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TMI Blog2010 (11) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Jain, J. 1. The short question raised by the Central Bureau of Investigation (for short the CBI ), Anti Corruption Branch, Ghaziabad in their affidavit dated 15th July 2010, for our consideration is whether or not the trial arising out of the chargesheet filed by the CBI in Case RC-1(A)/2008/CBI/ACB/Ghaziabad and the local police, Ghaziabad in Case Crime No. 152/2008 PS Kavi Nagar, Ghaziabad deserves to be transferred from the Court of Special Judge, CBI at Ghaziabad to some other court of competent jurisdiction, preferably at Delhi under the jurisdiction of the High Court of Delhi, with a direction to the Trial Court to conduct the trial of the case on a day to day basis, and to complete it within a period of two years. 2. Since the case, commonly known as the Ghaziabad P.F. Scam , giving rise to the afore-stated prayer, involves violation of the standards of judicial behaviour, which is expected to be of the highest order, be it on or off the Bench, we feel concerned by the alleged events and have given our anxious consideration to the issue raised. In order to appreciate the controversy, a few material facts may be noticed. These are: Pursuant to and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime to time. Ultimately, the final report was filed by the CBI on 30th July 2010. According to the final report, the investigations had revealed that during the period 2001-2008, late Ashutosh Asthana while working as Bill Clerk and Central Nazir, District Court, Ghaziabad, by abusing his official position as public servant entered into a criminal conspiracy with 6 District Judges/Incharge District Judge and 71 others with the intent to cheat the District Courts, Ghaziabad/Government of U.P., fraudulently and dishonestly withdrew over ₹ 6 Crores from the District Treasury as GPF withdrawals, creating fake/forged documents for withdrawing money in the name of GPF of Class-IV employees using them as genuine, thereby causing a loss of over ₹ 6 Crores to the Government Exchequer and corresponding gains to themselves. According to the report, a chargesheet under Section 120B read with Sections 420, 467, 468 and 471 of the IPC and Section 13(2) read with Section 13(1)(d) of the Act against accused persons, as named in the chargesheet, has been filed in the Court of Special Judge, CBI, Ghaziabad on 3rd July 2010. 4. In the affidavit under consideration, filed by the CBI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled principle that justice should not just be done, but should also be seen as being done, and in view of the fact that some of the named accused happen to be ex-judges/administrative judges, there would be reasonable apprehension in the mind of the public at large that the trial judge, being their former colleague, may be biased in favour of the accused and, therefore, the peculiar circumstances of the case warrant that in the interests of justice the trial be shifted to a neutral venue. Learned Counsel further submitted that the paramount consideration which should weigh with the Court while considering an application for transfer is that public's faith in the judiciary should be maintained, and given the gravity of the allegations, in the present case, it would be expedient to transfer the trial to a Special Judge in Delhi. 9. Mr. Prashant Bhushan, learned Counsel appearing on behalf of the petitioners (in SLP (C) No. 12981 of 2008), contended that mere inconvenience of the accused cannot be the ground for rejecting the application for transfer, especially in a case like the present one, where there is a serious apprehension that the trial may not be free and fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trial. In order to appreciate the contention of the objectors-accused persons, in relation to the capacity of the CBI to move an application for transfer of the instant case, it would be expedient to refer to Section 6 of the DSPE Act, which reads as: 6. Consent of State Government to exercise of powers and jurisdiction. Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway area, without the consent of the Government of that State. 13. It is manifest that by operation of Section 6 of the DSPE Act, once a State Government issues notification transferring the investigation to the CBI, for all intents and purposes, the CBI is entitled to exercise the same powers as the State police, in relation to the investigation transferred to it. As a necessary corollary, in light of the current structure and status of the CBI, it is manifest that the CBI steps into and assumes the role of the prosecuting agency for that particular case. 14. Section 406(2) of the Code of Criminal Procedure provides that the Supreme Court may e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the public prosecutors as well. 18. In Zahira Habibulla H. Sheikh v. State of Gujarat and Ors. (2004) 4 SCC 158, while explaining the import of the expression fair trial , this Court had observed that: Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, the witnesses and the larger interest of the society. 21. In K. Anbazhagan v. Superintendent of Police and Ors. (2004) 3 SCC 767, this Court had an occasion to deal with the prayer for transfer of a criminal trial from Tamil Nadu to another State mainly on the ground of apprehension of political interference in the trial. While finally directing the transfer of the case to the State of Karnataka, the Court observed thus: Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be 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 petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. 22. Recently, in Captain Amarinder Singh v. Parkash Singh Badal and Ors. (2009) 6 SCC 260, while dealing with two transfer applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a number of cases, but that would not mean that he would have any personal interest or connection with the said matters or with persons involved therein and would be biased towards them. therefore, it would be difficult to presume or to draw an inference that the learned Judge, because of assisting the Commission of Inquiry as an advocate in a different matter, would have bias or prejudice against the petitioner and would not render justice in accordance with law. Acceptance of such contention would seriously undermine the independence and stern stuff of the Judges. 24. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Code of Criminal Procedure should be exercised, it is manifest from a bare reading of Sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not disposed to believe that either the witnesses or the Special Judge will get influenced in favour of the accused merely because some of them happen to be their former colleagues. As already stated, acceptance of such allegation, without something more substantial, seriously undermines the credibility and the independence of the entire judiciary of a State. Accordingly, we outrightly reject this ground urged in support of the prayer for transfer of trial from Ghaziabad. 26. As regards the plea that the Court of Special Judge, CBI, Ghaziabad is already heavily over-burdened, in our opinion, that is again not a ground for transfer of trial. If at all the said Court is over burdened, it will be open to the High Court to request the State Government to create another Court of a Special Judge at Ghaziabad and we are confident that having regard to the nature of the case and the serious concern already shown by the State Government by issuing Notification dated 10th September 2008 promptly and expeditiously, the State Government will take appropriate steps in that behalf so that the guilty are brought to book at the earliest not only in this case but in other sensitive trials, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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