
petitions and ultimately it is for the Special Court to decide the
F issues in the light of the material placed and in accordance with
the law. The inevitable conclusion is that both the transfer
petitions filed by the petitioners deserve to be dismissed, which
we direct.

D.G. Transfer Petitions dismissed.

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