MRUDUL M. DAMLE & ANR.versusC.B.I. NEW DELHI

                     [2012] 5 S.C.R. 919


                MRUDUL M. DAMLE & ANR.                             A
                               v.
                      C.B.I. NEW DELHI
           (Transfer Petition (Crl.) No. 17 of 2012)

                        MAY 10, 2012
                                                                   B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

      Code of Criminal Procedure, 1973 - s. 406 - Prayer for
transfer of criminal case from Delhi to Thane, Maharashtra -
On ground of convenience of the two petitioners-accused and        C
the witnesses cited in the charge sheet by the prosecution -
Petitioners facing prosecution under the Prevention of
Corruption Act, 1988 for amassing assets disproportionate to
known sources of income - 82 out of the 92 witnesses from
Maharashtra - Petitioner no. 1 working in Thane while              D
petitioner no. 2 posted in Gujarat - Held: Trial in Rohini Court
at Delhi would be inconvenient not only to the accused
persons but also to almost all the witnesses cited by the
prosecution except 4 who may be in or around Delhi - Case
even otherwise not Delhi centric in the true sense inasmuch        E
as the only reason the FIR was registered in Delhi was the
fact that petitioner No. 2 was posted in Delhi during a part of
the check period - CBI is fully equipped with an office at
Bombay and a Court handling CBI cases is established at
Thane also, thus, no reason why the transfer of the case would     F
cause any hardship to the prosecution especially when
searches relied upon by the prosecution were conducted at
Thane in which the prosecution claims to have discovered a
part of the assets allegedly acquired by the petitioners -
Expeditious disposal of the trial is a/so a facet of fairness of   G
the trial and speedy trial is intact a fundamental right - When
witnesses from distant places are sought to be summoned,
early conclusion of trial becomes so much more difficult apart
from the fact that the prosecution has to bear additional burden
                             919                                   H
    920      SUPREME COURT REPORTS               [2012] 5 S.C.R.


A   by way of travelling expenses of the official and non-official
    witnesses summoned to appear before the Court - Criminal
    Case pending in the Court of Special Judge, CBI Cases,
    Rohini Courts, New Delhi accordingly transferred to the Court
    of Special Judge, CBI Cases, Court of Sessions at Thane,
B   Maharashtra - Prevention of Corruption Act, 1988 - s.13(1)(e)
    and 13(2).

       In the instant petition under Section 406 of the Code
  of Criminal Procedure, 1973, the petitioners prayed for
  transfer of Criminal Case pending in the Court of Special
C Judge, CBI Cases, Rohini Courts, New Delhi to the Court
  of Special Judge, CBI Cases, Court of Sessions at Thane,
  Maharashtra on the ground of convenience of the parties
  and the witnesses cited in the charge sheet by the
  prosecution.
D
       The petitioners are husband and wife. While
  petitioner No.2-husband is currently posted as Assistant
  Commissioner, Central Excise, Customs and Service Tax
  at Vapi, Gujarat, the petitioner no.1-wife is practicing as
E a Chartered Accountant in the State of Maharashtra. They
  are facing prosecution under Sections 13(1)(e) and 13(2)
  of the Prevention of Corruption Act, 1988 for amassing
  assets disproportionate to the known sources of income.
  88 out of the 92 witnesses listed in the charge-sheet are
F from the State of Maharashtra. The petitioners asserted
  that transfer of the case from Delhi to Thane would not
  only be convenient to the two accused persons facing
    the trial but also to the witnesses cited by the prosecution
  who shall find it easier to appear for their deposition at
G Thane rather than travelling all the way to Delhi.

          Allowing the petition, the Court

      HELD: 1. Section 406 of the Cr.P.C. empowers this
  Court to transfer cases from one High Court to another
H High Court or from a Criminal Court subordinate to one
 MRUDUL M. DAMLE & ANR. v. C.B.I. NEW DELHI              921


High Court to another Criminal Court of equal or superior        A
jurisdiction subordinate to another High Court whenever
it is made to appear to this Court that an order to that
effect is expedient for the ends of justice. The question
of expediency depends upon the facts of each case, the
paramount consideration being the need to meet the ends          B
of justice. [Para 5] [925-F-H; 926-A-B]

    Dr. Subramaniam Swamy v. Ramakrishna Hegde (1990)
1 sec 4: 1989 (1) Suppl. SCR 469 - relied on.

    2.1. The material facts relevant to the determination C
of the question of expediency are not in dispute. The
charge-sheet enlists 92 witnesses, 88 out of whom are
from outside Delhi and from different places in
Maharashtra. Petitioner No.1 is a Chartered Accountant
practising in Thane, while petitioner No.2, the only other D
accused in .the case is currently posted at Vapi in the
State of Gujarat which is in comparison to Delhi closer
to Thane. In light of these facts, it is obvious that the trial
in Rohini Court at Delhi would be inconvenient not only
to the accused persons but also to almost all the E
witnesses cited by the prosecution except 4 who may be
in or around Delhi. The case is even otherwise not Delhi
centric in the true sense inasmuch as the only reason the
FIR was registered in Delhi was the fact that petitioner
No.2 was posted in Delhi during a part of the check F
period. [Para 6] [926-B-E]

     2.2. In light of the fact that CBI is fully equipped with
an office at Bombay and a Court handling CBI cases is
established at Thane also, there is no reason why the
transfer of the case would cause any hardship to the             G
prosecution especially when searches which have been
relied upon by the prosecution have been conducted at
Thane in which the prosecution claims to have
discovered a part of the assets allegedly acquired by the
petitioners. [Para 11] [928-D-F]                                 H
    922       SUPREME COURT REPORTS            [2012] 5 S.C.R.

A       2.3. There is no gainsaying that a trial at Delhi in
  which witnesses are expected to travel from Maharashtra
  is bound to linger on for years. Expeditious disposal of
  the trial is also a facet of fairness of the trial and speedy
  trial is intact a fundamental right. When witnesses from
B distant places are sought to be summoned, early
  conclusion of the trial becomes so much more difficult
  apart from the fact that the prosecution will have to bear
  additional burden by way of travelling expenses of the
  official and non-official witnesses summoned to appear
c before the Court. [Para 12) [929-B-D]
         Bhiaru Ram and Ors. v. CBI (2010) 7 SCC 799: 2010
    (9) SCR 554 and Nahar Singh v. Union of India (2011) 1 SCC
    307: 2010 (13) SCR 851- distinguished.

D       Abdul Nazar Madani v. State of Tamil Nadu, (2000) 6
    SCC 204: 2000 (3) SCR 1028; Shree Baidyanath Ayurved
    Bhawan Pvt. Ltd. v. State of Punjab and Ors. (2009) 9 SCC
    414: 2009 (12) SCR 326; Mrs. Sesamma Phillip v. P. Phillip
    (1973) 1 SCC 405; Captain Amarinder Singh v. Prakash
E   Singh Badal (2009) 6 SCC 260: 2009 (9) SCR 194;
    Jayendra Saraswathy Swamigal v. State of Tamil Nadu (2005)
    8 SCC 771: 2005 (4) Suppl. SCR 556 and Hussainara
    Khatoon & Ors. v. Home Secretary, State of Bihar, Patna
    (1980) 1 sec 81: 1979 (3) SCR 169 - relied on.
F      3. In the result, Criminal Case No.45 of 2008 entitled
  C.B.I v. Mrudul Milind Damle & Anr. pending in the Court
  of Special Judge, CBI Cases, Rohini Courts, New Delhi
  is transferred to the Court of Special Judge, CBI Cases,
  Court of Sessions at Thane, Maharashtra. [Para 13) [929-
G E-F]
                        Case Law Reference:
          1989 (1) Suppl. SCR 469 relied on          Para 5

H         2000 (3) SCR 1028       relied on          Para 8
  MRUDUL M. DAMLE & ANR. v. C.B.I. NEW DELHI               923


    2009 (12) SCR 326            relied on            Para 9       A

    (1973) 1 sec 405             relied on            Para 10

    2009 (9) SCR 194             relied on            Para 10
    2005 (4) Suppl. SCR 556 relied on                 Para 10
                                                                   B
    2010 (9) SCR 554             distinguished        Para 11

    2010 (13) SCR 851            distinguished        Para 11

    1979 (3) SCR 169             relied on            Para 12
                                                                   c
      CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) No. 17 of 2012.

    Petition under Section 406 of the Code of Criminal
Procedure, 1973.
                                                                   D
    Vinay Navare, Keshav Ranjan, Satyajeet Kumar, Abha R.
Sharma for the Petitioners.

     H.P. Rawal, ASG, Ranjana Narayan, Anando Mukherje,
Arvind Kumar Sharma for the Respondent.
                                                                   E
    The Judgment of the Court was delivered by

     T.S. THAKUR, J. 1. In this petition under Section 406 of
the Code of Criminal Procedure, 1973, the petitioners pray for
transfer of Criminal Case No. 45 of 2008 pending in the Court F
of Special Judge, CBI Cases, Rohini Courts, New Delhi to the
Court of Special Judge, CBI Cases, Court of Sessions at
Thane, Maharashtra on the ground of convenience of the
parties and the witnesses cited in the charge sheet by the
prosecution.                                                   G

     2. Petitioners are husband and wife. While petitioner No.2-
husband is currently posted as Assistant Commissioner,
Central Excise, Customs and Service Tax at Vapi, Gujarat,
petitioner No.1-wife is practicing as a Chartered Accountant in
                                                                   H
    924      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   the State of Maharashtra. Both the petitioners are facing
    prosecution in Criminal Case No.45 of 2008 for offences
    punishable under Sections 13(1 )(e) and 13(2) of the Prevention
    of Corruption Act, 1988 read with Section 109 IPC. The said
    case was registered on 14th July, 2005 against the petitioner-
s   husband on the basis of recovery of cash and other property
    in the course of searches conducted at his houses in New Delhi
    and Thane. The bank locker in the name of the petitioner No.1-
    wife was also seized in the course of the said search
    operations.
c       3. The prosecution case, it appears, is that the petitioner
   No.2-Milind Purushottam Damle while posted as Assistant
  Commissioner, Central Excise, Customs and Service Tax at
   New Delhi, has amassed assets disproportionate to the known
  sources of his income in his name and in the name of his family
D during the period 1.4.2000 to 2.2.2005. Upon completion of the
  investigation a charge-sheet was filed against the couple in
  which the prosecution charged the husband with the
  commission of offences punishable under Sections 13(1)(e)
  and 13(2) of the Prevention of Corruption Act, 1988 while the
E wife was accused of abetment of the said offence punishable
  under Sections 13(1 )(e) and 13(2) of the Prevention of
  Corruption Act, 1988 read with Section 109 IPC. The charge-
  sheet in question was initially filed before the Special Judge,
  CBI cases, Patiala House, New Delhi but subsequently
F transferred to the Court of Special Judge, CBI cases, Rohini,
  New Delhi. The charge-sheet enlists as many as 92 witnesses
  to prove the prosecution case. It is not in dispute that 88 out of
  the said 92 witnesses are from the State of Maharashtra, most
  of them being either from Thane, Mumbai or Navi Mumbai
G districts while some are from Pune or Satara districts of that
  State. The remaining 4 witnesses cited at serial nos.62, 68, 91
  and 92 of the charge-sheet are from Delhi. Two of the said four
  witnesses are said to be no longer in Delhi. The petitioners
  allege that they have been regula([y attending the Court in Delhi
H ever since the charge-sheet was filed but not much progress
  MRUDUL M. DAMLE & ANR. v. C.8.1. NEW DELHI                925
              [T.S. THAKUR, J.]

has been made towards the conclusion of the trial so far. A
Petitioner No.1, who happens to be a practising Chartered
Accountant in Thane, has apart from her professional
commitments, responsibility towards her mother who is aged
75 years and who stays with her. Appearance of the said
petitioner in Delhi would, therefore, cause inconvenience to her B
on personal, professional and even the family front. So also
petitioner No.2 who is currently posted at Gujarat finds it
extremely inconvenient to travel all the way to Delhi on every
date of hearing. The petitioners assert that transfer of the case
from Delhi to Thane would, in the above circumstances, not only C
be convenient to the two accused persons facing the trial but
also to the witnesses cited by the prosecution who shall find it
easier to appear for their deposition at Thane rather than
travelling all the way to Delhi.
                                                                    D
     4. The petition has been opposed by the respondent who
has filed a counter-affidavit sworn by Sr. Supdt. of Police, ACU-
IV, CBI, New Delhi, in which the respondent has tried to justify
the filing of the chargesheet in Delhi on the ground that
petitioner No.2 was during the check period i.e. 1.4.2000 to
2.2.2005 posted at Central Excise, New Delhi as Assistant           E
Commissioner w.e.f. 19th December, 2002 till the registration
of the FIR. The counter-affidavit does not however dispute the
fact that 88 out of 92 witnesses cited by the prosecution are
from Maharashtra.
                                                                   F
     5. We have heard learned counsel for the petitioners and
Mr. H.P. Rawal, Additional Solicitor General for the respondent.
Section 406 of the Cr.P.C. empowers this Court to transfer
cases from one High Court to another High Court or from a
Criminal Court subordinate to one High Court to another G
Criminal Court of equal or superior jurisdiction subordinate to
another High Court whenever it is made to appear to this Court
that an order to that effect is expedient for the ends of justice.
The source and the plentitude of the power to transfer are not
disputed before us by Mr. Rawat, counsel appearing for the H
    926      SUPREME COURT REPORTS                [2012] 5 S.C.R.

A   respondent. Even otherwise as observed by this Court in Dr.
    Subramaniam Swamy v. Ramakrishna Hegde (1990) 1 SCC
    4, the question of expediency depends upon the facts of each
    case, the paramount consideration being the need to meet the
    ends of justice.
B
        6. The material facts relevant to the determination of the
  question of expediency are not in dispute inasmuch as the
  respondent do not dispute that the chargesheet enlists 92
  witnesses, 88 out of whom are from outside Delhi and from
  different places in Maharashtra. It is also not in dispute that
C petitioner No.1 is a Chartered Accountant practising in Thane,
  petitioner No.2 who is the only other accused in the case who
  is currently posted at Vapi in the State of Gujarat which is in
  comparison to Delhi closer to Thane. It is in the light of those
  admitted facts obvious that the trial in Rohini Court at Delhi
D would be inconvenient not only to the accused persons but also
  to almost all the witnesses cited by the prosecution except 4
  who may be in or around Delhi. The case is even otherwise
  not Delhi centric in the true sense inasmuch as the only reason
  the FIR was registered in Delhi was the fact that petitioner No.2
E was posted in Delhi during a part of the check period.

       7. Mr. Rawal no doubt argued that a transfer of the case
  outside Delhi will cause prejudice to the respondent but was
  unable to show how that would be so. Mr. Rawal had in fact
F taken  time to examine whether the list of witnesses could be
  suitably pruned to expedite the conclusion of the trial. But after
  taking instructions, Mr. Rawal submitted that it would not be
  possible at this stage to make any such statement, and rightly
  so, because it is only the public prosecutor who can take a call
G on that aspect after the trial starts, depending upon how the
  facts sought to be proved are seen by him or have been
  proved.
         8. In Abdul Nazar Madani v. State of Tamil Nadu, (2000)
    6 SCC 204, this Court while dealing with a prayer for transfer
H   of the criminal case from one Court to other emphasized the
 MRUDUL M. DAMLE & ANR. v. C.B.I. NEW DELHI                927
             [T.S. THAKUR, J.]

importance of fairness of a trial and observed that while no       A
universal or 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, convenience of the parties including
the witnesses to be produced at the trial is a relevant
consideration. This Court observed:                                B

    "7. The purpose of the criminal trial is to dispense fair and
    impartial justice uninfluenced by extraneous
    considerations. When it is shown that public confidence
    in the fairness of a trial would be seriously undermined, C
    any party can seek the transfer of a case within the State
    under Section 407 and anywhere in the country under
    Section 406 Cr.P.C. The apprehension of not getting a fair
    and impartial inquiry or trial is required to be reasonable
    and not imaginary, based upon conjectures and surmises.
    If it appears that the dispensation of criminal justice is not D
    possible impartially and objectively and without any bias,
    before any court or even at any place, the appropriate
    court may transfer the case to another court where it feels
    that holding of fair and proper trial is conducive. No
    universal or hard and fast rules can be prescribed for E
    deciding a transfer petition which has always to be decided
    on the basis of the facts of each case. Convenience of the
    parties including the witnesses to be produced at the trial
    is also a relevant consideration for deciding the transfer
    petition. The convenience of the parties does not F
    necessarily mean the convenience of the petitioners alone
    who approached the court on misconceived notions of
    apprehension. Convenience for the purposes of transfer
    means the convenience of the prosecution, other accused,
    the witnesses and the larger interest of the society."         G

     9. Similarly, in Shree Baidyanath Ayurved Bhawan Pvt.
Ltd. v. State of Punjab and Ors. (2009) 9 SCC 414, this Court
held that the convenience of the parties including the witnesses
to be produced at the trial is a relevant consideration while      H
    928       SUPREME COURT REPORTS                   [2012) 5 S.C.R.


A   directing transfer of criminal case from one Court situated in
    one State to another situated in another State.

         10. In Mrs. Sesamma Phillip v. P. Phillip (1973) 1 SCC
    405, which happened to be a matrimonial case, a five-Judge
B   Bench of this Court transferred a criminal case on the ground
    of safety of the women-petitioner from Delhi to Durg. So also
    in Captain Amarinder Singh v. Prakash Singh Badal (2009)
    6 SCC 260, this Court held that an impartial trial and
    convenience of the parties & witnesses are relevant
    considerations for deciding a transfer petition. In Jayendra
C   Saraswathy Swamiga/ v. State of Tamil Nadu (2005) 8 SCC
    771, this Court transferred a case from Kanchipuram to
    Pondicherry having regard to the convenience of the
    prosecuting agency and the language in which almost all the
    witnesses had to depose before the Trial Court.
D
           11. In the light of the above decisions and the fact that CBI
     is fully equipped with an office at Bombay and a Court handling
     CBI cases is established at Thane also, we see no reason why
    the transfer of the case would cause any hardship to the
E   prosecution especially when searches which have been relied
     upon by the prosecution have been conducted at Thane in which
    the prosecution claims to have discovered a part of the assets
    allegedly acquired by the petitioners. Reliance placed by Mr.
    Rawal upon the decision of this Court in Bhiaru Ram and Ors.
F   v. CBI (2010) 7 sec 799, is of no assistance to him. In Bhiaru
    Ram's case (supra) the main accused had not filed for transfer
    of the case and the number of witnesses cited were not so
    large as in the present case nor were bulk of the witnesses
    located in the State to which the case was sought to be
G   transferred. This Court also had noticed the serious
    apprehensions regarding the fairness of the trial keeping in view
    the fact that the accused was an influential person. So also the
    decision in Nahar Singh v. Union of India (2011) 1 SCC 307,
    relied upon by Mr. Rawal was dealing with a totally different fact
    situation. The prayer for transfer in that case was not based so
H
  MRUDUL M. DAMLE & ANR. v. C.B.I. NEW DELHI                   929
              [T.S. THAKUR, J.]

much on the ground of convenience of the accused and the               A
witnesses as it was on the independence of the Court before
whom the matter was pending. This Court felt that transfer on
that ground would be a reflection upon the credibility of not only
the entire judiciary but also the prosecuting agency. That is not
the position or the ground in the case at hand.                        B

      12. There is no gainsaying that a trial at Delhi in which
witnesses are expected to travel from Maharashtra is bound
to linger on for years. Expeditious disposal of the trial is also a
facet of fairness of the trial and speedy trial is intact a            C
fundamental right as observed by this court in Hussainara
Khatoon & Ors. v. Home Secretary, State of Bihar, Patna
(1980) 1 SCC 81. When witnesses from distant places are
sought to be summoned, early conclusion of the trial becomes
so much more difficult apart from the fact that the prosecution
will have to bear additional burden by way of travelling               D
expenses of the official and non-official witnesses summoned
to appear before the Court.

     13. In the result, we allow this petition and transfer Criminal
Case No.45 of 2008 entitled C.B.I v. Mrudul Milind Damle &             E
Anr. pending in the Court of Special Judge, CBI Cases, Rohini
Courts, New Delhi to the Court of Special Judge, CBI Cases,
Court of Sessions at Thane, Maharashtra. The record of the
case shall be forthwith transferred to the transferee Court which
shall take up the matter and dispose of the same as                    F
expeditiously as possible.

B.B.B.                                 Transfer Petition allowed.