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TMI Blog2020 (10) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can t also be overlooked that the Petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore, it is difficult to accept that justice for the Petitioner can only be ensured by transfer of three cases mentioned in these petitions. When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this Court finds it difficult to accept that the cases are on account of journalistic activities of the Petitioner. In fact the credibility of the journalistic activity of the Petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, the prosecution in the concerned three cases can t prima facie be said to be on account of malicious prosecution. These Transfer Petitions are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ional to transfer the trials only on the basis of unsubstantiated apprehension by the Accused. Rebutting the contention that the Petitioner's life is endangered within the State of Uttarakhand, Ms. Ruchira Gupta, the learned government counsel submits that these petitions are confined to only three cases whereas the Petitioner is Accused in several other cases pending in the State. Moreover, he has himself filed five PILs in the year 2020 itself in the High Court of Uttarakhand and this demonstrates that the Petitioner is conducting his affairs without any impediment. The government advocate then submits that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand. Ms. Gupta submits that some of the criminal cases against the Petitioner have been closed and the charges of extortion have been dropped. This according to the learned government counsel would clearly demonstrate the unbiased approach of the State Government and the incorrect and bald allegation made by the Petitioner. 4. Representing the Complainant (Ayush Gaur) in the FIR No. 100/2018, Mr. Arvind Kumar Shukla, learned Counsel points out that his cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent ruling dispensation in the State of Uttarakhand, was nowhere in picture. The contents of the allegations in the FIR No. 16/2007 (registered on 9.2.2007) relates to a property dispute involving the Will (dated 20.1.1995), of a family member of the Petitioner. 10. The next FIR No. 128/2018 (registered on 1.11.2018) relates to forcible land grabbing attempts, on the basis of purportedly fake of documents. 11. Perhaps only the FIR 100/2018 (dated 10.8.2018) is relatable to journalistic activity where the allegation of a core member of the investigative journalism team is that the Petitioner in the guise of sting operation (by video recording activities of powerful elements), does not air them and the concerned footages are utilized for extraneous purposes. 12. Let us now examine the arguments of the Petitioner's counsel about the Petitioner being targeted for malicious prosecution. To demonstrate this aspect the learned Senior Counsel refers to the proactive steps taken by the public prosecutor to arrest the Petitioner by repeatedly approaching the magistrate and then the High Court. Whether the public prosecutor followed the legal process or it was a case of overenthusia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of an Accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic Rule of law. 14. In Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167, for the three Judge Bench, Justice V.R. Krishna Iyer enunciated the law on transfer Under Section 406 Code of Criminal Procedure with the following observation: 2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the Petitioner's grounds on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenience 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 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. 16. In R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129, Justice M.B. Shah in another case for transfer Under Section 406 Code of Criminal Procedure, made the following pertinent observation: 9. ....... we would further state that in this country there is complete separation of the judiciary from the executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from the High Court of Kerala to the High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. On the same line is the decision in Harita Sunil Parab v. State (NCT of Delhi) and Ors. (2018) 6 SCC 358, where Justice Navin Sinha, enunciated the law on transfer jurisdiction in the following terms: 8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard-and-fast Rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the Petitioner alone who approaches the court on misconceived notions of appre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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