Radha Mohan Dwivedi and Others vs State of U.P. and Another

O.P. Garg, J.—These are ten applications u/s 407 of the Code of Criminal Procedure with the prayer that the Criminal Cases No. 25 of 1996 (R.C. No. 2 (s) of 1995). 34 of 1996 (RC. No. 3 (s) of 1995) and 35 of 1996 under Sections 120B/376/392/354/323/504, I.P.C. pending before Special Magistrate. C.B.I., Dehradun be transferred to some other district where the court of Special Magistrate, C.B.I is available as in Lucknow now holding court at Moradabad.

The facts leading to the present applications may briefly be stated as follows:

An agitation is going on for the creation of a separate Uttarakhand State. On 1.10.1994, the Uttarakhand agitators were going to Delhi from Dehradun to press their demand for a separate State. In the night of 1/2.10.1994, while the agitators were passing through Rampur Tiraha under Police Station, Chhapra, District Muzaffarnagar in buses, the police personnel of the district checked the buses carrying several hundreds agitators. In order to maintain law and order, the police officials from various Police Stations were called. Applicants in all the ten applications are the police officials. It was alleged that the agitators were manhandled by the applicants and other police officials; some of the lady agitators were raped, molested and subjected to indignities; they were wrongfully confined. A Division Bench of this Court directed the C.B.I. to investigate the matter into the alleged ugly incident and atrocities committed by the police officials. After investigation of the case, three charge-sheets were filed in the court of Special Magistrate, C.B.I. at Dehradun in consequence whereof, three case Nos. 25/96, 34/96 and 38/96 were registered. Learned Magistrate issued processes against the applicants who are accused in the aforesaid case to procure their attendance. Common grounds taken in the present ten transfer applications are that since on account of continued Uttarakhand agitation, the atmosphere at Dehradun which is at the footsteps of the hill region, is inordinately surcharged and, therefore, personal safety and security of the applicants is at stake; applicants are not getting legal assistance of the lawyers of their choice either from Dehradun or the neighbouring districts and that the atmosphere at Dehradun court is not congenial to hold trials--fairly and impartially.

Counter and rejoinder-affidavits have been exchanged. Learned Counsel for the applicants as well as learned special counsel for C.B.I. on behalf of the opposite parties have been heard at considerable length.

The main plank on which the case of the present applicants is founded is the order dated 3.5.1996 passed by Hon''ble C.A. Rahin, J., in other similar transfer applications whereby criminal case numbers 709/95, 711/95 u/s 120B/182/211/218, I.P.C., and Section 25 Arms Act, and Criminal Case No. 10 of 1996 u/s 109/120B/341/342, I.P.C. pending in the court of Special Magistrate, C.B.I., Dehradun were transferred to the file of Special Magistrate, C.B.I., Lucknow with the observation that he shall hold the trial at the District Court campus at Moradabad. It was pointed out that in the aforesaid decision, it was held that "since Dehradun is situated in the lap of Uttarakhand hills and has become one of the centres of Uttarakhand movement, it is very difficult to have a peaceful trial." It was further observed that the conduct of the Special Magistrate clearly indicates that he is suffering from fear psychosis. It may be that presence of the booth of Uttarakhand Sangarsh Samiti near at hand or it may be due to environment which is charged with anger and passion. In such circumstances if the applicants feel that they will not be able to get due and Impartial justice, they cannot be blamed. Learned Counsel for the applicants urged that the various observations made by Hon''ble C.A. Rahim, J., In the earlier transfer applications squarely apply to the case of the present applicants and, therefore, the transfer of three cases, named above, namely, Case Nos. 25/96, 34/96 and 35/96 would be eminently Justified.

Sri Girdhar Nath, Special counsel for C.B.I. repelled various submissions made by the learned Counsel for the applicants and urged that the cases, which have been transferred by earlier order passed by Hon''ble C.A. Rahim, J., are quite distinct and different from the cases, which are pending against the applicants in the court of Special Magistrate, C.B.I., Dehradun; that it cannot be said that the surcharged atmosphere at Dehradun still persists and that the non-availability of lawyers to the applicants of their choice by itself cannot be a ground for the transfer of ten cases, as prayed for. In support of his submission, learned Special counsel for the C.B.I. placed reliance on a case in Girishnarain Awasthy v. State, through V.N. Misra, Munsif, Etawah AIR (38) 151 All 355, in which it was observed that a transfer of the case would not be Justified on the ground that the case causes a sensation in the district or the place where the case is tried. A reference was also made to paragraphs 21, 22, 23 and 24 of a case State of Punjab v. Gurmit Singh and Ors. JT 1996 SC 298, in which it was observed that a victim of rape who has undergone a traumatic experience is made to repeat again and again in unfamiliar surroundings, to what she was subjected to, she may be too ashamed and even nervous or confused to speak. On the strength of the aforesaid case, learned Special counsel for the C.B.I. argued that the lady witnesses would not be in a position to frankly depose about the incident if the case is transferred to another district and that the witnesses are adamant not to go for recording their evidence at a place other than Dehradun as it would result in inconvenience and agony to them.

I have given thoughtful consideration to the matter and find that no one particular ground has to be considered in Isolation. All pervading circumstances have to be gauged. From the material brought on record and on the basis of common knowledge, it is clear that a serious agitation is going on in the hill area of the State to press the demand for the creation of Uttarakhand State. The agitators have resorted to all sorts of pressure tactics. The running trains had been brought to a halt and at some points of time, the trains could not depart from Deharadun. The entire administrative machinery was brought to a grinding halt and all Governmental activity become standstill. Certain examinations could not be held. The courts at Dehradun remained closed for a considerable long time and the various Bar Associations in the Uttarakhand region, including Dehradun have resolved not to defend the accused persons who are alleged to have subjected the Uttarakhand agitators to rampage, loot, rape, molestation, etc. A piquant situation is prevailing in Dehradun courts with regard to the cases in which the accused, who have committed various atrocities on the agitators, are involved. On account of staging of demonstrations by the agitators at the District Court at Dehradun, one finds it too difficult to proceed with the cases against the accused persons. Whenever the police officials accused of the various offences appear before the court, the atmosphere is surcharged with tensions and commotion. In such a situation, the Presiding Officer of the court cannot remain cool and is not in a position to act fairly and impartially resulting in serious prejudice to the accused persons. Learned Counsel for the applicants placed reliance on the observations made in Amrit Lal v. Emperor 1931 CriLJ 1188, wherein Lahore High Court took the view that where it was alleged on behalf of the accused that there existed an atmosphere prejudicial to the accused in the District and that on that account, he could not expect a fair and impartial trial and it appeared that those allegations were not unfounded, it was a proper case for transfer and that it was not necessary for the accused to show that the Magistrate was biased against him.

The following observations made by Hon''ble Supreme Court in Maneka Sanjay Gandhi and Another Vs. Rani Jethmalani, , are relevant for the purpose of present case:

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 hypersensivity 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. The grounds for the transfer have to be tested on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from the angle the court may weigh the circumstances.

In the aforesaid case, transfer application was rejected as various factors, mentioned above, it was held, had not been established. Hon''ble Supreme Court noted with concern that it is becoming frequent phenomena in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds jostling, jearing or cheering and disrupting the Judicial hearing with menaces, noises and worse. If this vice is peculiar to a particular place and is persistent, the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer.

In G.X. Francis and Others Vs. Banke Bihari Singh and Another, , Bose, J., observed as follows:

... But we do feel that good grounds for transfer from Jashpuranagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting and even if justice were done it would not be seem to be done''.

When there are circumstances existing to create a reasonable apprehension in the mind of the accused that he will not receive a fair and unprejudiced trial, a transfer should be directed, though there is really no bias in the mind of the court from which the transfer is sought and though the circumstances may be capable of explanation. Confidence in the administration of justice is an essential element of good Government and reasonable apprehension of failure of justice in the mind of the accused person should, therefore, be taken into serious consideration on an application for transfer.

The instant case must be approached in true perspective, without excitement, exaggeration or eclipse of a sense of proportion. As said above, no one ground should be segregated to receive condemnation. The commulative circumstance and the hostile atmosphere in which the cases are to proceed at Dehradun cannot be overlooked. The submission of the learned Special counsel for the C.B.I. that some of the accused persons have been able to appear before court, that the witnesses would find it difficult to go to a place outside Dehradun and, therefore, the normal court should not be divested of his jurisdiction to try the cases, are wide off the mark for one simple reason that these submissions ignore the broader aspect that it is not possible to have a fair and impartial trial at Dehradun where the atmosphere is not only surcharged with tension and commotion, but is positively hostile to the accused persons who are police officials. There is no possibility of the trials being conducted in calm and detached atmosphere and on account of local pressure and threatening attitude of the agitators, the concerned Magistrate, who is a human being, cannot act fairly and impartially as also independently and without any fear.

A faint suggestion came to be made on behalf of learned Special counsel for the C.B.I. that the direction of transfer of the cases from the court of Special Magistrate C.B.I., Dehradun may be in conflict with the observations made by Division Bench of this Court at whose instance the case were Investigated by C.I.D. The trial of the cases is to proceed according to procedure prescribed In the Code of Criminal Procedure. The power of transfer enshrined in Section 407 of the Code is an Integral and Inseparable part of the procedure for the criminal trials. It cannot be said that on account of decisions of the Division Bench of this Court in the writ petition, the various provisions contained in the Code of Criminal Procedure, including the one relating to the transfer of cases, shall stand throttled. In my view, the decision of the Division Bench does not come in the way of exercising power of transfer u/s 407 of the Code of Criminal Procedure in the instant case. The submission that the lady witnesses may not be willing to appear at a place other than Dehradun, as it would cause serious inconvenience to them, is also unfounded. All the lady witnesses are not stationed at Dehradun. They have, of necessity, to come from far flung hilly areas to appear in the court at Dehradun. If these witnesses can come to Dehradun, there is nothing to prevent them if they are taken to a place other than Dehradun where the cases may be transferred.

In the result, I find that in the back-drop of the facts and circumstances mentioned above, the transfer of the ten cases, mentioned above, is necessitated. All the ten applications, detailed above, are allowed and criminal case numbers 25/96, 34/96 and 35/96 under Sections 120B/376/392/ 354/323/504, I.P.C. pending in the court of Special Magistrate, C.B.I., Dehradun are withdrawn from that court and transferred to the file of Special Magistrate C.B.I., Lucknow who will hold the trial in the aforesaid cases sitting at Moradabad.