Transfer Petition No 96 of 1978
Madan Bhatia and D Gobardhan for the Petitioner
V M Tarkunde and Mrs K Hingorani for the Respondent
The Judgment of the Court was delivered by KRISHNA IYER J
Mrs Maneka Gandhi figures as an accused a prosecution launched against her and others by Miss Rani Jethmalani for an offence of defamation in the Court of the Metropolitan Magistrate Bombay
The former is the editor of a monthly called Surya and is the wife of Shri Sanjay Gandhi and daughter in law of Smt
Indira Gandhi former Prime Minister
The latter is a young advocate and is the daughter of a leading advocate and currently an important Member of Parliament
The present petition has been made for a transfer of the criminal case from Bombay to Delhi and a string of grounds has been set out to validate the prayer
We decline the transfer and proceed to give our reasons without making the least reflection on the merits of the 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 hypersensitivity or relative convenience of a party or easy availability of legal services or like minigrievances
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 this touch stone 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 that angle the court may weigh the circumstances
381 One of the common circumstances alleged in applications for transfer is the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors especially when an alternative venue will not seriously handicap the complaint and will mitigate the serious difficulties of the accused
In the present case the petitioner claims that both the parties reside in Delhi and some formal witnesses belong to Delhi but the meat of the matter in a case of defamation is something different
The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom
They belong to Bombay in this case and the suggestion of the petitioner s counsel that Delhi readers may be substitute witness and the complainant may content herself with examining such persons is too presumptuous for serious consideration
Now to the next ground
The sophisticated processes of a criminal trial certainly require competent legal service to present a party s case
If an accused person for any particular reason is virtually deprived of this facility an essential aid to fair trial fails
If in a certain court the whole Bar for reasons of hostility or otherwise refuses to defend an accused person an extra ordinary situation difficult to imagine having regard to the ethics of the profession it may well be put forward as a ground which merits this Court s attention
Popular frenzy or official wrath shall not deter a member of the Bar from offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard
Counsel has narrated some equivocal episodes which seem to suggest that the services of an efficient advocate may not be easy to procure to defend Mrs Maneka Gandhi
Such glib allegations which involve a reflection on the members of the Bar in Bombay may not be easily accepted without incontestible testimony in that behalf apart from the ipse dixit of the party
That is absent here
It is difficult to believe that a person of the position of the petitioner who is the daughter in law of the former Prime
Minister wife of a consequential person and in her own right an editor of a popular magazine is unable to engage a lawyer to defend her while as a fact she is apparently represented in many legal proceedings quite competently
A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial
It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds jostling jeering or cheering and disrupting the judicial hearing with menaces noises and worse
This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice 382 and must surely be stamped out
Likewise the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion tumult or threat on account of pathological conditions prevalent in a particular venue the request for a transfer may not be dismissed summarily
It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear present one s case bring one s witnesses or adduce evidence
Indeed it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial Turbulent conditions putting the accused s life in danger or creating chaos inside the court hall may jettison public justice
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 a decision cited by the counsel for the petitioner Bose J Observed 
But we do feel that good grounds for transfer from Jashpurnagar 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 biassed 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 seen to be done1 Accepting this perspective we must approach the facts of the pre sent case without excitement exaggeration or eclipse of a sense of pro portion
It may be true that the petitioner attracts a crowd in Bombay
Indeed it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against leading to cries and catcalls or Jais  or zindabads 
Nor is it unnatural that some persons may have acquired for a time a certain quality of reputation sometimes notoriety sometimes glory which may make them the cynosure of popular attention when they appear in cities even in a court
And when unkempt crowds press into a court hall it is possible that some pushing some nudging some brash ogling or angry starting may occur in the rough and rumble resulting in ruffled feelings 1 GX Francis vs Banke Bihari Singh AIR 1958 SC 809 at 810
383 for the victim
This is a far cry from saying that the peace inside the court has broken down that calm inside the court is beyond restoration that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for the Judge parties advocates and witnesses has ceased to exist
None of the allegations made by the petitioner read in the pragmatic light of the counter averments of the respondent and understood realistically makes the contention of the counsel credible that a fair trial is impossible
Perhaps there was some rough weather but it subsided and it was a storm in the tea cup or transcient tension to exaggerate which is unwarranted
The petitioner s case of great insecurity or molestation to the point of threat to life is so far as the record bears out difficult to accept
The mere word of an interested party is insufficient to convince us that she is in jeopardy or the court may not be able to conduct the case under conditions of detachment neutrality or uninterrupted progress
We are disinclined to stampede ourselves into conceding a transfer of the case on this score as things stand now
Nevertheless we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial in the sense of a satisfactory participation by the accused in the proceedings against her
Mob action may throw out of gear the wheels of the judicial process
Engineered fury may paralyse a party s ability to present his case or participate in the trial
If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of E law runs aground
Even the most hated human anathema has a right to be heard without the rage of ruffians or huff or toughs being turned against him to unnerve him as party or witness or advocate
Physical violence to a party actual or imminent is reprehensible when he seeks justice before a tribual
Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue
It depends
The frequency of mobbing manouvres in court precincts is a bad omen for social justice in its wider connotation
We therefore think it necessary to make a few cautionary observations which will be sufficient as we see at present to protect the petitioner and ensure for her a fair trial
The trial court should readily consider the liberal exercise of its power to grant for the accused exemption from personal appearance save on crucial occasions
Shri Tarkunde for the respondent fairly agreed that it was the right thing to do and explained the special reason for its first rejection
If the application is again made the magistrate will deal with it as we have indicated
This will remove much of the unsavoury sensationalism which the hearing may suffer from 384 The magistrate is the master of the orderly conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow beating
It is his duty to clear the court of confusion yelling and nerve racking gestures which mar the serious tone of judicial hearing
The officials whose duty is to keep the public peace shall on requisition be at the command of the court to help it run its process smoothly
When the situation gets out of hand the remedy of transfer surgery may be prescribed
Every fleeting rumpus should not lead
to a removal of the case as it may prove to be a frequent surrender of justice to commotion
The magistrate shall take measures to enforce conditions where the court function free and fair and agitational or muscle tactics yield no dividends
If that fails the parties have freedom to renew their motion under section 406 of the Criminal Procedure Code
For where tranquil court justice is a casualty the collapse of our constitutional order is an inevitability
We dismiss for the nonce this transfer petition
SR Petition dismissed


Summary:
 HELD 1 Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when motion four transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the 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
courts must test the petitioner s grounds on this touch stone 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 that angle the Court may weigh the circumstances
380F H 2
The meat of the matter in a case of defamation is something different than the common ground usually urged like the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors especially when an alternative venue will not seriously handicap the complainant and will mitigate the serious difficulties of the accused
The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom
381A B In this case the witnesses belong to Bombay and the suggestion that Delhi readers may be substitute witnesses and the complainant may consent herself with examining such persons is too presumptuous for serious consideration
381 C 3
The sophisticated processes of a criminal trial certainly require competent legal service to present a party s case
If an accused person for any particular reason is virtually deprived of this facility an essential aid to fair trial fails
If in a certain Court the whole Bar for reasons of hostility or otherwise refuses to defend an accused person an extraordinary situation difficult to imagine having regard to the ethics of the profession it may well be put forward as a ground which merits the attention of the Supreme Court
Glib allegation like the services of an efficient advocate may not be easy to procure involves a reflection on the members of the Bar in Bombay and therefore is cannot be easily accepted without incontestible testimony in that behalf which is absent in this case
apart from the ipse dixit of the party Popular frenzy or official wrath shall not deter a member of the Bar from 379 offering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard
381C E 4
It is true that a detached atmosphere of a fair and impartial judicial trial is a must
The tendency of toughs and street roughs to violate the serenity of Court is obstructive of the course of justice and must surely be stamped out
Likewise the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion tumult or threat on account of pathological conditions prevalent in a particular venue the request for a transfer may not be dismissed summarily
It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear present one s case bring one s witnesses or adduce evidence
Indeed it is the duty of the Court to assure propitious conditions which conduce to comparative tranquility at the trial
Turbulent conditions putting the accused s life in danger or creating chaos inside the Court hall may jettison public justice
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 land 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
381 H 382A C In the instant case none of the allegations made by the Petitioner
read in the pragmatic light of the counter averments of the respondent and understood realistically makes the contention credible that a fair trial is impossible
383A B G X Francis vs Banke Bihari Singh AIR 1958 SC 809 and 810 referred to
Observation  The frequency of mobbing manouvres in Court precincts is a bad omen for social justice in its wider connotation
Mob action may throw out of the gear the wheels of the judicial process
Engineered fury may paralyse a party s ability to present his case or participate in the trial
If the justice system grinds to a halt through physical manouvres or sound and fury of the senseless populace the rule of law runs aground
Even the most hated human anethema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate
Physical violence to a party actual or imminent is reprehensible when he seeks justice before a tribunal
Manageable solutions must not sweep the Supreme Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade this Court to shift the venue
It depends
383D F Therefore a the trial Court should readily consider the liberal exercise of its power to grant for the accused exemption from personal appearance save on crucial occasions
383G b Where tranquil Court justice is a casualty the collapse of an constitutional order is an inevitability
The Magistrate is the master 380 of the orderly conduct of court proceedings and his authority shall not hang limp if his business is stalled by brow beating
It is his duty to clear the Court of confusion yelling and nerve racking gestures which mar the serious tone of judicial heaving
The officials whose duty is to keep the public peace shall on requisition be at the command of the Court to help it run its process smoothly
When the situation gets out of hand the remedy of transfer surgery may be prescribed Every fleeting rumpus should not lead to a removal of the ease as it may prove to be a frequent surrender of justice to commotion
The Magistrate shall take measures to enforce conditions where the Court functions free and fair and agitational our muscle tactics yield no dividends
384A C