er Petition No 7 of 1965Under Section 527 of Criminal Procedure Code
T R Bhasin for the petitioner
G C Kasliwal Advocate General for the State of Rajasthan K K Jain and R N Sachthey for the Respondent
The Judgment of the Court was delivered by Hidayatullah J
This is a petition under section 527 of the Code of Criminal Procedure for the transfer of a criminal case No 2 of 1964 state vs Gurcharan Dass Chadha IPS which is pending in the Court of the Special Judge Bharatpur Rajasthan to another criminal court of equal or superior jurisdiction subordinate to a High Court other than the High Court of Rajasthan
The petitioner is the accused in that case and he is being tried under sections 120B161 Indian Penal Code and section 51ad and 52 of the Prevention of Corruption Act
prosecution has been sanctioned by the Government of India
In December 1962 he was serving as Superintendent of Police and was selected to be Commandant of 8th Batallion of Rajasthan Armed Constabulary
He avers that he took over as Commandant on January 7 1963 but was placed under suspension the same day and a case was registered on January 12 1963 which has resulted in the present prosecution against him
The petitioner apprehends for reasons to be stated presently that he is not likely to get a fair just and impartial trial in the State of Rajasthan owing to the hostility and influence of the then Law Minister who was also Minister incharge of Home Department of the State the Additional Inspector General of Police Anti Corruption and the Deputy Inspector General of Police Ajmer Range Jaipur
In support of his petition he has referred to many incidents and filed many documents
He has sworn an affidavit that he entertains an apprehension that these persons would interfere with the trial of the case in the State of Rajasthan and that a transfer of the case outside the State is in the interest of justice
680 The State Government has opposed the application strenu
ously and has questioned the jurisdiction of this Court to transfer under the powers conferred on it by section 527 Code of Criminal Procedure a case made over by the Government of the State of Rajasthan for trial to a Special Judge under the Criminal Law Amendment Act 1952 Act 46 of 1962
In addition the State Government joins issue on the facts alleged and the merits of the claim for the transfer of the case
While this petition was pending the State Government served the petitioner with a notice and a charge sheet to show cause why he should not be proceeded against for breach of Rule No 8 of the All India Services Conduct Rules 1954 because he had communicated directlyindirectly official documents and information to Government servantsother persons to whom he was not authorised to communicate such documentsinformation as indicated and detailed in a statement of allegations accompanying the notice and the charge
The State Government has appended to this charge two appendices giving details of 31 and 16 docu ments respectively which were said to have been so communicated by the petitioner to his counsel Messrs R K Rastogi and D P Gupta Advocates of Jodhpur and others named as non petitioners in a writ petition which he had filed in the High Court of Rajasthan No 794 of 1964 and which he subsequently withdrew on December 23 1964 before taking action to file the present petition
The notice the charge and the statement of allegations accompanying them were signed by Mr Vishnu Dutt Sharma Special Secretary to Government
On receiving this charge the petitioner moved another petition in this Court for taking action against Mr Shrama and the Government of Rajasthan for contempt of this Court
At an earlier hearing where we were considering the petition for transfer the other petition was brought to our notice and we were about to order issuance of notices to the contemners but the Advocate General of the Government of Rajasthan took notice of the petition and offered to take action in respect thereof
As a result the State of Rajasthan through the Chief Secretary to the Government and Mr Sharma separately filed their replies to the second petition and attempted justification
Mr Sharma abjured knowledge of the contents of the petition for transfer and denied any malice ill will or grudge pleading good faith
The matter would have received serious attention from us but for the fact that at the next hearing the plea for justification was abandoned and an unconditional apology was entered on behalf of the State Government as well as Mr Sharma
The latter was present in Court and expressed regret for what had
happened
681 We accepted the appology and do not thereforefeel called upon to consider the plea of justification which in any event is not a plea heard in bar when contempt is clear and manifest
There could be no question in the present case that by charging the petitioner with proceedings of a different kind there was if not direct at least indirect pressure brought upon him in the prosecution of his petition for
transfer
Of this we would have taken serious note be cause it was likely to have hampered the petitioner in prosecuting his petition freely before this Court and would have resulted in obstruction of administration of justice
If the petitioner was guilty of any lapse under the Services Conduct Rules or even guilty of an offence the action to which he would be otherwise subject could wait till the present proceedings had terminated and there was really no reason to hurry with a charge against the petitioner which charge would have put him under duress of some kind
Such a course of action is to be deprecated and we are glad to note that the Government of Rajasthan and the Secretary concerned have seen the matter in this light and have made amends by proper contrition
We do not feel called upon to say more than this on the petition for contempt which shall be filed
We shall now take up the objection that this Court lacks jurisdiction to transfer the case pending before the special Judge Bharatpur
This objection goes to the root of the matter
Questions of inherent jurisdiction must always be decided before the merits are considered because to dismiss the petition after consideration of merits itself involves an assumption of jurisdiction
We must accordingly consider the objection even though we are satisfied that the petition must fail on merits
The power which the petitioner is invoking flows from section 527 of the Code of Criminal Procedure
The first two sub sections of that section are material here and they read 527
Power of Supreme Court to transfer cases and appeals 1 Whenever it is made to appear to the Supreme  Court that an order under this section is expedient for the ends of justice it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court
2 The Supreme Court may act under this section only on the application of the Attorney General of India 682 or of a party interested and every such application shall be made by motion which shall except when the applicant is the Attorney General of India or the Advocate General be supported by affidavit or affirmation
It is conceded by the Advocate General that the power to transfer criminal cases as laid down in the section is ordinarily available but he contends that a case assigned by the State Government under the Criminal Law Amendment Act 1952 to a special Judge cannot be transferred at all because under the terms of that Act which is a self contained special law such a case must be tried by the special Judge designate only
The argument is extremely plausible but does not bear close scrutiny
To understand the argument and how it is refuted certain provisions of the Act may be seen
The first section of the Act gives the short title of the Act
Sections 2 and 3 of the Act introduce changes in the Indian Penal Code by increasing the punishment in section 165 and by inserting section 165A which provides for punishment for abetment of offences defined in sections 161 and 165
Sections 4 and 5 of the Act make some amendments in section 164 of the Indian Penal Code and section 337 of the Code of Criminal Procedure
These four sections have been repealed by the Repealing and Amending Act 1957 as they were no longer necessary
The sections which we have to consider are sections 6 7 and 8 of the Act
Section 6 confers power on the State Government to appoint special Judges for the trial of certain offences
The parts relevant to our purpose read 6
Power to appoint special judges
1 The State Government may by notification in the official Gazette appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences namely  a an offence punishable under section 161 section 162 section 163 section 164 section 165 or section 165 A of the Indian Penal Code Act XLV of 1860 or sub section 2 of section 5 of the Prevention of Corruption Act 1947 11 of 1947 b Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause a
683 Section 7 next provides what cases shall be tried by special Judges
The first two sub sections read  7
Cases triable by special Judges
1 Notwithstanding anything contained in the Code of Criminal Procedure 1898 Act V of 1898 or in any other law the offences specified in sub section 1 of section 6 shall be triable by special Judges only
2 Every offence specified in sub section 1 of section 6 shall be tried by the special Judge for the area within which it was committed or where there are more special Judges than one for such area by such one of them as may be specified in this behalf by the State Government The procedure which the special Judge has to follow is laid down in section 8 1 and by sub section 2 of the same section certain powers are confered on the special Judge
Sub section 3 then provides 8
Procedure and Powers of Special Judges
1      2      3 Save as provided in sub section 1 or sub section 2 the provisions of the Code of Criminal Procedure 1898 shall so far as they are not inconsistent with this Act apply to the proceedings before a special Judge and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor  
There is no need to refer to other provisions of the Act which do not bear upon this matter
The Advocate General Rajasthan in opposing the petition relies principally on the provisions of section 71 and 2 and contends that the two sub sections create two restrictions which must be read together
The first is that offences specified in section 61 can be tried by special Judges only
The second is that every such offence shall be tried by the special Judge for the area within which it is committed and if there are more special Judges in that area by the 684 special Judge chosen by Government
These two conditions being Statutory it is submitted no order can be made under section 527 be because on transfer even if a special Judge is entrusted with the case the second condition is bound to be broken
No doubt sub section 1 of section 7 lays down that the trial of an offence specified in sub section 1 of section 6 must be by a special Judge only but that condition can be fully met by transferring the case to another special Judge
Indeed section 527 itself contemplates that the transfer should be to a court of equal or superior jurisdiction and we presume that there are special Judges in every State of India
The selection of a special Judge causes no difficulty
It is the second condition which is really pleaded in bar
The provision of sub section 2 of section 7 is that an offence shall be tried by the special Judge for the area within which it is committed
This condition if literaly understood would lead to the conclusion that a case once made over to a special Judge in an area where there is no other special Judge cannot be transferred at all
This could hardly have been intended
If this were so the power to transfer a case intrastate under section 526 of the Code of Criminal Procedure on a parity of reasoning must also be lacking
But this Court in Ramchandra Prasad vs State of Bihar1 upheld the transfer of a case by the High Court which took it to a special Judge who had no jurisdiction in the area where the offence was committed
In holding that the transfer was valid this Court relied upon the third sub section of section 8 of the Act
That sub section preserves the application of any provision of the Code of Criminal Procedure if it is not inconsistent with the Act save as provided in the first two sub sections of that section
The question therefore resolves itself to this  is there an inconsistency between section 527 of the Code and the second sub section of section 7  The answer is that there is none Apparently this Court in the earlier case found no inconsistency and the reasons appear to be these  The condition that an offence specified in section 62 shall be tried by a special Judge for the area within which it is committed merely specifies which of several special Judges appointed in the State by the State Government shall try it
The provision is analogous to others under which the juris diction of Magistrates and Sessions Judges is determined on a territorial basis
Enactments in the Code of Criminal Procedure intended to confer territorial jurisdiction upon courts and Presiding Officers have never been held to stand in the way of transfer of criminal cases outside those areas of territorial jurisdiction
The 1  685 order of transfer when it is made under the powers given by the Code invests another officer with jurisdiction although ordinarily he would lack territorial jurisdiction to try the case
The order of this Court therefore which transfer a case from one special Judge subordinate to one High Court to another special Judge subordinate to another High Court creates jurisdiction in the latter in much the same way as the transfer by the High Court from one Sessions Judge in a Session Division to another Sessions Judge in another Session Division
There is no comparison between the first sub section and the second sub section of section 7
The condition in the second sub section of section 7 is not of the same character as the condition in the first sub section
The first sub section creates a condition which is a sine qua non for the trial of certain offences
That condition is that the trial must be before a special Judge and laye emphasis on the fact that trial must be before a special Judge appointed for is on a par with the distribution of work territorially between different Sessions Judges and Magistrates
An order of transfer by the very nature of things must some times result in taking the case out of the territory and the provisions of the Code which are preserved by the third sub section of section 8 must supervene to enable this to E be done and the second sub section of s 7 must yield
We do not consider that this creates any inconsistency because the territorial jurisdiction created by the second sub section of section 7 operates in a different sphere and under different circumstances
Inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions
Such a situation does not arise F when either this Court or the High Court exercises its powers of transfer
We are accordingly of the opinion that the Supreme Court in exercise of its jurisdiction and power under section 527 of the Code of Criminal Procedure can transfer a case from a special Judge subordinate to one High Court to another special Judge subordinate to another High Court
This brings us to the question of the merits of the petition
The petitioner is being prosecuted for offences under section 120B161 of the Indian Penal Code and section 51ad and 52 of the Prevention of Corruption Act
His apprehension is that the case against him is H the result of the machination of two Police Officers and one Mr Mathura Dass Mathur who was the Home Minister in 1962He also alleges hostility on the part of the State Government
He has given instances which in his opinion prove that the above two 686 officers the Home Minister and the State Government are hostile to him
In relation to the State Government he has alleged that when he was appointed Commandant of the 8th Battallion of Rajasthan Armed Constabulary the State Government down graded his post otherwise he would have received a higher starting pay
He also alleges that his suspension and prosecution were made to coincide With his assumption of new duties so that he might not be able to join his new post
With regard to the Home Minister the petitioner has given five instances in which he apparently crossed the minister s path and gave him room for annoyance
In regard to the two Police Officers he has averred that the Deputy Inspector General of Police Ajmer Range Hanuman Prasad Sharma and he had some differences on three occasions
He has also given similar instances of hostility towards him entertained by Sultan Singh Deputy Inspector General of Police
On the basis of these he says that he entertains an apprehension that he will not receive justice in the State of Rajasthan
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 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 but it should be seen to be done
However a mere allegation that there is appre hension that justice will not be done in a given case does not office
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
The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension
Applying these principles it may be said that there is a possibility that the petitioner entertains an apprehension that certain persons are hostile to him but his apprehension that he will not receive justice in the State of Rajasthan is not in our opinion reasonable
All the facts which he has narrated bear upon past events in his official life
Nothing has been said which will show that there is in any manner an interference direct or indirect with the investigation of the offences alleged against him or the trial of the case before the special Judge Bharatpur
A general feeling that some persons are hostile to the petitioner is not sufficient
There must be material 687 from which it can be inferred that the persons who are so hostile are interfering or are likely to interfere either directly or indirectly with the course of justice
Of this there is no trace either in his petition or in the arguments which were advanced before us
Nor does the petitioner allege anything against the special Judge who is trying the case
In this view of the matter we decline to order trans fer of the case from the special Judge Bharatpur
The petition accordingly fails and will be dismissed
Petition dismissed


Summary:
The petitioner was a member of an All India Service serving in the State of Rajasthan
The State Government ordered his trail before the Special Judge of Bharatpur under section 120B161 of the Indian Penal Code and section 51 a d and section 52 of the Prevention of Corruption Act
He moved the Supreme Court under section 527 of the Code of Criminal Procedure praying for the transfer of his case to another State on various grounds
On behalf of the State it was contended that the Supreme Court could not exercise its powers under section 527 of the Code of Criminal Procedure in the matter because section 71 of the Prevention of Corruption Act required the offences in question to be tried by a special judge only and section 72 of the Act required the offence to be tried by a Special Judge for the area within which they were committed which condition could never be satisfied if there was a transfer
HELD  i The condition in sub section 1 of section 7 of the Prevention of Corruption Act that the case must be tried by special judge is a sine qua non for the trial of offences in Section 6
This condition can be satisfied by transferring the case from one special judge to another special Judge
684 B Sub section 2 of section 7 merely distributes work between special judges appointed in a State with reference to territory
This Provision is on a par with the section of the Code of Criminal Procedure which confer territorial jurisdiction on Sessions Judges and Magistrates
An order of transfer by the very nature of things must sometimes result in taking the case out of the territory
685 D ii The third sub section of section 8 of the Act preserves the application of any provision of the Code of Criminal Procedure if it is not inconsistent with the Act save as provided in the first two sub sections of that section
Section 527 of the Code therefore remains applicable if it is not inconsistent with section 72 of the Act
There is no inconsistency between section 527 of the Code and section 72 of the Act because the territorial jurisdiction created by the latter operates in a different Sphere and under different circumstances
Inconsistency can only be found if two pro visions of law apply in identical circumstances and create contradictions
Such a situation does not arise when either this Court or the High Court exercises the power of transfer
Therefore this Court in exercise of its jurisdiction and power under section 527 of the Code can transfer a case from a special judge subordinate to one High Court to another special judge subordinate to another High Court 685 E Ramchandra Prasad vs State of Bihar AIR 1961 SC 129 referred to 679 iii On merits however the petition in the present case could not succeed
There was nothing in it which would show that there was any interference direct or indirect with the investigation of the offences alleged against the petitioner or the trial of the case by the special judge
A general feeling that some persons are hostile to the petitioner is not sufficient
The Court has further to see whether the apprehension is reasonable
686 H