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TMI Blog2012 (3) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of by a common order, because the prayers made are identical and are based on the same grounds, arising out of the same factual background. 2. Before dealing with the grounds raised by the Petitioners, it is necessary to briefly record the sequence of events leading to the filing of the instant transfer petitions. The prosecution under reference pertains to the murder of Aarushi Talwar, daughter of the two Petitioners, namely, Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening 15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first information report registered at police station, Sector 20, Noida, alleging that their domestic help Hemraj had committed the murder of their daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the body of Hemraj was also found on the roof of the Petitioners' residence. Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On 27.5.2008, the Chief Judicial Magistrate, granted police custody of Dr. Rajesh Talwar till 30.5.2008. Even though the matter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of 2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated 9.1.2012 is being extracted hereinbelow: We have heard Learned Counsel for the parties. It appears that pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68 of 2012 titled Dr. Mrs. Nupur Talwar v. C.B.I. Delhi and Anr. , whereby this Hon'ble Court upheld the order dated 9.2.2011 of the Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01 of 2011 whereby cognizance was taken, the Petitioner herein would appear before the Special Judicial Magistrate (CBI), Ghaziabad on 4.2.2012 which, we understand, is the date fixed for hearing. It is also not in dispute that the Petitioner Dr. Rajesh Talwar is on bail since 2008 virtually by an order dated 11th July, 2008 and he also furnished bail bond pursuant to that order. In that view of the matter, we direct the Petitioner - Dr. Rajesh Talwar to remain on bail. It is understood that the Petitioner has already deposited his passport and the same is lying with the Court of the learned Magistrate. In the meantime, the Petitioner shall not leave the local P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, that a large number of witnesses would also have to be summoned from outside U.P. It was also pointed out, that these witnesses would have to unnecessarily travel to Ghaziabad. Just like the Petitioners, all outside witnesses would likewise face avoidable inconvenience, if the prayer made in the instant petition is accepted. 6. On the issue of personal security, Learned Counsel for the Petitioners contended, that when the Petitioners had gone to attend court proceedings at Ghaziabad on 25.1.2011, and whilst they were physically inside the court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious attack at the hands of one Utsav Sharma, with a cleaver knife. It was submitted, that Dr. Rajesh Talwar suffered grievous injuries and was rushed to undergo several reconstructive surgeries in the intensive care unit of the Indraprastha Apollo Hospital, New Delhi. While explaining the assault, it was pointed out, that Dr. Rajesh Talwar was given three blows with the meat cleaver causing a grievous injury on the right side of his forehead, which also resulted in the rupture of a major artery, and also, serious injuries on both of his hands. It was also alleged, that Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted, that in a case wherein the CBI itself felt that there was a real danger of the accused being physically attacked during the course of the trial, this Court came to be approached (by the CBI) for transfer of the venue of prosecution. The prayer made by the CBI was acceded to by this Court by observing, that there could be no quarrel, that there was a real possibility of a physical attack on the Respondent-accused so long as he was at Manipur. Yet again, it is emphasized by the Learned Counsel appearing on behalf of the Petitioners, that the present case stands on a far better footing, inasmuch as, a factual assault resulting in serious injuries has actually been suffered by Dr. Rajesh Talwar within the court premises at Ghaziabad. It is, therefore, contended, that the fear in the minds of the Petitioners, is not imaginary. The fear in the minds of the Petitioners, is very real and bonafide. In order to support the prayer of the Petitioners on the facts delineated hereinabove, Learned Counsel for the Petitioners placed reliance on the judgment rendered by this Court in Ravir Godbole v. State of M.P. (2006) 9 SCC 786. The order relied upon by the Petitioners is being e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (as per the pleadings), emerges from an application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of the Code of Criminal Procedure. In the aforesaid application, Dr. Rajesh Talwar had sought exemption from personal appearance, on the ground that he had suffered a physical assault in the court premises on 25.1.2011, and had been advised bed rest. The Special Judicial Magistrate (CBI) Ghaziabad, had rejected the application for exemption, and issued bailable warrants against Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is concerned, she too had sought exemption from personal appearance on the ground, that she had to file an affidavit at Allahabad in a criminal revision petition, to assail the summoning order dated 9.2.2011(refer to paragraph 4 above). It is submitted, that the application filed by Dr. Mrs. Nupur Talwar was also declined. In the order dated 28.2.2011 the Special Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants against the Petitioners. From the aforesaid determination, it was sought to be inferred, that the Petitioners were not likely to get justice, as the Ghaziabad Court was proceeding with the matter with a pre-determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h such a perilous situation the counsels did not have any option but to file an application before the Ld. Magistrate for taking appropriate actions and passing necessary directions in the matter. The said application is still pending. A photocopy of certified copy of the said application dated 4.2.2012 is annexed herewith and marked as Annexure A-3. It is also necessary to extract hereunder the application dated 4.2.2012 (appended as Annexure A-3 to the affidavit dated 24.2.2012) of Shri Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar: Sir, It is most respectfully submitted that in the above noted case the applicants counsels appear before the Hon'ble Court today to move application in the light of order passed by Hon'ble Supreme Court in Transfer Petition. The counsel for applicants were restrained by some other Advocates who have no concern with the case during the course of their submission. This happened even when, the order passed by Hon'ble Court dated 25.1.2011 Under Section 327 Code of Criminal Procedure. is still in force. It is, therefore, most humbly prayed that in the above said reason and in the interest of justice Hon'ble Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one companies, 20 witnesses have been examined earlier out of which some are relations of the Petitioners themselves; and of the remaining two witnesses one is from Punjab and the other is from Haryana. It is also submitted, that none of the 61 witnesses, to be produced from Delhi or from outside U.P., have expressed inconvenience to depose before the Special Judicial Magistrate (CBI), Ghaziabad, U.P. It is contended, that the distance between Noida and Ghaziabad, as also, between Noida and Delhi depicted in the submissions advanced by the Learned Counsel for the Petitioners are irrelevant. It is submitted, that the issue of jurisdiction is never determined on the basis of distance(s), but is based on the territorial jurisdiction of the court within which an offence has been committed. It is submitted that Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending court proceedings at Ghaziabad since 2008, i.e., for the last about three years. It is pointed out, that neither of the Petitioners ever expressed inconvenience to participate in the court proceedings at Ghaziabad hitherto before. However, all these pleas are being raised only after the Special Judicial Magistrate (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to the Petitioners, has been shifted to a new building, which has a proper boundary wall on all sides, with only one small entrance. The counter affidavit also records an assurance, that as and when the case of the Petitioners will be fixed for hearing, proper police force will be deployed by the local administration, to ensure safety and security of the Petitioners. It is therefore the contention of the learned Senior Counsel representing the CBI, duly supported by the Learned Counsel for the State of Uttar Pradesh, that all possible care will be taken, for the safety and welfare of the Petitioners. 12. Even though Learned Counsel representing the Petitioners did not canvass the third ground (see paragraph 7 hereinabove) during the course of hearing, yet Learned Counsel for the Respondents had expressly drawn our attention to the same. The purpose of inviting our attention to the third ground was to demonstrate, that the Petitioners have not even spared the presiding officer of the court. The Petitioners have cast aspersions on the court itself. It has been averred in the pleadings, that the Petitioners are not likely to get justice from the Ghaziabad court, because the Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, from making his submissions has also not been disclosed. Accordingly, it is asserted that the allegations made in the last submission being vague cannot be relied upon to accept the prayer of the Petitioners for transfer of proceedings under Section 406 of the Code of Criminal Procedure. 14. We have noticed hereinabove the grounds of challenge canvassed at the hands of the learned Counsel for the Petitioners, as also, the response thereto at the hands of the Learned Counsel representing the Respondents. In so far as the issue of transfer of criminal proceedings from one court to another under Section 406 of the Code of Criminal Procedure is concerned, it would be in the fitness of matters to examine the parameters laid down by this Court for transfer of proceedings. In this behalf reference may, first of all, be made to the decision rendered in Sri Jayendra Saraswathy Swamigal (II) Tamil Nadu v. State of Tamil Nadu (2005) 8 SCC 771, wherein in paragraph 5, this Court recorded the grounds on which transfer was sought and thereafter, recorded its own determination in paragraph 23. Accordingly, paragraphs 5 and 23 of the judgment are being extracted hereunder: 5. The transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused. (vi) The Mutt and other associated and connected trusts have 183 accounts in banks, which were all frozen by SIT resulting in paralysing the religious and other activities of the Mutt and other connected bodies. (vii) Criminal cases have been lodged against some leading journalists of the country and other prominent personalities, who had written articles criticising the arrest of the Petitioner, which not only violates right of free speech but also creates an atmosphere of threat against anyone daring to speak or write in favour of the accused and thus the accused seriously apprehend that they would not get a fair trial in the State of Tamil Nadu. (viii) Shri Prem Kumar, who is heading the Special Investigation Team, is not a fair and upright officer and superior courts have passed strictures against him several times in the past for his uncalled-for actions in going out of the way to implicate innocent persons in criminal cases. 23. We have discussed above many facets of the case which do show that the State machinery in Tamil Nadu is not only taking an undue interest but is going to any extent in securing the conviction of the accused by any means and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lawyers engaged by the Petitioner and other co-accused cannot perform their professional duty in a proper and dignified manner on account of various hurdles created by the State machinery. The lawyers would be more concerned with shielding their own reputation or their liberty rather than cross- examining the prosecution witnesses for eliciting the truth. The constant fear of not causing any annoyance to the prosecution witnesses specially those of the Police Department would loom large over their mind vitally affecting the defence of the accused. Passing of the detention order against 16 co-accused soon after grant of bail to the Petitioner by this Court on 10-1-2005, which order could be of some support in seeking parity or otherwise for securing bail in the present murder case, is a clear pointer to the fact that the State wanted to deprive them of any chance to secure release from custody. Even though this Court has issued notice on the special leave petition filed by the State against the order of the High Court by which habeas corpus petition of the 16 co-accused was allowed, yet the observations made in the said order show in unmistakable terms that the even tempo of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould affect the trial proceedings themselves. 19. We must especially take note of the fact that the killings took place in a region where opinions are sharply divided on the justness of the causes espoused by NSCN(IM) and that the Respondent-accused is a member of the same organisation. This creates a risk of intimidation of the witnesses as well as undue prejudice seeping into the minds of those who may be involved in the legal proceedings in different capacities. 20. In this scenario, in our considered view it would be expedient in the ends of justice to conduct the trial in Delhi. We accordingly direct that the impugned cases be transferred from the Court of the Chief Judicial Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a judicial officer of the rank of a Sessions Judge) in New Delhi. (Emphasis is ours) The scope of jurisdiction under Section 406 of the Code of Criminal Procedure was also considered by this Court in Surendra Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475, wherein this Court held as under: 14. Mr Gupta submitted that except for wild allegations made against the investigating authorities and the officials of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e main issue, a true and fair trial is sine qua non of Article 21 of the Constitution, which declares that: 21. Protection of life and personal liberty.-No person shall be deprived of his 'life' or 'personal liberty' except according to procedure established by law. It needs no Emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 Code of Criminal Procedure empowers this Court to transfer any case or appeal from one High Court to another High Court or from one criminal court subord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice. 30. Having considered the rival claims of both the parties on the touchstone of the aforestated broad parameters, we are of the view that the apprehension entertained by CBI that the trial of the case at Ghaziabad may not be fair, resulting in miscarriage of justice, is misplaced and cannot be accepted. From the material on record, we are unable to draw any inference of a reasonable apprehension of bias nor do we think that an apprehension based on a bald allegation that since the trial Judge and some of the named accused had been close associates at some point of time and that some of the witnesses are judicial officers, the trial at Ghaziabad would be biased and not fair, undermining the confidence of the public in the system. While it is true that Judges are human beings, not automatons, but it is imperative for a judicial officer, in whatever capacity he may be functioning, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the accused only because the witnesses are threatened is made out by the Petitioner. 24. This Court, on various occasions, had opportunity to discuss the importance of fair trial in criminal justice system and various circumstances in which a trial can be transferred to dispense fair and impartial justice. It would be advantageous to notice a few decisions of this Court with regard to the scope of Section 406 of the Code of Criminal Procedure. XXX 29. From the averments made in the petition it is evident that the accused belong to a powerful gang operating in U.P. from which the State of Uttarakhand is carved out. The Petitioner has been able to show the circumstances from which it can be reasonably inferred that it has become difficult for the witnesses to safely depose truth because of fear of being haunted by those against whom they have to depose. The reluctance of the witnesses to go to the court at Haridwar in spite of receipt of repeated summons is bound to hamper the course of justice. If such a situation is permitted to continue, it will pave way for anarchy, oppression, etc., resulting in breakdown of criminal justice system. In order to see that the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be designated outside the State of Gujarat. 42. 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 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 Petitioners is 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. (Emphasis is ours) It is in light of the parameters recorded by this Court that we shall endeavour to deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired assets disproportionate to his known sources of income to the extent of ₹ 1,39,39,025. 13. The Petitioners have been charge-sheeted for commission of offences under Section 109 read with Section 193 Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for having actively aided and abetted Respondents 3 to 4 by fabricating false evidence through preparation of false agreements to sell with the object to justify/explain the huge cash recoveries from the residential premises of Respondent 3. It further reveals that the Petitioners entered into false transactions with Respondent 3 showing receipt of cash amounts against alleged purchase of immovable properties from him. The stamp papers were purchased against (sic after) registration of case and false agreements to sell were prepared in connivance with each other. 14. A perusal of the charge-sheet containing all these details clearly shows that witnesses to be examined are not only from Jaipur, Rajasthan, but also from various other places including Mumbai. Though the Petitioners may have a little inconvenience, the mere inconvenience may not be sufficient gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners themselves, the distance between Noida and Ghaziabad is 35 kms. whereas the distance between Noida and Delhi is 17 kms. Based on a simple mathematical conclusion the distance between Delhi and Ghaziabad must be approximately 52 kms. (35+17=52). It is ununderstandable how a plea of inconvenience can be based to avoid travelling a distance of merely 52 kms. Even if it is assumed that a couple of hours would be consumed for travelling to and fro (from Delhi to Ghaziabad and back) the inconvenience would not be such as can be the basis for seeking transfer. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of Code of Criminal Procedure. Often either the complainant or the accused have to travel across an entire State to attend to criminal proceedings, before a jurisdictional court. In some cases to reach the venue of the trial court, a complainant or an accused may have to travel across several States. Likewise, witnesses too may also have to travel long distances, in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another, on the basis of time taken to travel to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hifted to a new building which has proper boundary walls on all sides, with only one small entrance. The building where the Petitioners are required to attend the court proceedings is therefore totally safe. In the counter affidavit filed by the CBI it has been expressed, that whenever the case of the Petitioners' is to be heard, adequate police force would be deployed by the local administration. The aforesaid undertaking (expressed in the counter affidavit, filed on behalf of the CBI has been endorsed by the Learned Counsel representing the State of Uttar Pradesh. Even though it has been pointed out that the Petitioners have not moved any application either to the Special Judicial Magistrate (CBI), Ghaziabad, U.P. or to the police for seeking protection; we are assured, if such a request is made at the hands of the Petitioners, the same will be duly considered in accordance with law. We have extracted a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar Rai, Advocate in paragraph 8 hereinabove. While perusing the aforesaid affidavit we noticed reference therein to an order dated 25.1.2011 passed in respect of the proceedings pending before the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners are based on an order passed by the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011. Learned Counsel for the Petitioners advisedly refrained from pressing the instant ground during the course of hearing. Even raising such a ground in the pleadings, to state the least, can certainly be termed as most irresponsible. The impertinence of the Petitioners in the instant case, is magnified manifold because the order dated 28.2.2011 was assailed by the Petitioners before the High Court of Judicature at Allahabad, but the challenge failed. In this view of the matter, the insinuations can also be stated to have been aimed even at the High Court. Although we could have initiated action against the Petitioners, yet in the peculiar facts and circumstances of this case, we refrain ourselves from doing so. However, we consider it just and appropriate to warn the Petitioners from any such impertinence in future. 18. In so far as the last contention advanced at the hands of the Learned Counsel for the Petitioners is concerned, the same was based on the affidavit of Shri Praveen Kumar Rai, Advocate dated 24.2.2012, as also, an application filed by the said counsel on 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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