USMANGANJADAMBHAIVAHORAversusSTATE OF GUJARAT & ANR.

                             [2016] l S.C.R. 56



A                 USMANGANJADAMBHAIVAHORA
                                     v.

                      STATE OF GUJARAT & ANR.
                 (Criminal Appeal Nos. 1592-1593 of 2015)
B                           JANUARY 8, 2016
            [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
           Code of Criminal Procedure. 1973 - s. 408 - Power of
    Sessions Judge to transfer cases and appeals - Application uls.
    408 to transfer the matter from the court where trial was pending to
c   the court of another Sessions Judge - Rejected by Principal Sessions
    Judge holding that once the trial had commenced, he has no
    jurisdiction to transfer the case - In appeal, High Court directed
    the Principal Sessions Judge to transfer the case to any other
    Sessions Judge - Sustainability of·- Held: Not sustainable - Solely
D   because accused filed an application for transfer. the judge is not
    required to express his disinclination - He is required under law to
    do his duty - He is not expected to show unnecessary sensitivity to
    the callous allegations made by the accused and recuse himself
    from the case - if this can be the foundation to transfer a case, it
    would bring anarchy in the adjudicatory process - Unscrupulous
E
    litigants would indulge themselves in court hunting.
          Partly allowing the appeals, the Court
          HELD: 1.1 Seeking transfer at the drop of a hat is
    inconceivable. An order of transfer is not to be passed as a matter
F   of routine or merely because an interested party has expressed
    some apprehension about proper conduct of the trial. The power
    has to be exercised cautiously and in exceptional situations, where
    it becomes necessary to do so to provide credibility to the trial.
    There has to be a real apprehension that there would be
    miscarriage of justice. [Para 11] [63-E-F]
G
          Nahar Singh Yadav and another v. Union of India and
          others 2010 (13) SCR 851:(2011) 1 SCC 307 - relied
          on.
          1.2 In the instant case, the apprehension that has been
H   stated is absolutely mercurial and cannot remotely be stated to
                                    56
USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT                         57



be reasonable. The High Court could not have deduced that he A
should have declined to conduct the trial. This kind of observation
is absolute impermissible in law, for there is no acceptable reason
on the part of the trial judge to show his disinclination. Solely
because an accused has filed an application for transfer, he is not
required to express his disinclination. He is required under law
                                                                    B
to do his duty. He has to perform his duty and not to succumb to
the pressure put by the accused by making callous allegations.
He is not expected to show unnecessary sensitivity to such
allegations and recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in the
adjudicatory process. The unscrupulous litigants will indulge c
themselves in court hunting. If they are allowed such room, they
do not have to face the trial before a court in which they do not
feel comfortable. The High Court gravely erred in this regard.
So far as the non-examination of the witnesses is concerned, the
matter had travelled to the High Court in revision assailing the
                                                                    D
order passed under Section 319 CrPC. The High Court did not
advert to the issue who was seeking adjournment and what was
the role of the trial judge. Grant of adjournment could have been
 dealt with by the High Court in a different manner. It has to be
 borne in mind that a judge who discharges his duty is bound to
 commit errors. The same have to be rectified. The accused has E
 never moved the superior court seeking its intervention for
 speedy trial. The High Court has innovated a new kind of approach
 to transfer the case. [Para 12] [63-G; 64-B-F]
       1.3 The order passed by the High Court cannot be sustained.
The finding as regards the jurisdiction of the Sessions Judge is      F
sustained, and as far as the direction to the Principal Sessions
Judge to transfer the case from the 3"' Additional Sessions Judge
to some other court being vulnerable and wholly unsustainable
is set aside. The trial judge to proceed with the trial and dispose
of the same. [Para 13] [65-B]
                                                                      G
      Gurcharan Dass Chadha v. State of Rajasthan AIR 1966
      SC 1418:1966 SCR 678; Abdul Nazar Madani v. State
      of T.N. 2000 (3) SCR 1028:(2000) 6 SCC 204; Captain
      Amarinder Singh v. P.;rkash Singh Badal and others
      2009 (9) SCR 194:(2009) 6 SCC 260; Lalu Prasad
                                                                      H
58               SUPREME COURT REPORTS                         [2016] I S.C.R.


A          alias Latu Prasad Yadav v. State of Jharkhand 2013
           (8) SCR163:(2013) 8 SCC 593; K.P. Tiwari v. State of
           M.P. 1993 (3) Suppl. SCR 497:1994 Supp. (1) sec
           540 - referred to.
                              Case Law Reference
B    1966 SCR 678                      referred to.              Para 7
     2000 (3) SCR 1028                 referred to.              Paras
     2009 (9) SCR 194                  referred to.              Para9
     2013 (8) SCR163                   referred to.              Para 10
c
     2010 (13) SCR 851                 relied on.                Para 11
     1993 (3) Suppl. SCR 497           referred to.              Para 12
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     Nos. 1592-1593 of2015
D          From the Judgment and Order dated 08.10.2015 of the High Court
     of Gujarat at Ahmedabad. in Special Criminal Application (Quashing)
     No. 4884 of 2015 with Criminal Misc. Application No. 17138 of2015.
           Sanjoy Ghose, Kaustubh Anshuraj for the Appellant.
E          Nikhil Goel, Naveen Goel, Marsook Bafaki for the Respondents.
           The Judgment of the Court was delivered by
            DIPAK MISRA, J. l. The seminal issue that has emerged for
     consideration in these appeals is whether the High Court in exercise of
     jurisdiction under Article 227 of the Constitution of India is justified in
F    quashing the order dated 14.08.2015 passed by the Principal Sessions
     Judge, Kheda at Nadiad in Criminal Miscellaneous Application No. 545
     of 2015 arising from the Sessions Case No. 291 of 2003 instituted for
     the offences punishable under Sections 147, 148, 149, 364A, 120B, 447,
     342 and 506(2) of the Indian Penal Code (!PC) and further directing the
G    learned Principal Sessions Judge to transfer the Sessions Ca~e to any
     other court of the learned Additional Sessions Judge in the same Sessions
     Division from the court of the 3" Additional Sessions Judge, Kheda.
            2. Be it stated at the beginning, the High Court has posed two
     questions - one of which pertains to exercise of power under sub-section
     (1) of Section 408 of the Code of Criminal Procedure, 1973 (CrPCJ by
H
 USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT                                 59
               [DIPAK MISRA, J.]

the Sessions Judge to transfer a case from one Additional Sessions Judge       A
to any other Additional Sessions Judge in his Sessions Division after
commencement of the trial, and the other, whether the case deserves to
be transferred. Answering the first issue, the High Court has opined that
the transfer petition preferred under Section 408 CrPC before the learned
Principal Sessions Judge is maintainable. The view expressed by the
                                                                               B
High Court on this score appears to be correct and hence, we affirm the
same. The principal issue warranting delineation is the justification for
allowing application for transfer from the court where the trial was pending
to the court of another learned Additional Sessions Judge.
       3. The facts which are essential to be stated are that the 2"'
respondent faced trial for the offences mentioned hereinbefore in              c
Sessions Case No. 291 of 2003. After examination of 18 prosecution
witnesses, the informant preferred an application under Section 319 CrPC
for arraigning one Natubhai Maganbhai Edanwala as an accused in the
sessions case. The said application was rejected by the learned trial
judge vide order dated 18.05.2006. Aggrieved by the aforesaid rejection,       D
the informant preferred Special Criminal Application No. 1444 of 2006
before the High Court which vide order dated 02.12.2011 rejected the
same. The said order was assailed before this Court in Special Leave
Petition (Criminal) No. 17262 of 2012 which was dismissed on 11.01.2013
with the observation that it would be open to the informant to file an
appropriate application under Section 319 CrPC, if at the end of the           E
examination of all the witnesses, some material is found to connect the
person sought to be arraigned as an accused in the alleged crime. As
the factual matrix would exposit, the informant filed another application
under Section 319 CrPC after the examination of the prosecution
witnesses Nos. 19 to 23 and the application was allowed. The newly             F
arraigned accused preferred Special Criminal Application No. 1731 of
2013 before the High Court challenging the said order, and the High
Court had stayed the same.
        4. As the factual score would undrape on 31.07.2015 when the
sessions trial was fixed before the learned 3'' Additional Sessions Judge,     G
Kheda at Nadiad, as alleged, the second respondent was standing in the
parking area meant for the four wheelers and at that time he could
overhear certain conversation between the informant and his son that
the trial would be surely taken up for hearing from the next date onwards
and all the accused persons would definitely be convicted. As further
                                                                               H
60                SUPREME COURT REPORTS                           (2016] l S.C.R.


A    alleged, the Presiding Officer said something regarding the trial which
     the accused correlated with the conversation he had overheard between
     the informant and his son. Under such circumstances, he filed Criminal
     Miscellaneous Application No. 545 of 2015 under Section 408 CrPC
     before the Principal Sessions Judge, Kheda for transfer of the sessions
     case to any other court in the same Sessions Division. The learned
B
     Principal Sessions Judges called for the remarks of the concerned
     Presiding Officer and, after taking into consideration the remarks and
     adverting to the position of law, rejected the application. The learned
     Principal Sessions Judge while rejecting the application had observed
     that once the trial commenced, he had no jurisdiction to transfer the
c    case in exercise of the power under Section 408 CrPC. As has been
     stated earlier, the High Court had unsettled the said view and we have
     no hesitation to say correctly so.
             5. The High Court, as has been indicated earlier, has referred to
     the conversation between the parties and the impression of the accused.
D    After narrating the same, the High Court has observed that the accused-
     petitioner definitely is in dilemma and whether to term his apprehension
     as reasonable or not, the result of the reaction of a hypersensitive mind
     is the question. Thereafter, the High Court has proceeded to observe
     that the learned trial Judge had not examined any witness; that all
     witnesses examined so far were examined by his predecessor in office;
E
     that the Presiding Officer himself had also not indicated his disinclination
     to hear the matter, and that apart, he had offered quite a stiff resistance
     to the plea of transfer as the same is revealed from his remarks forwarded
     to the Principal Sessions Judge. After so stating, the learned single
     Judge has held thus:-
F          " ... I am sure that the present Additional Sessions Judge would
           have acted in a true sense of a Judicial Officer. But nevertheless,
           to ensure that justice is not only done, but also seems to be done
           and in the peculiar facts of the case, I feel that it will be appropriate
           if the Principal Sessions Judge transfers the case to any other
G          Additional Sessions Judge in the same Sessions Division. I make
           it abundantly clear that the transfer shall not be construed as casting
           any aspersions on the learned Additional Sessions Judge."
             6. On a careful scrutiny of the order passed by the High Court, it
     is not clear whether the High Court has been convinced that the accused
H    has any real apprehension or bias against the trial judge. However, the
USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT                                     61
              [DIPAK MISRA, J.j

observations of the learned single Judge, as it seems to us, is                   A
fundamentally based on apprehension and to justify the same, he has
referred to the remarks offered by the leamedAdditional Sessions Judge
to the Sessions Judge when explanation was called for. First, we shall
refer to the issue of apprehension. The apprehension is based on some
kind of conversation between the informant and another that the accused
                                                                                  B
persons shall be convicted. There is also an assertion that the trial judge
is a convicting Judge and that is why, the High Court has observed that
he is in dilemma.
       7. So far as apprehension is concerned, it has to be one which
would establish that justice will not be done. In this context, we may
profitably refer to a passage from a three-Judge Bench decision in
                                                                                  c
Gurcharan Dass Chadha v. State of Rajasthan 1, wherein it has been
held:-
      " ... The law with regard to transfer of cases is well-settled. 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       D
      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 he entertains an apprehension and that it is
      reasonable in the circumstances alleged. It is one of the principles
      of the administration of justice that justice should not only be done       E
      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 further to see whether the
      apprehension is reasonable or not. To judge of the reasonableness
      of the apprehension the state of the mind of the person who
      entertains the apprehension is no doubt relevant but that is not all.       F
      The apprehension must not only be entertained but must appear
      to the Court to be a reasonable apprehension."
       8. This Court in Abdul Nazar Mada11i v. State of T.N. 2 has
ruled that:-
                                                                                  G
       " ... 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 possible impartially and objectively and without
 I AIR 1966 SC 1418
2 (2000) 6 sec 204                                                                H
62                SUPREME COURT REPORTS                           [2016] 1 S.C.R.



A          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 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
B
           produced at the trial is also a relevant consideration for deciding
           the transfer petition. The convenience of the parties does not
           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
c          of the prosecution, other accused, the witnesses and the larger
           interest of the society."
            9. In Captain Amarinder Singh v. Parkash Singh Badal and
     others 3 , while dealing with an application for transfer petition preferred
     under Section 406 CrPC, a three-Judge Bench has opined that for transfer
D    of a criminal case, there must be a reasonable apprehension on the part
     of the party to a case that justice will not be done. It has also been
     observed therein that mere an allegation that there is an apprehension
     that justice will not be done in a given case alone does not suffice. It is
     also required on the part of the Court to see whether the apprehension
     alleged is reasonable or not, for the apprehension must not only be
E    entertained but must appear to the Court to be a reasonable apprehension.
     In the said context, the Court has held thus:-
            ·:19. Assurance of a fair trial is the first imperative of the
            dispensation of justice. The purpose of the criminal trial is to
            dispense fair and impartial justice uninfluenced by extraneous
F           considerations. When it is shown that the public confidence in the
            fairness of a trial would be seriously undermined, the aggrieved
            party can seek the transfer of a case within the State under Section
            407 and anywhere in the country under Section 406 CrPC.
            20. However, the apprehension of not getting a fair and impartial
G           inquiry or trial is required to be reasonable and not imaginary.
            Free and fair trial is sine qua non of Article 21 of the Constitution.
            If the criminal trial is not free and fair and if it is biased, judicial
            fairness and the criminal justice system would be at stake, shaking
            the confidence of the public in the system. The apprehension must
H     3 c2009) 6 sec 260
USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT                                  63
              [DIPAK MISRA, J.]

       appear to the court to be a reasonable one."                            A
       10. In Lalu Prasad alias Lalu Prasad Yadav v. State of
Jharkhand 4 , the Court, repelling the submission that because some of
the distantly related members were in the midst of the Chief Minister,
opined that from the said fact it cannot be presumed that the Presiding
Judge would conclude against the appellant. From the said decision, we         B
think it appropriate to reproduce the following passage:-
       "Independence of judiciary is the basic feature of the Constitution.
       It demands that a Judge who presides over the trial, the Public
       Prosecutor who presents the case on behalf of the State and the
       lawyer vis-a-vis amicus curiae who represents the accused must          C
       work together in harmony in the public interest of justice
       uninfluenced by the personality of the accused or those managing
       the affairs of the State. They must ensure that their working does
       not lead to creation of conflict between justice and jurisprudence.
       A person whether he is a judicial officer or a Public Prosecutor or
       a lawyer defending the accused should always uphold the dignity         D
       of their high office with a full sense of responsibility and see that
       its value in no circumstance gets devalued. The public interest
       demands that the trial should be conducted in a fair manner and
       the administration of justice would be fair and independent."
       11. The aforesaid passage, as we perceive, clearly lays emphasis        E
on sustenance of majesty of Jaw by all concerned. Seeking transfer at
the drop of a hat is inconceivable. An order of transfer is not to be
passed as a matter of routine or merely because an interested party has
expressed some apprehension about proper conduct of the trial. The
power has to be exercised cautiously and in exceptional situations, where      F
it becomes necessary to do so to provide credibility to the trial. There
has to be a real apprehension that there would be miscarriage of justice.
(See : Nahar Singh Yadav and another v. Union of India and
others'].
       12. In the instant case, we are disposed to think that apprehension     G
that has been stated is absolutely mercurial and cannot remotely be stated
to be reasonable. The learned single Judge has taken an exception to
the remarks given by the learned trial judge and also opined about non-
examination of any witness by him. As far as the first aspect is concerned,
 4 (20I3J s sec 593
                                                                               H
 5 c2ol! l 1 sec 301
64                SUPREME COURT REPORTS                         [2016] 1 S.C.R.


A    no exception can be taken to it. The learned Sessions Judge, while hearing
     the application for transfer of the case, called for remarks of the learned
     trial judge, and in such a situation, he is required to give a reply and that
     he has done. He is not expected to accept the allegations made as
     regards his conduct and more so while nothing has been brought on
     record to substantiate the same. The High Court could not have deduced
B
     that he should have declined to conduct the trial. This kind of observation
     is absolute impermissible in law, for there is no acceptable reason on the
     part of the learned trial judge to show his disinclination. Solely because
     an accused has filed an application for transfer, he is not required to
     express his disinclination. He is required under law to do his duty. He
c    has to perform his duty and not to succumb to the pressure put by the
     accused by making callous allegations. He is not expected to show
     unnecessary sensitivity to such allegations and recuse himself from the
     case. If this can be the foundation to transfer a case, it will bring anarchy
     in the adjudicatory process. The unscrupulous litigants will indulge
     themselves in court hunting. If they are allowed such room, they do not
D
     have to face the trial before a court in which they do not feel comfortable.
     The High Court has gravely erred in this regard. So far as the non-
     examination of the witnesses is concerned, as the factual score would
     uncurtain, the matter had travelled to the High Court in revision assailing
     the order passed under Section 319 CrPC. Be that as it may, the High
E    Court has not adverted to the issue who was seeking adjournment and
     what was the role of the learned trial judge. Grant of adjournment could
     have been dealt with by the High Court in a different manner. It has to
     be borne in mind that a judge who discharges his duty is bound to commit
     errors. The same have to be rectified. The accused has never moved
     the superior court seeking its intervention for speedy trial. The High
F
     Court has innovated a new kind of approach to transfer the case. The
     High Court should have kept in view the principles stated in K.P. Tiwari
     v. State of M.P.' which are to the following effect:-
            ..... It has also to be remembered that the lower judicial officers
            mostly work under a charged atmosphere and are constantly under
G           a psychological pressure with all the contestants and their lawyers
            almost breathing down their necks-more correctly up to their
            nostrils. They do not have the benefit of a detached atmosphere
            of the higher courts to think coolly and decide patiently. Every
            error, however gross it may look, should not, therefore, be attributed
H    6 I 994 Supp. (I J sec 540
USMANGANI ADAMBHAI VAHORA v. STATE OF GUJARAT                                  65
              [DIPAK MISRA, J.]

       to improper motive."                                                    A
        13. Thus analysed, we are unable to sustain the order of transfer
passed by the High Court. Consequently, the appeals are allowed in
part. The finding recorded as regards the jurisdiction of the learned
Sessions Judge is sustained, and as far as the direction to the Principal
Sessions Judge to transfer the case from the 3'' Additional Sessions           B
Judge to some other court being vulnerable and wholly unsustainable is
set aside. The learned trial judge shall proceed with the trial and dispose
of the same within six months.
Nidhi Jain                                           Appeals partly allowed.
                                                                               c