JAHID SHAIKH & ORS.versusSTATE OF GUJARAT & ANR.

                    [2011] 10 S.C.R. 1


                  JAHID SHAIKH & ORS.                          A
                             v.
             STATE OF GUJARAT & ANR.
      (TRANSFER PETITION (CRL) N0.55 OF 2010)

                       JULY 6, 2011
                                                               B
     [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

      Code of Criminal Procedure, 1973 - s.406 - Bomb
blasts - Sessions Ca,se pending before the Special Judge,
Ahmedabad - Transfer petition - Prayer for transfer of the C
Sessions Case for trial outside the State of Gujarat on ground
of bias and vitiated communal atmosphere - Apprehension
of the accused of being denied a free and fair trial within the
State of Gujarat - Held: Absence of a congenial atmosphere
for fair and impartial trial is a good ground for transfer of a D
case out of a State - However, such a ground, cannot be the
only aspect to be considered - In the instant case, the
offences with which the accused have been charged are of a
very serious nature, but the communally surcharged
atmosphere which existed at the time of the alleged incidents, E
has settled down considerably and is no longer as volatile as
it was previously - Also, the Presiding Officers against whom
bias had been alleged, will no longer be in charge of the
proceedings of the trial - On the other hand, in case the
Sessions Trial is transferred outside the State of Gujarat for F
trial, the prosecution will have to arrange for production of its
witnesses, who are large in number, to any venue that may
be designated outside the State of Gujarat and prejudice may
be caused to the prosecution in presenting its case - Case
for transfer of trial outside-the State of Gujarat is based on G
certain incidents which had occurred in the past - The main
ground on which the Petitioners sought transfer is an
apprehension that communal feelings may, once again, raise
its ugly head and permeate the proceedings of the trial if it is
conducted by the Special Judge, Ahmedabad - However,
                              •                                H
    2       SUPREME COURT REPORTS               [2011) 10 S.C.R.


A such a/legation is now more speculative than real,
  nevertheless in order to dispel the apprehension of the
  petitioners, liberty given to them that in the event their
  apprehension are proved to be real during the course of the
  trial, they will be entitled to move afresh before Supreme Court
B for the relief sought for in the present Transfer Petition.

       FIRs were lodged with different Police Stations in the
  State of Gujarat in connection with the bomb blasts that
  occurred in 2008 in the cities of Ahmedabad and Surat.
C The present Transfer Petition was filed under Section 406
  of CrPC for transfer of Sessions Case arising out of said
  FIRs and pending before the Special Judge, Ahmedabad,
  for trial outside the State of Gujarat on ground of bias and
  vitiated communal atmosphere.

D      In support of the Transfer Petition, it was inter alia
  submitted that the local police authorities, jail authorities
  and the public prosecutor had conducted themselves in
  a manner which reflected total bias and prejudice against
  the accused and the same created more than a
E reasonable apprehension in their mind that they would
  not get a fair and free trial in the State of Gujarat; that
  charges were framed against the accused without
  supplying them with the essential documents required to
  be supplied under Section 207 of Cr.P.C.; that most of the
F accused did not have access to all the police papers at
  the time of framing of charges against them; that those
  favoured with copies of the police papers were unable to
  understand the same, as they were in Gujarati- a language
  not known to most of the accused, most of them being
G from outside the State of Gujarat; that the counsel for the
  accused were not permitted to meet their clients even for
  10 minutes in their Court chambers, without the police
  being present; that several affidavits had been filed by
  the relatives of the accused which revealed the severe
  physical torture inflicted on the accused which were
H
   JAHID SHAIKH & ORS. v. STATE OF GUJARAT &            3
                     ANR.
supported by medical reports of doctors who examined A
the victims, but despite such evidence, the trial court did
not order an independent probe into the incident; that in
the event local communal feelings, which are borne out
from the manner in which the accused were treated by
the police, jail staff and the Courts are such that they B
create an atmosphere which is not conducive to the
holding of a fair trial, the cases should be transferred to
a neutral location in the interest of justice and finally that
in the circumstances indicated, it was only just and
proper that the Transfer Petition be ~llowed and that c
Sessions Case pending before the Special Judge,
Ahmadabad, be transferred outside the State of Gujarat
for trial.

       The State of Gujarat and the Inspector General of
  Prisons opposed the Transfer Petition inter alia D
  contending that a few orders, even if held to be incorrect,
  could not be a ground for transferring the entire
· prosecution out of the State of Gujarat as that would lead
  to various difficulties for the prosecution in producing
  witnesses at the time of trial; that there were a large E
  number of witnesses in respect of the cases relating to
  Ahmadabad and Surat and it would be impossible for .
  such a large number of witnesses to be produced before
  a Court outside the State of Gujarat for,giving evidence
  before a Court where the language used was not Gujarati. F
  It was further contended that the allegation of bias made
  against the Magistrate or Sessions Judge was no longer
  relevant since the matter had already been committed by
  the Magistrate to the Court of Sessions while the
  Sessions Judge had since been elevated as a Judge of G
 the Gujarat High Court and the trial would be conducted
   a
  by Judge other than the said Judge against whom the
 allegation of bias had been made; that in the changed
  circumstances the arguments advanced in favour of
  transfer of the Sessions Case outside the State of Gujarat H
     4        SUPREME COURT REPORTS             [2011] 10 S.C.R.


A     could no longer be justified and were liable to be rejected;
      that even the ~!legation of torture in custody was not
      proved to the satisfaction of the Court; and that all the
    · allegations made by the Petitioners against the
      Respondents were entirely false and merited rejection.
B
          Disposing of the Transfer Petition, the Court

      HELD:1.1. Apparently, at the initial stages of the
  investigation and filing of charge-sheets some amount of
  bias could well have been detected. However, once the
C matter had gone out of the hands of the Magistrate
  concerned, no further bias could be attributed to him.
  Similarly, the allegation of bias against the District &
  Sessions Judge was no longer available since the
  incumbent had been elevated as a Judge of the High
D Court and the trial will be conducted by another Judge.
  [Para 16) (19-C-D)

          1.2. However, the manner in which the charges had
     been framed, without giving the Petitioners a meaningful
E    opportunity of meeting the allegations made against them
     in the charge-sheet, will ultimately have a direct bearing
     on the trial itself. The duty of the Sessions Court to
     supply copies of the charge-sheet and all the relevant
     documents relied upon by the prosecution under
     Sections 207 and 208 Cr.P.C. is not an empty formality
F    and has to be complied with strictly so that the accused
     is not prejudiced in his defence even at the stage of
     framing of charge. The fact that many of the accused
     persons were not provided with copies of the charge-
     sheet and the other relevant documents, as indicated in
G    Sections 207 and 208 Cr.P.C., seriously affects the right
     of an accused to a free and fair trial. In the instant case,
     in addition to the above, it has also to be kept in mind that
     most of the accused persons in this case are from
     outside the State of Gujarat and are not, therefore, in a
H    position to understand the documents relied upon by the
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &              5
                    ANR.
police authorities as they were in Gujarati which most of A
the accused were unable to comprehend. Their demand
for translated copies of the documents met with no
response, and ultimately it was the very same documents
in Gujarati, which were supplied to some of the accused
in some of the cases. [Para 17] [19-E-H; 20-A-B]     •    B

      1.3. The physical torture which was said to have been
inflicted on the Petitioners has come on record by way
of affidavits to which there is no suitable explanation.
Furthermore, the accused persons were not allowed to
meet their lawyers without police presence, and as.stated     C
by them, it is only natural that an accused in custody will
have second thoughts before making or reiterating
allegations of torture against the very persons to whose
custody they would have Jo return. [Para 18] [20-C-D]
                                                            D
     1.4. Apart from the above, this Court also has to
consider the submissions on behalf of the State of
Gujarat and the Inspector General of Prisons regarding
the convenience of the prosecution which intends to
 produce a large number of witnesses, who are all said to E
 be-residents of the State of Gujarat. It was submitted on
 behalf of the State of Gujarat and the Inspector General
of Prisons that the examination of such a large number
of witnesses could be compromised and/or jeopardized
in the event they are required to travel outside the State F
of Gujarat in connection with the trial. There will also be
a language problem for the witnesses to be examined
outside the State of Gujarat, since the majority of the
witnesses were acquainted mostly with Gujarati and
would be at a disadvantage in providing a true picture of
the series of incidents relating to the bomb blasts which G
were triggered off in the cities of Ahmedabad and Surat.
[Para 19] [20-E~G]

    K. Anbazhagan v. Supdt. Of Police (2004 (3) SCC 767:
                                                              H
    6      SUPREME COURT REPORTS            [2011] 10 S.C.R.


A 2003 (5) Suppl. SCR 610; Surendra Pratap Singh v. State
  of U.P. & Ors. (2010) 9 sec 475: 2010 (11) SCR 909 -
  cited.

        2. In the Indian criminal justice delivery system the
  balance tilts in favour of the accused in case of any doubt
8
  in regard to the trial. The Courts have to ensure that an
  accused is afforded a free and fair trial where justice is
  not only done, but seen to be done and in the process
  the accused has to be given the benefit of any advantage
  that may enure to his/her favour during the trial. Article
C 21 of the Constitution enshrines and guarantees the
  precious right of life and liberty to a person, deprivable
  only on following the procedure established by law in a
  fair,trial, assured of the safety of the accused. Except in
  certain matters relating to economic offences or in regard
D to national security, the burden lies heavily on the
  prosecution to prove its case to the hilt and it is rarely
  that the accused is called upon to prove his innocence.
  [Para 20] [20-H; 21-A-B]                  .

E       Commissioner of Police v. Registrar, Delhi High Court
    (1996) 6 sec 323: 1996 (7) Suppl. SCR 432 - relied on.

        3. The instant case is a case where the
  apprehension of the accused being denied a free and fair
  trial within the State of Gujarat has to be considered on
F the weight of the materials produced on behalf of the
  accused in support of such apprehension and the
  prejudice that may also be caused to the prosecution in
  presenting its case. That the facts involved in this case
  are of a sensitive nature, cannot be denied, but that by
G itself cannot be a ground for transfer of the trial outside
  the State of Gujarat. A good deal of care and caution has
  to be exercised to see whether the accused/petitioners
  have been able to make out a case of bias and prejudice
  on the part of the State or the prosecuting authorities
H
   JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                 7
                     ANR.
 which raises a very real and plausible ground for                A
 transferring the trial pending before the Special Judge,
 Ahmedabad outside the State of Gujarat. Apart from the
 above, what has also to be taken into consideration is a
 conceivable surcharged communal climate which could
 have a direct bearing on the trial itself. The Court has to      B
 undertake a balancing act between the interest of the
 accused, the victims and society at large in the focus of
 Article 21 of the Constitution to ensure a free and fair trial
 to the accused. [Para 21] [21-C-F]
     G.X. Francis & Ors. v. Banke Behari Singh & Anr. AIR C
  1958 SC 309; Gurcharan Dass Chadha v. State of Rajasthan
  (1966) 2 SCR678 = AIR 1966 SC 1418; Maneka Sanjay
  Gandhi & Anr. v. Miss Rani Jethmalani (1979) 4 SCC 169;
· K. Anbazhagan v. Superintendent of Police, Chennai & Ors.
. (2004) 3 SCC 788: 2004 (2) SCR 495; Abdul NazarMadani           D
  v. State ofT.N. & Anr. (2000) 6 SCC 204: 2000 (3) SCR 1028
  - referred to.
      4. In order to ensure a free and fair trial the
 atmosphere in which the case is tried should be E
 conducive to the holding of a fair trial. The absence of a
 congenial atmosphere for such a fair and impartial trial
 is a good ground for transfer of a case out of a State.
 However, such a ground, though of great importance,
 cannot be the only aspect to be considered while deciding
                                                            F
 whether a criminal trial could be transferred out of the
 State which could seriously affect the prosecution case,
 considering the large number of witnesses to be
 examined to prove the case against the accused. Justice
 must not only be done, but must also be seen to be done.
 If the said principle is disturbed, fresh steps can always G
 be taken under Section 406 Cr.P.C. and Order XXXVI of
 the Supreme Court Rules, 1966 for the same reliefs.
 [Paras 27, 28] [25-B-E]

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    8       SUPREME COURT REPORTS             [2011] 10 S.C.R.


A       Zahira Habibul/a H. Sheikh vs. State of Gujarat (2004) 4
    sec 158: 2004 (3) SCR 1050 - relied on.
         5. The offences with which the accused have been
    charged are of a very serious nature, but except for an
    apprehension that justice would not be properly
8
    administered, there is little else to suggest that the
    charged atmosphere which existed at the time when the
    offences were alleged to have been committed, still exist
    and was likely to prejudice the accused during the trial.
    All judicial officers cannot be tarred with the same brush
C   and denial of a proper opportunity at the stage of framing
    of charge, though serious, is not insurmountable. The
    accused have their remedies elsewhere and the
    prosecution still has to prove its case. The communally
    surcharged atmosphere which existed at the time of the
D   alleged incidents, has settled down considerably and is
    no longer as volatile as it was previously. The Presiding
    Officers against whom bias had been alleged, will no
    longer be in charge of the proceedings of the trial. The
    conditions in Gujarat today are not exactly the same as
E   they were at the time of the incidents, which would justify
    the shifting of the trial from the State of Gujarat. On the
    other hand, in case the Sessions Trial is transferred
    outside the State of Gujarat for trial, the prosecution will
    have to arrange for production of its witnesses, who are
F   large in number, to any venue that may be designated
    outside the State of Gujarat. At the present moment, the
    case for transfer of the trial outside the State of Gujarat
    is based on certain incidents which had occurred in the
    past and have finally led to the filing of charges against
G   the accused. The main ground on which the Petitioners
    have sought transfer is an apprehension that communal
    feelings may, once again, raise its ugly head and
    permeate the proceedings of the trial if it is conducted by
    the Special Judge, Ahmedabad. However, such an
H   allegation today is more speculative than real, but in
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                 9
                    ANR.

order to dispel such apprehension, this Court also keeps         A
it open to the Petitioners that in the event the
apprehension of the petitioners are proved to be real
during the ·course of the trial, they will be entitled to move
afresh before this Court for the relief sought for in the
present Transfer Petition. [Para 29) [25-F-H; 26-A-E]            B
                     Case Law Reference:
2004 (3) SCR 1050             relied on      Paras 9, 14, 27
(1979) 4 sec 169              referred to    Para 9, 25
                                                                 c
AIR 1958 SC 309               referred to    Para 9, 23
2003 (5) Suppl. SCR 610       cited          Paras 10, 25
2010 (11) SCR 909             cited          Para 10
                                                                 D
(1966) 2 SCR 678              referred to    Para 10, 24
1996 (7) Suppl. SCR 432       relied on      Para 20
2004 (2) SCR 495              referred to    Para 25
2000 (3) SCR 1028             referred to    Para 26             E
     CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Criminal) No. 55 of 2010.

    Under Section 406 Code of Criminal Procedure.
                                                                 F
      Prasahant Bhushan, Rohit Kumar Singh, Mayank Mishra
for the Petitioner.

    Ranjit Kumar, Hemantika Wahi, Suvhi Bane~ee for the
Respondents.                                                     G

    The Judgment of the Court was delivered by

      ALTAMAS KABIR, J. 1. This Transfer Petition has been
filed by one Jahid and 62 other Petitioners under Section 406
                                                                 H
    10         SUPREME COURT REPORTS             [2011) 10 S.C.R.


A of the Code of Criminal Procedure for transfer of Sessions
  Case No.38 of 2009 pending before the Special Judge,
  Ahmadabad, for trial outside the State of Gujarat,

       2. The aforesaid Sessions Case arises out of FIR Nos.1-
B 236 of 2008 of Shahibaug Police Station and various other
  FIRs lodged with different Police Stations in the State of
  Gujarat. Apart from FIR Nos.1-236 of 2008 of Shahibaug Police
  Station, the aforesaid Sessions Case No.38 of 2009 also
  involves the following Fl Rs in which the Petitioners have been
C implicated :-

         (a)    1-203 of 2008, 1-204 of 2008, 1-205 of 2008 and 1-
                206 of 2008 of Maninagar Police Station;

         (b)    1-338 of 2008 and 1-339 of 2008 of Odhav Police
0               Station;

         (c)    1-400 of 2008 and 1-401 of 2008 of Naroda Police
                Station;

         (d)    1-321 of 2008 and 1-322 of 2008 of Ramol Police
E               Station;

         (e)    1-190 of 2008 of lsanpur Police Station;

         (f)    1-218 of 2008 of Vatva Police Station;

F        (g)    1-273 of 2008 of Amraiwadi Police Station;

         (h)    1-71 of 2008 of Khadia Police Station;

         (i}    1-220 of 2008 of Bapunagar Police Station;

G        (j}    1-123 of 2008 of Kalupur Police Station;

         (k}    1-140 of 2008 of Danilimbda Police Station;

         (I)    1-181 of 2008 of Sarkhej Police Station;

H        (m)    1-200 of 2008 of Kalol Police Station;
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                  11
           ANR. [ALTAMAS KABIR, J.]
      (n)   176 of 2008, 175 of 2008, 17.9 of 2008 and 180 of      A
            2008 of Kapodra Police Station;

      (o)   365 of 2008, 363 of 2008, 364 of 2008, 369 of
            2008 and 366 of 2008 of Varacha Police Station;

      (p)   203 of 2008 and 208 of 2008 of Katargam Police         B
            Station;

      (q)   651 of 2008 of Umrah Police Station;

      (r)   3019 of 2008 of DCB Police Station;
                                                                   c
      (s)   208 of 2008 and 209 of 2008 of Mahidharpura
            Police Station.

     All the aforesaid FIRs have been lodged in connection with
the series of bomb blasts that occurred in 2008 all over the       D
country in major cities like Delhi, Mumbai, Jaipur, Ahmadabad
and Bengaluru, killing many and injuring several others. As a
response to the aforesaid blasts which were declared to be acts
of terrorism by the State Government, a large number of young
men belonging to the Muslim· community were arrested both          E
from within and outside the State of Gujarat.

     3. Appearing in support of the Transfer Petition, learned
Advocate, Mr. Prashant Bhushan, submitted that the Transfer
Petition seeking transfer of the trial of the accused in the
Ahmedabad bomb blast cases, as well as in the cases relating       F
to planting of bombs in Surat, out of the State of Gujarat, was
necessitated on account of the attitude and conduct of the local
authorities. Mr. Bhushan submitted that the local police
authorities, jail authorities and the public prosecutor had
conducted themselves in a manner which reflects total bias and     G
prejudice against the accused and the same has created more
than a reasonable apprehension in their mind that they would
not get a fair and free trial in the State of Gujarat.

                                                                   H
    12      SUPREME COURT REPORTS               [2011) 10 S.C.R.


A        4. Among the more glaring examples ofbias and
    prejudice pointed out by Mr. Prashant Bhushan was the
    allegation that charges were framed against the accused
    without supplying them with the essential documents which
    were required to be supplied under Section 207 of the Code
B   of Criminal Procedure (Cr.P.C.), particularly when the majority
    of the accused were not being represented through counsel.
    Mr. Bhushan subrriitted that in cases instituted upon a police
    report, Section 207 Cr.P.C. makes it obligatory on the part of
    the Magistrate to provide the accused, without delay, free of
c   cost, copies of the police report, the First Information Report
    recorded under Section 154 Cr.P.C., the statements recorded
    under Sub-Section (3) of Section 161 Cr.P.C. of all the persons
    whom the prosecution proposed to examine as its witnesses,
    the confessions and statements recorded under Section 164
D   Cr.P.C., as well as any other document or relevant extract
    forwarded to the Magistrate with the police report under Sub-
    section (5) of Section 173 Cr.P.C. Mr. Bhushan urged that
    under Section 227 Cr.P.C. the accused have a right to oppose
    the framing of charges on the basis of the evidence gathered
E   during investigation, which requires the accused to have copies
    of all the documents mentioned in Section 207 of the Code.
    Mr. Bhushan submitted that the said right to have the police
    papers had been violated by the Respondents! inasmuch as,
    most of the accused did not have access to all the papers at
    the time of framing of charges against them. Mr. Bhushan
F   submitted that those who had been favoured with copies of the
    police papers were unable to understand the same, as they
    were· in Gujarati which language was not known to most of the
    accused, most of them were from outside the State of Gujarat.
    Mr. Bhushan also submitted that the learned Advocates of those
G   who were provided with copies of the charge-sheets in Gujarati
    were barely given four days' time to consider the same to
    prepare their case for discharge of the accused.

     5. Despite the fact that on the date of framing of charges,
H many of the accused had not been served with copies of the
    JP.HID SHAIKH & ORS. v. STATE OF GUJARAT &                    13
              ANR. [ALTAMAS KABIR, J.]

  charge-sheet and connected papers, such as the statement of           A
  witnesses and confessional statements of the accused
  recorded under Section 164 Cr.P.C., and other documents, and
  those who had been served, were served with copies of the
  same in Gujarati, the learned Designated Judge framed
  charges against the accused persons on 11th January, 2010.            B
  Mr. Bhushan submitted that the majority of the accused were
  provided with lawyers and copies of the charge-sheet and other
  documents after charge had already been framed. [Emphasis
  Supplied] Mr. Bhushan submitted that some of the accused,
  who did not receive the said documents, moved an Application          c
  on 15th February, 2010, but the same was rejected without
  such copies being supplied.

        6. Mr. Bhushan urged that apart from the above, one other
   serious grievance which the accused had, which has led to the
   apprehension of bias, was that the counsel for the accused           D
   were not permitted to meet their clients even for 10 minutes in
   their Court chambers, without the police being present, despite
   the applications made on behalf of the accused that they would
   not be in a position to speak freely in the presence of the police
   for fear of subsequent reprisal at the hands of the police. Mr.      E
   Bhushan submitted that although the Court was fully aware of
   the fact that the accused would not be able to speak freely about
   the torture inflicted on them while in custody, it decided to look
   the other way to prevent the learned advocates for the accused
   to obtain a true picture of the allegations made by the accused      F
   of torture at the hands of police while in custody. Mr. Bhushan
   submitted that the Court chose to disregard the reality that after
   their production in Court, the accused would have to go back
   to the custody of police and to suffer the consequences of their
   disclosures in Court. Mr. Bhushan submitted that even in the         G
   light of the serious allegations made against the police of
   torture and the evidence in support thereof, the Court did not
,..think it necessary to even order an independent investigation
   to verify the truth or otherwise of such allegations. Mr. Bhushan
  urged that on account of the disinterest shown by the Courts          H
    14         SUPREME COURT REPORTS             [2011) 10 S.C.R.


A with regard to the complaints of torture made by the accused,
  the jail authorities became emboldened and subi.ected the
  accused to other indignities, including the storming of the
  barracks of the accused on 27th March, 2009, and severely
  beating the inmates thereof.
8
        7. Mr. Bhushan submitted that several affidavits had been
  filed by the relatives of the accused which revealed the severe
  physical torture inflicted on the accused which were supported
  by medical reports of doctors who examined the victims, but
C despite such evidence, the trial court did not order an
  independent probe into the incident and, instead, sought a
  report from the jail authorities who, as it could have been
  expected, stated that it was the accused who had revolted and
  had to be subdued by the jail authorities. It was the aforesaid
  explanation of the jail authorities which was ultimately upheld
D by the Court. Mr. Bhushan submitted that the jail authorities had
  placed reliance on a report by the Additional Principal Judge
  into an incident which had taken place prior to the incident of
  27th March, 2009. In other words, tht:. matter referred to in the
  order dated 5th December, 2009, passed by the Gujarat High
E Court had no connection with the incident forming the basis of
  the transfer petition.

       8. Mr. Bhushan contended that apart from the above, there
  were several other instances of bias indicated hereinbelow,
F which had given rise to the apprehension in the minds of the
  accused that they would not get a free and fair trial as is
  guaranteed under Article 21 of the Constitution, before the
  learned Designated Judge, namely,

         (a)    On the date of hearing, the Investigating Officer, Mr.
G               Tolia, was seen leaving the Chamber of the learned
                Designated Judge, which fact was admitted, but
                was attempted to be explained on the ground that
                such visits were in connection with other matters- ,
                pertaining to the bomb blast cases. An application
H
JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                  15
         ANR. [ALTAMAS KABIR, J.]
         made thereafter, requesting the learned Judge to        A
         recuse herself from the cases remained undecided.

   (b)   On 15th February, 2010, this Court stayed the
         proceedings before the Designated Judge and,
         although, the same was orally conveyed to the
                                                                 B
         learned Judge, she rejected all the applications
         praying for adjournment, and completed framing of
         charge and fixed 19th February, 2010, for
         evidence. Within two weeks thereafter on 21st
         March, 2010, the Designated Judge also rejected
         the applicationfor transit remand for 11 accused to     c
         be brought to Delhi for framing of charge in
         connection with the case pending in Delhi, on the
         ground that charge had already been framed
         against them and the trial had been stayed by this
         Court.                                                  D

   (c)   Although, out of 64 accused, 42 were from outside
         Gujarat from eight different States, copies of the
         charge-sheet in Gujarati were attempted to be
         served on some of the accused in a show of              E
         compliance with the provisions of Section 173
         Cr.P.C. which would not enable the accused to
         make an effective representation at the time of
         framing of charge. Even the copies which were
         served on 22 of the accused, who were Gujaratis,
                                                                 F
         were found to be illegible.

   (d}   The accused were severely prejudiced by the fact
         that although the orders passed by the Metropolitan
         Magistrate or the Designated Judge were
         appealable, it was impossible for them to seek any      G
         further relief since the majority of the accused were
         from outside Gujarat and their cases were being
         looked after by Legal Aid counsel or by counsel
         appearing pro bono.
                                                                 H
    16       SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A         9._Mr. Bhushan submitted that it is now well- settled by this
    Court in the case of Zahira Habibul/a H. Sheikh Vs. State of
    Gujarat [(2004) 4 SCC 158) and Maneka Sanjay Gandhi &
    Anr. Vs. Miss Rani Jethmalani [(1979) 4 SCC 169), etc., that
    in the event local communal feelings, which are borne out from
B   the manner in which the accused were treated by the police,
    jail staff and the Courts are such that they create an atmosphere
    which is not conducive to the holding of a fair trial, the cases
    should be transferred to a neutral location in the interest of
    justice. Mr. Bhushan submitted that as was held in Maneka
C    Sanjay Gandhi's case (supra) and quoted with approval in
    Zahira Habibul/a H. Sheikh's case (supra), one of the more
    serious grounds which disturbed the conscience of the Court
    in more ways than one, is the alleged absence of a congenial
    atmosphere for a fair and impartial trial. Mr. Bhushan submitted
    that such a sentiment had been expressed as far back as in
D    1958 by Justice Vivian Bose in the case of G.X. Francis & Ors.
     Vs. Banke Behari Singh & Anr. (1958 Crl.L.J. 569= AIR 1958
    SC 309], where his Lordship observed that good grounds for
    transfer had been made out because of the bitterness of the
     local communal feeling and the tenseness of the atmosphere
E   there. His Lordship also observed that public confidence in the
    fairness of a trial held in such an atmosphere would be seriously
     undennined, particularly amongst reasonable Christians all over
     India, not because the Judge was unfair or biased, but
    because the machinery of justice is not geared to work in the
F    midst of such conditions. [Emphasis Supplied]

        10. In support of his aforesaid contention, Mr. Prashant
  Bhushan also referred to the decisions of this Court in K.
  Anbazhagan Vs. Supdt. Of Police ((2004 (3) SCC 767],
G Surendra Pratap Singh Vs. State of U.P. & Ors. [(2010) 9 SCC
  475], and Gurcharan Dass Chadha Vs. State of Rajasthan
  ((1966) 2 SCR 678         =AIR 1966 SC 1418]. Mr. Bhushan
  submitted that the law as settled by this Court for transferring
  a trial did not require the Petitioner to prove that he would be
H deprived of a free and fair trial, but the test is whether there
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                   17
           ANR. [ALTAMAS KABIR, J.]
are circumstances which create a reasonable apprehension            A
that he might not get a free and fair trial. Learned counsel
further submitted that the contention of the State that the case
was no longer before the Metropolitan Magistrate and that even
the Designated Judge had since been changed, was of little
consequence, since trial by a different Judge would not restore     B
the invaluable rights which had been denied to the accused at
the stage of framing of charge.

     11. Mr. Prashant Bhushan submitted that in the
circumstances indicated, it was only just and proper that the       C
Transfer Petition be allowed and that Sessions Case No.38 of
2009 pending before the Special Judge, Ahmadabad, be
transferred outside the State of Gujarat for trial.

      12. Appearing for the State of Gujarat and the Inspector
General of Prisons, Ms. Hemantika Wahi, learned Advocate,           D
strongly opposed the Transfer Petition and contended that it
was only after intensive investigation that charge-sheets had
been filed against the accused persons who had travelled to
different parts of Gujarat as a part of a criminal conspiracy
under false and vexatious names and planted bombs at                E
different locations in thickly-populated public places to cause
the maximum amount of damage and terror. It was submitted
that the allegation made relating to the alleged bias and/or lack
of confidence in getting a free and fair trial before the
Magistrate and the Designated Sessions Judge, was entirely          F
without foundation, as were the allegations also made against
the Jail Authorities. Ms. Wahi submitted that a few orders, even
if held to be incorrect, could not be a ground for transferring
the entire prosecution out of the State of Gujarat as that would
lead to various difficulties for the prosecution in producing       G
witnesses at the time of trial. Ms. Wahi submitted that there
were a large number of witnesses in respect of the cases
relating to Ahmadabad and Surat and that it would be
impossible for such a large number of witnesses to be
produced before a Court outside the State of Gujarat for giving
                                                                    H
      18     SUPREME COURT REPORTS                [2011) 10 S.C.R.


A evidence before a Court where the language used was not
  Gujarati. Apart from the above, in all the offences which had
  been consolidated in one Sessions Case, there were 144
  charge-sheets/supplementary charge-sheets, each containing
  on an average 2000 to 3000 pages. It was submitted that if the
B prayer made in the Transfer Petition was allowed, it would result
  in complete injustice, as it was most likely that the trial would
  end in acquittal of the accused.

       13. Ms. Wahi also contended that the allegation of bias
c made against the Magistrate or Sessions Judge was no longer
  relevant since the matter had already been committed by the
  Magistrate to the Court of Sessions while the learned Sessions
  Judge had since been elevated as a Judge of the Gujarat High
  Court and the trial would be conducted by a Judge other than
0 the said Judge against whom the allegation of bias had been
  made. Ms. Wahi submitted that it was not as if the Petitioners
  were aggrieved by the entire judiciaty in the State, inasmuch
  as, such an allegation would be entirely misplaced and in the
  changed circumstances the arguments advanced in favour of
E transfer of the Sessions Case outside the State of Gujarat could
  no longer be justified and were liable to be rejected.

        14. Ms. Wahi submitted that the decision in Zahira
  Habibulla H. Sheikh's case (supra) was on a completely
  different set of facts, and, in any event, each case would have
F to be treated on its own set of facts and merits. Even the
  allegation of torture in custody has not been proved to the
  satisfaction of the Court.

          15. Ms. Wahi submitted that the case attempted to be
G made out on behalf of the Petitioners for transfer of the
     Sessions Trial outside the State of Gujarat, is based on
     suppression of material facts relating to the alleged non-supply
     of charge-sheet papers. It was urged that the same had been
     refused despite having been offered to the Petitioners and that
H,, 1an opportunity was duly given to the Petitioners to engage
  '   "•
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                        19
           ANR. [ALTAMAS KABIR, J.]
Advocates of their choice on their refusal to accept legal aid           A
as offered by the Court or even from the State Legal Services
Authority. In fact, most of the accused persons subsequently
engaged Advocates of their choice to represent and defend
them at the time of trial, which fact had been withheld from the
Court. Ms. Wahi submitted that all the allegations made by the           B
Petitioners against the Respondents were entirely false and
merited rejection.

     16. Having regard to the nature of the relief sought for by
the Petitioners, we have considered the submissions made on
behalf of respective parties and the materials on record with C
care and caution. It appears to us that at the initial stages of
the investigation and filing of charge-sheets some amount of
bias could well have been detected. However, once the matter
had gone out of the hands of the Magistrate concerned, no ·
further bias could be attributed to him. Similarly, the allegation D
of bias against the District & Sessions Judge was no longer
available since the incumbent had been elevated to the Bench
and the trial will be conducted by another learned Judge.

      17. However, as pointed out by Mr. Prashant Bhushan,               E
learned counsel appearing for the Petitioners, the manner in
which the charges had been framed, without giving the
Petitioners a meaningful opportunity of meeting the allegations
made against them in the charge-sheet, will ultimately have a
direct bearing on the trial itself. The duty of the Sessions Court
                                                                         F
to supply copies of the charge-sheet and all the relevant
documents relied upon by the prosecution under Sections 207
and 208 Cr.P.C. is not an empty formality and has to be
complied with strictly so that the accused is not prejudiced in
his defence even at the stage of framing of charge. The fact             G
that many of the accused persons were not provided with
copies of the charge-sheet and the other relevant documents,
as indicated in Sections 207 and 208 Cr.P.C., seriously affects
the right of an accused to a free and fair trial. lh the instant case,
in addition to the above, it has also to be kept in mind that most
                                                                         H
    20      SUPREME .COURT REPORTS               [2011) 10 S.C.R.


A of the accused persons in this case are from outside the State
  of Gujarat and are not, therefore, in a position to understand
  the documents relied upon by the police authorities as they were
  in Gujarati which most of the accused were unable to
  comprehend. Their demand for translated copies of the
B documents met with no response, and ultimately it was the very
  same documents in Gujarati, which were supplied to some of
  the accused in some of the cases.

        18. The physical torture which was said to have been
C inflicted on the Petitioners has come on record by way of
  affidavits to which there is no suitable explanation. Furthermore,
  the accused persons were not allowed to meet their lawyers
  without police presence, and as stated by them, it is only natural
  that an accused in custody will have second thoughts before
  making or reiterating allegations of torture against the very
D persons to whose custody they would have to return.
                                                              •
        19. Apart from the above, we also have to consider Ms.
  Wahi's submissions regarding the convenience of the
  prosecution which intends to produce a large number of
E witnesses, who are all said to be residents of the State of
  Gujarat. It has been submitted by Ms. Wahi that the examination
  of such a large number of witnesses could be compromised
  and/or jeopardized in the event they are required to travel
  outside the State of Gujarat in connection with the trial. There
F will also be a language problem for the witnesses to be
  examined outside the State of Gujarat, since the majority of the
  witnesses were acquainted mostly with Gujarati and would be
  at a disadvantage in providing a true picture of the series of
  incidents relating to the bomb blasts which were triggered off
G in the cities of Ahmedabad and Surat on 26th July, 2008.

        20. However, in our criminal justice delivery system the
  balance tilts in favour of the accused in case of any doubt in
  regard to the trial. The Courts have to ensure that an accused
  is afforded a free and fair trial where justice is not only done,
H but seen to be done and in the process the accused has to be
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                        21
           ANR. [ALTAMAS KABIR, J.]
given the benefit of any advantage that may enure to his/her             A
favour during the trial. As was observed by this Court in
Commissioner of Police Vs. Registrar, Delhi High Court
[(1996) 6 SCC 323], Article 21 of the Constitution enshrines
and guarantees the precious right of life and liberty to a person,
deprivable only on following the procedure established by law            B
in a fair trial, assured of the safety of the accused. Except in
certain matters relating·to economic offences or in regard to
national security, the burden lies heavily on the prosecution to
prove its case to the hilt and it is rarely that the accused is called
upon to prove his innocence.                                             c
     21. This is a case where the apprehension of the accused
being denied a free and fair trial within the State of Gujarat has
to be considered on the weight of the materials produced on
behalf of the accused in support of such apprehension and the
prejudice that may also be caused to the prosecution in                  D
presenting its case. That the facts involved in this case are of
a sensitive nature, cannot be denied, but that by itself cannot
be a ground for transfer of the trial outside the State of Gujarat.
A good deal of care and caution has to be exercised to see
whether the accused/petitioners have been able to make out               E
a case of bias and prejudice on the part of the State or the
prosecuting authorities which raises a very real and plausible
ground· for transferring the trial pending before the Special
Judge, Ahmedabad outside the State of Gujarat. Apart from the
above, what has also to be taken into consideration is a                 F
conceivable surcharged communal climate which could have
a direct bearing on the trial itself. The Court has to undertake
a balancing act between the interest of the accused, the victims
and society at large in the focus of Article 21 of the Constitution
to ensure a free and fair trial to the accused.                          G
     22. The question involved in this case has earlier fallen for
consideration in various other cases before this Court which
have been referred to hereinbefore. It will be profitable to refer
to some of the observations made by this Court in such cases.
                                                                         H
    22        SUPREME COURT REPORTS                   [2011] 10 S.C.R.


A         23. In this regard, we may first refer to a three-Judge Bench
    decision in the case of G.X. Francis & Ors. (supra), where also
    this Court was considering a Transfer Petition filed on the
    apprehension of bias in the minds of the accused. The said
    petition involved the transfer of a complaint wherein the accused
e   were said to have been concerned in one way or the other in
    defamatory statements against the complainant regarding a
    publication known as the "Niyogi Report". Authoring the
    judgment on behalf of the Bench, Vivian Bose, J. observed that
    where there is unanimity of testimony from both sides about the
c   nature of the surcharged communal tension in the area in
    question and the local atmosphere is not conducive to a fair
    and impartial trial, there is a good ground for transfer. The
    learned Judge also observed that public confidence in the
    fairness of a trial held in such an atmosphere would be seriously
    undermined, particularly among reasonable Christians all over
0
    India, not because the Judge was unfair or biased but because
    the machinery of justice is not gea~ed to work in the midst of
    such co11ditions. 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".
E
          24. We may now refer to another three-Judge Bench
    decision of this Court in the case of Gurcharan Dass Chadha
    Vs. State of Rajasthan [(1966) 2 SCR 678 =AIR 1966 SC
    1418], which also involved a Transfer Petition based on the
F   ground of reasonable apprehension on the part of the petitioner
    that justice would not be done to him by the Court before whom
    the trial was ·pending under the provisions of the Penal Code
    and the Prevention of Corruption Act. While disposing of the
    matter, this Court observed as follows :
G
         "A case is transferred if there is a reasonable
         apprehension on the part of a party to a case that justice
         will not be done. A petitioner is not required to demonstrate
         that justice will inevitably fail. He is entitled to a transfer if
         he shows circumstances from which it can be inferred that
H
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                     23
           ANR. [ALTAMAS KABIR, J.]

     he entertains an apprehension and that it is reasonable in       A
     the circumstances alleged. It is one of the principles of the
     administration of justice that justice should not only be done
     but it should be seen to be done. However, a mere
     allegation that there is apprehension that justice will not be
     done in a given case does not suffice. The Court has             B
     further to see whether the apprehension is reasonable or
     not."

     25. The aforesaid question once again cropped up in
Maneka Sanjay Gandhi & Anr. Vs. Miss Rani Jethmalani                  c
[(1979) 4 SCC 169], in a Transfer Petition filed, inter alia, on
three grounds, namely,

      (i)     that the parties (complainant and petitioners) reside
              in Delhi and some formal witnesses also belong to
              Delhi;                                                  D

      (ii)    that the petitioner is not able to procure competent
              legal service in Bombay; and

      (iii)   that the atmosphere in Bombay is not congenial to
                                                                      E
              a fair and impartial trial of the case against her.

       Referring to the decision in G.X. Francis's case (supra) a
Three-Judge· Bench of this Court, dismissed the Transfer
 Petition upon holding that none of the allegations made by the
 petitioner made out a case that a fair trial was not possible in     F
the Court where the matter was pending. The mere words of
an interested party was insufficient to convince the Court that
she was in jeopardy or the Court might not be able to conduct
the case under conditions of detachment, neutrality or
uninterrupted progress. This Court, however, went on to say that      G
it could not view with unconcern the potentiality of a flare up and
the challenge to a fair trial. In such circumstances, this Court
made certain precautionary observations to protect the
petitioner and to ensure for her a fair trial. In K. Anbazhagan
Vs. Superintendent of Police, Chennai & Ors. [(2004) 3 SCC            H
    24       SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A   788]. while disposing of two transfer petitions, the learned
    Judges observed as follows :

         "A free and fair trial is a sine qua non of Article 21 of the
         Constitution. It is trite law that justice should not only be
B        done but it should be seen to have been done. If the
         criminal trial is not free and fair and not free from bias,
         judicial fairness and the criminal justice system would be
         at stake shaking the confidence of the public in the system
         and woe would be the rule of law. It is important to note
         that in such a case the question is not whether the
c        petitioner is actually biased but the question is whether the
         circumstances are such that there is a reasonable
         apprehension in the minds of the petitioner."

          26. Before we proceed to the latest views expressed by
D   this Court in a Transfer Petition also praying for transfer of a
    trial outside the State of Gujarat on account of bias and a
    vitiated communal atmosphere, we may refer to a slightly
    different view taken by this Court by a Bench of two-Judges in
    the case of Abdul Nazar Madani Vs. State of T.N. & Anr.
E   [(2000) 6 SCC 204]. While disposing of a Transfer Petition filed
    by the accused in the Coimbatore Serial Bomb Blasts case on
    the allegation that the atmosphere in the State of Tamil Nadu
    in general and in Coimbatore in particular, being so communally
    surcharged that his fair and impartial trial there would be
F   seriously impaired, this Court held that the purpose of a criminal
    trial is to dispense fair and impartial justice uninfluenced by
    extraneous considerations. This Court observed that the
    apprehension of not getting a fair and impartial inquiry or trial
    is required to be reasonable and not imaginary, based upon
G   conjectures and surmises. The mere existence of a surcharged
    atmosphere without there being proof of inability of the Court
    of holding a fair and impartial trial, could not be made a ground
    for transfer of a case. The alleged communally surcharged
    atmosphere has to be considered in the light of the accusations
H   made and the nature of the crimes committed by the accused
  JAHID SHAIKH & ORS. v. STATE OF GUJARAT &                    25
           ANR. [ALTAMAS KABIR, J.]
seeking transfer of the case. It was observed that no universal      A
and hard and fast rules can be prescribed for deciding a
Transfer Petition which has always to be decided on the basis
of the facts of each case.

     27. As has been stated hereinbefore, in Zahira Habibul/a        8
H. Sheikh's case (supra), in order to ensure a free and fair trial
the atmosphere in which the case is tried should be conducive
to the holding of a fair trial. The absence of a congenial
atmosphere for such a fair and impartial trial was held to be a
good ground for transfer of the case from Gujarat to                 C
Maharashtra.

      28. However, such a ground, though of great importance,
cannot be the only aspect to be considered while deciding
whether a criminal trial could be transferred out of the State
which could seriously affect the prosecution case, considering       D
the large number of witnesses to be examined to prove the
case against the accused. The golden thread which runs
through all the decisions cited on behalf of the parties, is that
justice must not only be done, but must also be seen to be
done. If the said principle is disturbed, fresh steps can always     E
be taken under Section 406 Cr.P.C. and Order XX.XVI of the
Supreme Court Rules, 1966 for the same reliefs.

      29. The offences with which the accused have been
charged are of a very serious nature, but except for an
                                                                   F
apprehension that justice would not be properly administered,
there is little else to suggest that the charged atmosphere which
existed at the time when the offences were alleged to have
been committed, still exist and was likely to prejudice the
accused during the trial. All judicial officers cannot be tarred ·
with the same brush and denial of a proper opportunity at the G
stage of framing of charge, though serious, is not
insurmountable. The accused have their remedies elsewhere
and the prosecution still has to prove its case. As mentioned
earlier, the communally surcharged atmosphere which existed
                                                                     H
    26        SUPREME COURT REPORTS                  [2011] 10 'S.C.R.


A   at the time of the alleged incidents, has settled down
    considerably and is no longer as volatile as it was previously.
    The Presiding Officers against whom bias had been alleged,
    will no longer be in charge of the proceedings of the trial. The
    conditions in Gujarat today are not exactly the same as they
B   were at the time of the incidents, which would justify the shifting
    of the trial from the State of Gujarat. On the other hand, in case
    the Sessions Trial is transferred outside the State of Gujarat
    for trial, the prosecution will have to arrange for production of
    its witnesses, who are large in number, to any venue that may
c   be designated outside the State of Gujarat. At the present
    moment, the case for transfer of the trial outside the State of
    Gujarat is based on certain incidents which had occurred in the
    past and have finally led to the filing of charges against the
    accused. The main ground on which the Petitioners have
0   sought transfer is an apprehension that communal feelings may,
    once again, raise its ugly head and permeate the proceedings
    of the trial if it is conducted by the Special Judge, Ahmedabad.
    However, such an allegation today is more speculative than real,
    but in order to dispel such apprehension, we also keep it open
    to the Petitioners that in the event the apprehension of the
E   petitioners are proved to be real during the course of the trial,
    they will be entitled to move afresh before this Court for the relief
    sought for in the present Transfer Petition.

         30. The Transfer Petition is disposed of with the aforesaid
F   observations. There will be no order as to costs.

    8.8.8.                             Transfer petition disposed of.