Holding

The Supreme Court held that to safeguard the right to a fair trial, the criminal proceedings must be transferred to another jurisdiction when there is a real risk of witness intimidation and potential bias, and ordered the transfer of the case to the Nagpur Sessions Court.

Summary

The petitioners, the son of a deceased college professor who was killed in a brutal assault, sought transfer of the criminal trial from Ujjain to another state, alleging witness intimidation, coercion, and bias by the investigating officer and public prosecutor. Several eye‑witnesses and three police witnesses had turned hostile during the trial, raising concerns about the fairness of the proceedings. The State of Madhya Pradesh did not object to the transfer but cautioned that it should not be taken as an admission of bias. The Supreme Court examined the constitutional requirement of a fair trial, the role of the State in protecting witnesses, and the wide powers of courts under s.311 CrPC and s.165 Evidence Act to ensure truth‑seeking. Emphasising that denial of a fair trial harms both the accused and society, the Court directed that the case be transferred to the Sessions Court in Nagpur, allowing the parties to suggest public prosecutors and permitting recall of hostile witnesses under s.311. The transfer petition and the connected writ petition were disposed of.

Issues considered

The adequacy of witness protection and the risk of intimidation in the trial at Ujjain.
Whether the alleged bias of the investigating officer and public prosecutor warrants transfer of the case.
The applicability of s.311 CrPC and s.165 Evidence Act in ensuring a fair trial.
The criteria for exercising the power of transfer under s.406 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 311, s. 406
Indian Evidence Act, 1872s. 165
Terrorist and Disruptive Activities (Prevention) Act, 1987

Subjects

fair trialwitness protectiontransfer of criminal trialSection 311 CrPCSection 165 Evidence Actwitness intimidationpublic prosecutorstate responsibilityimpartial judiciary

Judgment

• [2008) 4 S.C.R. 783

HIMANSHU SINGH SABHARWAL A
v.
STATE OF M.P. AND ORS.
... (Tra,psfer Petition (Crl.) No.175 of 2007)
MARCH 12, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Code of Criminal Procedure, 1973 - s.406 - Criminal
proceedings - Transfer of, from one State to another--Death
of College Professor due to brutal assault by certain persons c
in presence of police personnel, media persons and members
of public - Sessions Court, Ujjain conducting trial - Several
eye witnesses resiling from statements made by them during
investigation - Three police witnesses also resiling from their
earlier statements - Deceased Professor's son seeking
D
transfer of the proceedings on ground of coercion and threat
to witnesses; doubtful sincerity of the Investigating Officer and
"~
non cross-examination by Public Prosecutor of persons who
resiled from statements made during investigation - State not
objecting to transfer of proceedings but pleading that such
transfer should not to be construed as acceptance of the E
allegations made by petitioner about impartiality of the
investigating agency or the Public Prosecutor or the manner

• :0(

....
of trial - In view of the stand of State, without examining the
correctness of the allegations made, Supreme Court directed
that the case in question pending in the Court of Sessions F
Judge, Ujjain be transferred to the Court of Sessions Judge,
Nagpur.
Criminal Trial - Necessity of fair trial - Failure to hear
material witnesses is certainly denial of fair trial - State has a G
definite role to play in protecting the witnesses, to start with at
least in sensitive cases - Legislative measures to emphasise
A..
prohibition against tampering with witness, victim or informant
have become the imminent and inevitable need of the day

783 H
784 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A Criminal Trial - Role and power of the Courts - Held:

- Courts have to take a participatory role in a trial - They are
not expected to be tape recorders to record whatever is being
stated by the witnesses - s.311, CrPC and s.165 of the
Evidence Act confer vast and wide powers on Court to elicit all
B necessary materials by playing an active role in the evidence
collecting process - Power of Court under s. 165 of the
Evidence Act is in a way complementar1 to its power under
s.311, CrPC - Code of Criminal Procedure, 1973 - s.311 -
Evidence Act, 1872 - s. 165.
C The Petitioner's father, a Professor in Government
College, was brutally beaten up by certain persons for
taking rigid stand in the College union elections, which
resulted in his death. The incident allegedly occurred in
the presence of several police officials, media persons
D and members of the public. FIR was lodged and after
investigation, charge sheet was filed and charges framed
against Respondent nos.2 to 7. Trial commenced in the
Court of Sessions Judge, Ujjain, during which several eye-
witnesses resiled from the statements made by them
E during investigation. Three potice1 witnesses, PWs. 32, 33
and 34, also resiled from their earlier statements.
Petitioner prayed before this Court for transfer of the
Sessions case, contending that the witnesses were
coerced and threatened; that the role of the Investigating
F Officer gave ample scope to doubt the impartiality and.the
sincerity of the investigating age!ncy and that the Public
Prosecutor did not cross-examine the persons who had
resiled from their statements mc1de during investigation.
According to the Petitioner, the Sessions Court was not
G acting as required under law.
The State stated that in the larger interest of justice
and transparency, it has no objection in case the Sessions
case is transferred to some othiar State, but this should
H not be construed to be acceptance of the allegations made
HIMANSHU SINGH SABHARWAL v. STATE OF M.P. 785
AND ORS.

r by the petitioner about the impartiality of the ·investigating A
agency or the public prosecutor or the manner of trial.
Similar stand was also adopted by the counsel appearing
for the accused-respondents. To show their bona tides, it
was stated that the police officials PWs 32, 33 and 34 may
be recalled for cross examination even without any B
application in terms of s.311,CrPC being filed.
Disposing of the transfer petition and the connected
writ petition, the Court
HELD: 1.1. A trial which is primarily aimed at c
ascertaining truth has to be fair to all concerned. Denial
of a fair trial is as much injustice to the accused as is to
the victim and the society. Fair trial obviously would mean
a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which
D
bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated.
( If the witnesses get threatened or are forced to give false
evidence that also would not result in a fair trial. The failure
to hear material witnesses is certainly denial of fair trial.
[Para 9] [794-E, G; 795-A] E

1.2. If the witness himself is incapacitated from 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 F
witness being not in a position for reasons beyond control
to speak the truth in the Court or due to negligence or
ignorance or some corrupt collusion. Time has become
ripe to act on account of numerous experiences faced by
Courts on account of frequent turning of witnesses as
G
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 innumerable other corrupt practices ingenuously
adopted to smoother and stifle truth and realities coming
H
786 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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 to prosecution and the interests of State
represented by their prosecuting agencies do not suffer
B , 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 for anarchy, oppression and injustice
resulting in complete breakdown and collapse of the
C edifice of rule of law, enshrined and jealously guarded and
protected by the Constitution. There comes the need for
protecting the witness. Time has come when serious and
undiluted 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
0
mockery. [Para 14] [799-D-H; 800-A]
1.3. The State has a definite role to play in protecting
the witnesses, to start with at least in sensitive cases
involving those in power, who has political patronage and
E ·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 those against whom he has
F deposed. Some legislative enactments like the Terrorist
and Disruptive Activities (Prevention) Act, 1987 have taken
note of the reluctance shown by witnesses to depose
against dangerous criminals-terrorists. In a milder form
also the reluctance and the hesitation of witnesses to
G depose against people with muscle power, money power
or political power has become the ord_er 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
H/ proceedings before Courts mere mock trials as are usually
HIMANSHU SINGH SABHARWAL v. STATE OF M.P. 787
AND ORS.

seen in movies. [Para 14] [800-8, C, D, E] A
....-
1.4. Legislative measures to emphasise prohibition
against tampering with witness, victim or informant have
become the imminent and inevitable need of the day.
Conducts which illegitimately affect the presentation of
evidence in proceedings before the Courts have to be B
seriously and sternly dealt with. There should not be any
undue anxiety to only protect the interest of the accused.
~ That would be unfair 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. c
_j

Public interest in the proper administration of justice must
.be given as much importance if not more, as the interests
of the individual accused. In this courts have a vital role
to play. [Para 15] [800-F, G, H]
I
D
1.5. The Courts have to take a participatory role in a
.... trial. They are not expected to be tape recorders to record
whatever is being stated by the witnesses. 5.311, Cr.P.C
• and s.165 of the Evidence Act confer vast and wide
powers on Presiding Officers of Court to elicit all
necessary materials by playing an active role in the E
evidence collecting process. They have to monitor the
proceedings in aid of justice in a manner that something,
which is not relevant, is not unnecessarily brought into.
record. Even if the prosecutor is remiss in some ways, it
can control the proceedings effectively so that ultimate F
...
... objective i.e. truth is arrived at. This becomes more
necessary where the Court has reasons to believe that
the prosecuting agency or the prosecutor is not acting in
the requisite manner. The Court cannot afford to be
wishfully or pretend to be blissfully ignorant or oblivious G
to such serious pitfalls or dereliction of duty on the part
\
of the prosecuting agency. The prosecutor who does not
A.
act fairly and acts more like a counsel for the defence is a
liability to the fair judicial system, and Courts could not
also play into the hands of such prosecuting agency H
788 SUPREME COURT REPORTS [2008] 4 S.C.R.

A showing indifference or adopting an attitude of total
aloofness. [Para 16] [801-A, 8, C, D]
,,. l
}

1.6. The power of the Court under s.165 of the
Evidence Act is in a way complementary to its power under
s.311 of the Cr.P.C. The section consist:S of two parts i.e (i)
B giving a discretion to the Court to examine the witness at
any stage and (ii) the mandatory portion which compels
the Court to examine a witness if his evidence appears to
be essential to the just decision of the Court. Though the ...
discretion given to the Court is vert wide, the very width
c requires a corresponding caution. [Para 17] [801-E, F]
1.7. The very usage of the word such as, 'any Court'
'at any stage', or 'any enquiry or trial or other proceedings'
'any person' and 'any such person' clearly spells out that
the Section has expressed in the widest possible terms
D
'.
(~\

't
and do not limit the discretion .of the Court in any way.
However the very width requires a corresponding caution
~ l
that the discretionary powers should be invoked as the T
exigencies of justice require and exercised judicially with
circumspection and consistently with the provisions of
E the Cr.P.C. The second part of the section does not allow
any discretion but obligates and binds the Court to take
necessary steps if the fresh evidence to be obtained is
essential to the just decision of the case - 'essential', to
an active and alert mind and not to one which is bent to
F abandon or abdicate. Object of the Section is to enable
)J
the Court to arrive at the truth irrespective of the fact that ,..
the prosecution or the defence has failed to produce some
evidence whic!i is necessary for a just and proper
disposal of the case. The power is exercised and the
G evidence is examined neither to help the prosecution nor
the defence, if the Court feels that there is necessity to
act in terms of s.311 Cr.P.C. but only to subserve the cause
of justice and public interest. It is done with an object of- )...
getting the evidence in aid of ajust decision and to uphold
H the truth. [Para 17] [801-G; 802-A, 8, C, D]
-----(

•
- HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS.

Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani A
789

't -t Jethma/ani (1979 (4) SCC 167); Mohan Lal v. Union of India
(1991) Supp (1) SCC 271 and Zahira Habibulla H. Sheikh
.,
, and Anr. v. State of Gujarat and Ors. (2004 (4) SCC 158) -
relied on.
2. This Court appreciates the fair stand of the State B
and the accused persons. Without, therefore, examining
the correctness of the allegations made, this Court directs
that the case in question i.e. Sessions Case No.291 of 2006
\ ~
pendin,g in the Court of Sessions Judge, Ujjain be
transferred. to the Court of Sessions Judge, Nagpur, c
Maharashtra. It shall be open to the Sessions Judge to
either deal wi.th the case himself or to allot it to an
appropriate Court. The trial will commence from the stage
at wt)ich it wa~ wh~n the order of stay was passed by this
Court. The petitioner who is the son of the deceased in D
the peculiar facts of the case is permitted to suggest two
-(
.... names to function as public prosecutor. Similarly, two
~ names shall be given by the respondent-State. It shall be
for the Sessions Judge, Nagpur to appoint a public
prosecutor from the names to be suggested. The fees and E
other expenses of the public prosecutor shall be borne
by the State of M.P. It shall be open to the public
prosecutor to be appointed to seek recall of any witness
already examined in terms of s.311 Cr.P.C .. This shall be
---'
in addition to PWs. 32, 33 and 34 about whom directions F
~
have been given earlier in this order. [Para 19] [802-E-H;
r
, ..,... 803-A]
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
•
(Criminal) No. 175of2007.
G
WITH
Writ Petition (Criminal) No. 173 of 2006)
Vivek K. Tankha, Anurag Sharma, Prashant Kumar and
"""
Arjun Harkauli (for MIS. AP &J Chambers) for the Appellant.
H
790 SUPREME COURT REPORTS [2008] 4 S.C.R.

A '· Soli J. Sorabjee, Raju Ramachandran, Uday U. Lalit,
Vibha Datta Makhija, Vinay Navare, Virender Parmar, Abha R.
Sharma, K.L. Janjani, Krishnan Venugopal, D. Bharat Kumar,
Anand, M. lndrani,Abhijit Sengupta, Bhupendra Yadav, Sharabh
Samsheri, P.K. Kaurav, Vishwa Pal Singh and Shibashish Misra
B for the Respondents.
_The Judgment o\the Court was ~folivered by
· DR. ARIJIT PASAYAT, J. 1. Transfer Petition (Crl.) No.175
of 2007 has been filed by one Himanshu Singh Sabharwal who
c is the son of late Prof H.S. Sabharwal. The background facts
as projected by.the petitioner who is also the petitioner in Writ
Petition (Crl.) No.173 of •2006 are as follows:
·.. Late Prof. H.S. Sacharwal was a prof~ssor in Gov~rnment
. College·, Ujja_in, M.P.· He was brutally beateri up by certain
D persons, for taking a rigid stand in the college u-nion elections.
Tnough the assaults were made in the presenc~ of seyeri=JI police.
officials, media persons· and members of public, attempt has
been made to ·project as if his death was· as a result of an •
acddent. lnitiafly, First Information Report was lodged and after_
E investigation charge sheet was f!l~d and charges have been
framed against several persons who are re~pondents 2 to 7 in
the Tran·ster Petition. The trial commenced in the Court of·
Sessfons Judge, Ujjain being S~ssions Case No.291 of 2006.
During examination of several witnesses who were sta.ted to
F be eye~whnesses, such witness.es resiled from the statements
made··during investigation. There were· even three police
witnesses who also resiled from their earlier statements. They
are Ohara Singh (PW-32), Sukhnandan (PW-33) and Dilip
Tripathi (PW-34).
G Grievance of the petitioner is that the witnesses have been
coerced, threatened and ultimately justice is a casualty. Role of
the investigating officer-gives ample scope to doubt, impartiality
and the sincerity 9f the investigating agency. Similar is the
position of the public prosecutor. It is also highlighted that the .
H trial Court also did not make a serious effort to see that justice
e HIMANSHU SINGH SABHARWAL v. STATE OF M.P. 791
AND ORS. [DR. ARIJIT PASAYAT, J.]

is done. In this connection it is pointed out that public prosecutor A
+ did not cross-examine the persons who had resiled from their
statements made during investigation. This according to the
petitioner also shows that the trial Court did not act as is required
under law.
By order dated 11. 7 .2007 the proceedings in the sessions B
case were stayed. In pursuance of the notice the respondent-
State and accused respondents have appeared.
2. Mr. Soli J. Sorabjee, learned senior counsel appearing
for the State of M.P. stated that in the larger interest of justice c
and transparency, the State has no objection in case the
Sessions case is transferred to some other State. But according
to him this should not be construed to be acceptance of the
• allegations made by the petitioner about the impartiality of the
investigating agency or the public prosecutor or the manner of
D
trial. According to him, if any person is guilty he has to be
. punished and State never had or has any intention to protect
• any guilty person. Similar stand was also adopted by Mr. U.R .
Lalit, learned senior counsel appearing for the accused
respondents. To show their bona tides, it was stated that even
the police officials PWs 32, 33 and 34 may be recalled for cross E
examination even without any application in terms of Section
311 of the Code of Criminal Procedure, 1973 (in short the
'Code') being filed.

3. Right from the inception of the judicial system it has been F
/ '>(

4(
accepted that disc~very; vindication and establishment of truth
are the main purposes underlying existence of Courts of justice.
The operating principles for a fair trial permeate the common
law in both civil and criminal contexts. Application of these
principles involves a delicate judicial balancing of competing
G
interests in a criminal trial, the interests of the accused and the
public and to a great extent that of the victim have to be weighed
not losing sight of the public interest involved in the prosecution
of persons who commit offences.

4. In 1846, in a judgment which Lord Chancellor Selborne H
792 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A would later describe as "one of the ablest judgments of one of
the ablest judges who ever sat in this court". Vice-Chancellor
+
Knight Bruce said:
"The discovery and vindication and establishment of truth
are main purposes certainly of the existence of Courts of
B Justice; still, for the obtaining of these objects, which,
however valuable and important, cannot be usefully
pursued without moderation, cannot be either usefully or
creditably pursued unfairly or gained by unfair means, not .
every channel is or ought to be open to them. The practical
c inefficacy of torture is not, I suppose, the most weighty
objection to that mode of examination .. Truth, like all other
good things, may be loved unwisely - may be pursued too
keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great
D
a price ... for truth". This is a formulation which has subsequently
been frequently invoked, including by Sir Gerard Brennan. On ,.
another occasion, in a joint judgment of the High Court, a more
"
expansive formulation of the proposition was advanced in the
following terms: "The evidence has been obtained at a price
E which is unacceptable having regard to prevailing community
standards."
5. Restraints on the processes for determining the truth
are multi-faceted. They have emerged in numerous different
F ways, at different times ~nd affect different areas of the conduct
y "
of legal proceedings. By the traditional common law method of ~
induction there has emerged in our jurisprudence the principle
of a fair trial. Oliver Wendell Holmes described the process:
"It is the merit of the common law that it decides the case
G first and determines the principle afterwards ... It is only
after a series of determination on the same subject-matter,
that it becomes necessary to "reconcile the cases", as it
s called, that is, by a true induction to state the principle
which has until then been obscurely felt. And this statement
H is often modified more than once by new decisions before .;
HIMANSHU SINGH SABHARWAL v. STATE OF M.P. 793
AND ORS. [DR ARIJIT PASAYAT, J.],

the abstracted general rule takes its final shape. A well A
settled legal doctrine embodies the work of many minds,
and has been tested in form as well as substance by
trained critics whose practical interest is to resist it at
every step."
6. The principle of fair trial now informs and energises B
many areas of the law. It is reflected in numerous rules and
practices. It is a constant, ongoing development process
continually adapted to new and changing circumstances, and
exigencies of the situation - peculiar at times and related to the
nature of crime, persons involved - directly or operating behind, c
spcial impact and societal needs and even so many powerful
balancing factors which may come in the way of administration
,. of criminal justice system.
•
7. As will presently appear, the principle of a fair irial
D
manifests itself in virtually every aspect of our practice an.d
,... procedure, including the laws of evidence. There is, however,
• an overriding and, perhaps, unifying principle. As Deane J put
it:
"It is desirable that the requirement of fairness be E
separately identified since it transcends the content of
more particularized legal rules and principles and provides
the ultimate rationale and touchstone of the rules and
practices which the common law requires to be observed
in the administration of the substantive criminal law". F
"" ... >(

8. This Court has often emphasised that in a criminal case
the fate of the proceedings cannot always be left entirely in the
hands of the parties, crimes being public wrongs in breach and
violation of public rights and duties, which affect the whole
community as a community and harmful to the society in general. G
The concept of fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it is the community
that acts through the State and prosecuting agencies. Interests
of society is not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have H
794 SUPREME COURT REPORTS [2008) 4 S.C.R.
•
A an over-riding duty to maintain public confidence in the +
administration of ·justice - often referred to as the duty to
vindicate and uphold the 'majesty of the law'. Due administration
of justice has always been viewed as a continuous process, not
confined to determination of the particular case, protecting its
B ability to function as a Court of law in the future as in the case
before it. If a criminal Court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to be a
spectator and a mere recording machine by becoming a
participant in the trial evincing intelligence, active interest and
C elicit all relevant materials necessary for reaching the correct
conclusion, to find out the truth, and administer justice with
fairness and impartiality both to the parties and to the community
it serves. Courts administering criminal justice cannot turn a blind .,
.i.-
eye to vexatious or oppressive conduct that has occurred in
relation to proceedings, even if a fair trial is still possible, except
0
at the risk of undermining the fair name and standing of the
judges as impartial and independent adjudicators. ·
9. The principles of rule of law and due process are closely
linked with human rights protection. Such rights can be protected
E effectively when a citizen has recourse to the Courts of law. It
has to be unmistakably understood that a trial which is primarily
aimed at ascertaining truth has to be fair to all concerned. There
can be no analytical, all comprehensive or exhaustive definition
of the concept of a fair trial, and it may have to be determined in
F seemingly infinite variety of actual situations with the ultimate
object in mind viz. whether something that was done or said
either before or at the trial deprived the quality of fairness to a
degree where a miscarriage of justice has resulted. ltwill not
be correct to say that it is only the accused who must be fairly
G dealt with. That would be turning Nelson's eyes to the nel;!ds of
the society at large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as. much injustice to the
accused as is to the victim and the society. Fair trial obviously
would mean a trial before an impartial Judge, a fair prosecutor
H
• HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS. [DR. ARIJIT PASAYAT, J.]
795

and atmosphere of judicial calm. Fair trial means a trial in which A
bias or prejudice for or against the accused, the witnesses, or
the cause which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that also would
not result in a fair trial. The failure to hear material witnesses is
certainly denial of fair trial. B
10. While dealing with the claims for the transfer of a case
under Section 406 of the Code from one State to another this
Court in Mrs. Maneka Sanjay Gandhi and Anr v. Ms. Rani
Jethmalani (1979 (4) sec 167), emphasised the necessity to
ensure fair trial, observing as hereunder: c
"Assurance of a fair trial is the first imperative of the
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
D
easy availability of legal services or like mini-grievances .
...,.. Something more substantial, more compelling, more
imperilling, from the point of view of public justice and its
attendant environment, is necessitous if the Court is to
exercise its power of transfer. This is the cardinal principle
although the circumstances may be myriad and vary from E
case to case. We have to test the petitioner's grounds on
this touchstone bearing in mind the rule that normally the
complainant has the right to choose any court having
jurisdiction and the accused cannot dictate where the case
against him should be tried. Even so, the process of justice F
,>(

~

should not harass the parties and from that angle the court
... may weigh the circumstances .

A more serious ground which disturbs us in more ways
than one is the alleged absence of congenial atmosphere
G
for a fair and impartial trial. It is. becoming a frequent
phenomenon in our country that court proceedings are
being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial
hearing with menaces, noises and worse. This tendency
H
e•
796 SUPREME COURT REPORTS [2008] 4 S.C.R.

A of toughs and street roughs to violate the serenity of court +
is obstructive of the cmJrse of justice and must surely be
stamped out. Likewise, the safety of the person of an
accused or complainant is an essential,-I
condition for
participation in a trial and where that is put in peril by
B commotion, tumult or threat on account of pathological L
conditions prevalent in a particular venue, the request for
a transfer may not be dismissed summarily. It causes
~·
disquiet and concern to a court of justice if a person
see.king justice is unable to appear, present one's case,
c bring one's witnesses or adduce evidence. Indeed, it is
the duty of the court to assure propitious conditions which
.
conduce to comparative tranquility at the trial. Turbulent
'
conditions putting the accused's life in danger or creating r
chaos inside the court hall may jettison public justice. If
this vice is peculiar to a particular place and is persistent
D
the transfer of the case from that place may become
~
necessary. Likewise, if there is general consternation or ~

atmosphere of tension or raging masses of people in the
entire region taking sides and polluting the climate, vitiating
the necessary neutrality to hold det~ched judicial trial, the
E situation may be said to have deteriorated to such an
extent as to warrant transfer. In a decision cited by the
counsel for the petitioner, Bose, J., observed :
.... But we do feel that good grounds for transfer from
F Jashpurnagar are made out because o_fthe bitterness )<
~
of local communal feeling and the tenseness of the
atmosphere there. Public confidence in the fairness
of a trial held in such an atmosphere would be
...
seriously undermined, particularly among reasonable
Christians all over India not because the Judge was
G
unfair or biased but because the machinery of justice
is not geared to work in the midst of such conditions.
The calm detached atmosphere of a fair and impartial
judicial trial would be wanting, and even if justice
were done it would not be "seen to be done". (G X.
H
• HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS. [DR. ARIJIT PASAYAT, J.]
797

Francis v. Banke Behari Singh, AIR 1958 SC 309) A
Accepting this perspective we must approach the facts of
the present case without excitement, exaggeration or
eclipse of a sense of proportion. It may be true that the
petitioner attracts a crowd in Bombay. Indeed, it is true of
many controversial figures in public life that their presence B
in a public place gathers partisans for and against, leading
to cries and catcalls or 'jais' or 'zindabads'. Nor is it
unnatural that some persons may have acquired, for a
time a certain quality of reputation, sometimes notoriety,
sometimes glory, which may make them the cynosure of C
popular attention when they appear in cities even in a
court. And when unkempt crowds press into a court hall it
is possible that some pushing, some nudging, some brash
ogling or angry staring may occur in the rough and tumble
resulting in ruffled feelings for the victim. This is a far cry D
from saying that the peace inside the court has broken
down, that calm inside the court is beyond restoration,
. that a tranquil atmosphere for holding the trial is beyond
accomplishment or that operational freedom for judge,
parties, advocates and witnesses has creased to exist. E
None of the allegations made by the petitioner, read in the
pragmatic light of the counter-averments of the respondent
and understood realistically, makes the contention of the
counsel credible that a fair trial is impossible. Perhaps,
there was some rough weather but it subsided, and it was F
a storm in the tea cup or transient tension to exaggerate
which is unwarranted. The petitioner's case of great
insecurity or molestation to the point of threat to life is, so
far as the record bears out, difficult to accept. The mere
word of an interested party is insufficient to convince us G
that she is in jeopardy or the court may not be able to
conduct the case under conditions of detachment, neutrality
or uninterrupted progress. We are disinclined to stampede
ourselves "into conceding a transfer of the case on this
score, as things stand now.
H
798 SUPREME COURT REPORTS [2008] 4 S.C.R.
•
A Nevertheless, we cannot view with. unconcern the i'"
potentiality of a flare up and the challenge to a fair trial, in
· the sense of a satisfactory participation by the accused in
the proceedings against her. Mob action may throw out of
gear the wheels of the judicial process. Engin-eered fury
B may paralyse a party's ability to presenf his case or
participate in the trial. If the justice system grinds to a halt
through physical manoeuvres or sound and fury of the __..,
senseless populace the rule of law runs aground. Even
the most hated humari anathema has a right to be heard
c without the rage of ruffians or huff of toughs being turned
· against him to unnerve him as party or witness or advocate.
Physical violence to a party, actual or imminent, is.-
reprehensible· when he seeks justice before a tribunal.
ManageabJe solutions must not sweep this Court off its
feet into granting ari easy transfer but uncontrollable or
D
perilous deterioration will surely persuade us to shift the
)..
venue. It depends. The frequency of mobbing manoeuvres
in court precincts is· a bad omen for social justice in its "'
wider connotation. We, ·therefore, think it necessary to
make a few cautionary observations which will be sufficient,
E as we see at present, to protectthe petitioner and ensure
for her a fair trial.
11. A criminal trial is a judicial examination of the issues in
the case and its purpose is to arrive at.a judgment on an issue
F as a fact or relevant facts which may lead to the discovery of the )t.
~
fact issue and obtain proof of such facts at which the prosecution
and the accused have arrived by their pleadings; the controlling
question being the guilt or innocence of the accused. Since the
object is to mete out justice and to convict the guilty and protect
the innocent, the trial should be a search for the truth and not a
G
bout overtechnicalities, and must be conducted under such rules
as will protect the innocent, and punish the.guilty. The proof of
charge which has to be beyond reasonable doubt must depend
upon judicial evaluation of the. totality of the evidence, oral and
circumstantial and not by an isolated scrutiny.
H
• HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS. [DR. ARIJIT PASAYAT, J.]
799

12. Failure to accord fair hearing either to the accused or A
the prosecution violates even minimum standards of due
process of law. It is inherent in the concept of due process of
law, that condemnation should be rendered only after the trial in
which the hearing is a real one, not sham or a mere farce and
pretence. Since the fair hearing requires an opportunity to B
preserve the process, it may be vitiated and violated by an
overhasty stage-managed, tailored and partisan trial.
13. The fair trial for a criminal offence consists not only in
technical observance of the frame and forms of law, but also in
recognition and just application of its principles in substance, c
to find out the truth and prevent miscarriage of justice.
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 acting
D
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
position for reasons beyond control to speak the truth in the
Court or due to negligence or ignorance or some corrupt
collusion. Time has become ripe to act on account of numerous E
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
~
-""(
innumerable other corrupt practices ingenuously adopted to F
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 to prosecution and the
interests of State represented by their prosecuting agencies G
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 for anarchy, oppression and injustice
resulting in complete breakdown and collapse of the edifice of H
800 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A rule of law, enshrined and jealously guarded and protected by i'
the Constitution. There comes the need for protecting the
witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that ultimate
truth is presented before the Court and justice triumphs and the
B 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 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
c 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
those against whom he· has deposed. Some legislative
. enactments like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the 'TADA Act') have taken note
of the reluctance shown by witnesses to depose against
D
dangerous criminals-terrorists. In a milder form also the
reluctance and the hesitation of witnesses to depose against )..
people wit'1 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
E interests of justice do not get incapacitated in the sense of
making the proceedings before Courts mere mock trials as are
usually seen in movies.
15. Legislative measures to emphasise prohibition against
F tampering with witness, victim or intorrr:iant have become the 'y
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 unfair as noted above to the needs
G
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 the
individual accused. In this courts have a vital role to play.
H
• HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS. [DR. ARIJIT PASAYAT, J.]
801

16. The Courts have to take a participatory role in a trial. A
They are not expected to be tape recorders to record whatever
is being stated by the witnesses. Section 311 of the Code and
Section 165 of the Evidence Act confer vast and wide powers
on Presiding Officers of Court to elicit all necessary materials
by playing an active role in the evidence collecting process. They s
have to monitor the proceedings in aid of justice in a manner
that something, which is not relevant, is not unnecessarily brought
into record. Even if the prosecutor is remiss in some ways, it
can control the proceedings effectively so that ultimate objective
i.e. truth is arrived at. This becomes more necessary where the c
Court has reasons to believe that the prosecuting agency or the
prosecutor is not acting in the requisite manner. The Court cannot
afford to be wishfully or pretend to be blissfully ignorant or
oblivious to such serious pitfalls or dereliction of duty on the
part of the prosecuting agency. The prosecutor who does not
act fairly and acts more like a counsel for the defence is a liability D
to the fair judicial system, and Courts could not also play into
the hands of such prosecuting agency showing indifference or
adopting an attitude of .total aloofness.
17. The power of the Court under Section 165 of the E
Evidence Act is in a way complementary to its power under
Section 311 of the Code. The section consists of two parts i.e
(i) giving a discretion to the Court to examine the witness at any
stage and (ii) the mandatory portion which compels the Court
to examine a witness if his evidence appears to be essential to F
the just decision of the Court. Though the discretion given to the
Court is very wide, the very width requires a corresponding
caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC
271) this Court has observed, while considering the scope and
ambit of Section 311, that the very usage of the word such as,
'any Court' 'at any stage', or 'any enquiry or trial or other G
proceedings' 'any person' and 'any such person' clearly spells
out that the Section has expressed in the widest possible terms
and do not limit the discretion of the Court in any way. However,
as noted above, the very width requires a corresponding caution
H
802 SUPREME ·COURT REPORTS · [2008] 4 S.C.R.
e-
A that the discretionary powers should be invoked as the
i"
exigencies of justice require· and exercised judicially with
circumspection and consistently with the provisions of the Code.
The second part of the section does not allow any· discretion
but obligates and binds the Court to take necessary steps if the
B . fresh evidence to be obtained is· essential to the just ·decision
of the case - 'essential', to an active and alert mind and not to
one which is bent to abandon or abdicate. Object of the Section
is to enable the Court to arrive at the truth irrespective of the
fact that the. prosecution or the defence has failed to produce
c some evidence which is necessary for a just and proper disposal
of the case; The power is exercised and the evidence is
examined neither to heli:> the prosecution northe defence, if the.
Court feels that there is necessity to act in terms of Section 311
but only to subserve the cause of justice and public interest. It is
done with an object ·of getting the evidence in aid of a just
D
decision and to uphold the truth.
18. We are echoing the view succinctly stated in Zahira ). .
••-

Habibul/a H. Sheikh and Anr. v. State of Gujarat and Ors. (2004
..
(4) sec 158).
E 19. We appreciate the fair stand of the State as presented
by Mr.
. Sorabjee and learned counsel for the accused persons. .
Withou.t, therefore, examiriing the correctness of the allegations
made, we direct that the case in question LE?. S,essions Case
No.291 of 2006 pending in the Court of Sessions Judge, Ujjain
F be transferred to .the Court of Sessions Judge, Nagpur,
Maharashtra. It shall be open to the learned Sessions Judge to
,,.,..
either deal with. the case himself or to allot. it to an
. appropriate.
Court. The trial will. c9mmence from the stage at which it was
when the order of stay was passed by this Court. The petitioner
G who is the son of the deceased in the peculiar facts of th~ case
is permitted to ~uggest two names. to function a~ pub Ii<;;
prosecutor. Similarly, two names shall be. given bY. the
respondent-State. It shall be for the learned Sessions Judge, )....

Nagpur to ~ppoint a public prosecutor from the nc1mes to be
H suggested. The fees and other expenses of the public prosecutor
• HIMANSHU SINGH SABHARWAL v. STATE OF M.P.
AND ORS. [DR ARIJIT PASAYAT, J.]
803

shall be borne by the State of M.P. It shall be open to the public A
prosecutor to be appointed to seek recall of any witness already
examined in terms of Section 311 of Code. This shall be in
addition to PWs. 32, 33 and 34 about whom directions have
been given earlier in this order.
20. The Transfer Petition is accordingly disposed of. In B
view of the orders passed in T.P.(Crl.) 175 of 2007, no further
order is necessary to be passed in W.P.(Crl.) 173 of 2006 and
same is accordingly disposed of. ·
8.8.8. Transfer Petition & Writ Petition disposed of. c