VENKATESAN BALASUBRAMANIYAN versus THE INTELLIGENCE OFFICER, D.R.I. BANGALORE
[2020] 9 S.C.R. 942, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
[2020] 9 S.C.R.
VENKATESAN BALASUBRAMANIYAN
v.
      THE INTELLIGENCE OFFICER, D.R.I. BANGALORE
(Criminal Appeal No. 801 of 2020)
NOVEMBER 20, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973:
ss. 167(2) and 439(2) – Two cases registered under NDPS
Act – One case was of recovery of contraband from the car of the
appellants-accused in Hyderabad – Another case was of recovery
of contraband from the factory, in the State of Maharashtra from
where the appellant-accused were transporting the contraband –
Combined complaint was submitted in respect of both the cases in
the Court, in the State of Maharashtra – Default bail u/s.167(2)
granted to appellants-accused by the court in Hyderabad on the
ground that charge-sheet was not filed within 180 days – Thereafter,
custody of the appellants-accused granted to the Court in
Maharashtra in respect of the second case – Court in Maharashtra
found that combined complaint since was already filed within 180
days before it, default bail could not have been granted – Application
before High Court by authority concerned u/s. 439(2) seeking
cancellation of default bail – Bail cancelled by High Court – Appeal
to Supreme Court – Held: The combined complaint having been
filed well within 180 days, High Court did not commit any error in
cancelling the default bail.
Dismissing the appeals, the Court
HELD: 1. It is true that there were two offences, one at
Hyderabad
being at the instance of D.R.I., Hyderabad and another
by the D.R.I., Bangalore. A combined complaint taking care of
both the offences was filed before the Special Court, Omerga,
Maharashtra wherein offences committed by the accused were
also inquired and dealt with. There is ample material in the
complaint that the transportation of narcotic substance started
from Omerga, Maharashtra and was being allegedly to be taken
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to Chennai and intercepted at Hyderabad. The complaint gives
the detailed facts including the journey and the interception of
appellants at Hyderabad. [Para 12][951-D-F]
2. It was not even submitted that the Court where common
complaint had been filed against the accused had no jurisdiction
to inquire and try the offence. It was due to some
miscommunication that at the time when Court passed the order
on 12.07.2018, the factum of filing of combined complaint dated
06.07.2018 was not brought into the notice of Special Court,
Hyderabad.  Although, letter of the same date 12.07.2018 was
received by Special Court, Hyderabad from Special Court, Omerga
praying for custody of the appellants, which custody was also
granted by the Special Court, Hyderabad on the next day, i.e.,
13.07.2018. [Para 11][951-B-C]
3. All these facts were brought before the High Court in
application filed under Section 439(2) Cr.P.C. The combined
complaint having been filed on 06.07.2018, i.e., well within 180
days, the High Court did not commit any error in cancelling the
default bail, granted to the appellants on 12.07.2018. [Paras 11
and 12][951-D, F]
4. It is open for the appellants to file regular bail application
before Omerga Court under Section 439 Cr.P.C. afresh, which
may be considered on merits. [Para 13][951-H]
Pandit Dnyanu Khot v. State of Maharashtra and Ors.,
(2008) 17 SCC 745 – relied on.
Case Law Reference
(2008) 17 SCC 745
relied on
Para 10
CRIMINAL APPELLATE
JURISDICTION: Criminal Appeal
No. 715 of 2020.
From the Judgment and Order dated 30.11.2018 of the High Court
of Judicature at Hyderabad in Criminal Petition No. 10524 of 2018.
With
Criminal Appeal Nos.802 and 803 of 2020.
 VENKATESAN BALASUBRAMANIYAN v. THE INTELLIGENCE
OFFICER, D.R.I. BANGALORE
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Vikramjit Banerjee, ASG, M. Karpaga Vinayagam, Sr. Adv., Raj
Narayanan, SCV Vimal Pani, A. Lakshminarayanan, Abhishek Kumar,
Sanjay Kumar Tyagi, B. Krishna Prasad, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted. These three appeals have been filed against
the common judgment dated 30.11.2018 of the High Court of Judicature
at Hyderabad in Criminal Petition No.10524 of 2018 filed by the
respondent before the High Court. By the impugned judgment dated
30.11.2018, the petition filed by respondent Under Section 439(2) Cr.P.C.
has been allowed cancelling the bail granted to the appellants by order
dated 12.07.2018 by Metropolitan Sessions Judge, Hyderabad.
2. The facts and issues in these appeals being similar, it shall be
sufficient to refer to the pleadings in Criminal Appeal arising out SLP
(Crl.) No.1452 of 2019- Venaktesan Balasubramaniyan Vs. The
Intelligence Officer for deciding all these appeals, brief facts of which
are as under:-
2.1
On 11.01.2018, car bearing No. KA 39 M 2117 was
intercepted by Directorate of Revenue Intelligence
(hereinafter referred to as “D.R.I.”), Hyderabad at toll plaza,
Kamkole Village, Munnipalli Mandal, Sangareddy District,
Telangana in which appellants (driver and two men) were
travelling. The appellants along with other two persons
introduced themselves on being asked as to whether they
have secreted anything illegal in
the car, the appellants
replied in negative. The Officers searched the car and found
false casing behind the rear seats on the side walls of the
boot of the car with metal doors. The appellants opened
the door and few transparent packets with off-white
coloured packets were found in the casing attached to the
walls of the boot. The appellants told that packets were of
Narcotic drug, which were loaded in the car by a person
named Suraj at Omerga, Osmanabad District Maharashtra,
which were to be delivered at Chennai. The Officers in
presence of Panchas and the appellants opened the packet
and tested the materials in the packet. The appellants were
taken to the office of D.R.I., Hyderabad. The total quantity
of packets (Methaqualone) weighed to be 45.874 Kgs.
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2.2
On 12.01.2018, the appellants were arrested in exercise of
power conferred under Section 42 of NDPS Act, 1985
(hereinafter referred to as “Act, 1985”). The D.R.I. officers
prepared a crime report against all the accused-appellants
for commission of offence under Sections 22, 28 and 29 of
NDPS Act and produced them before the VI Additional
CMM, Hyderabad. The duty Magistrate on 12.01.2018
allowed the application for remand and the appellants were
remanded till 25.01.2018. On 25.01.2018, the appellants-
accused persons were produced before the Special Sessions
Judge Court, D.R.I., Hyderabad. Remand of the appellants
was extended from time to time. On 10.07.2018 the
appellants were remanded only for two days since 180 days
prescribed for filing charge sheet were coming to an end
on 12.07.2018.
2.3
On 12.07.2018, since 180 days had expired, the appellants
filed bail application. Learned Special Sessions Judge,
Hyderabad granted bail to the appellants under Section
167(2) Cr.P.C. On 12.07.2018, a letter was received from
the Additional Sessions Judge, Omerga, Maharashtra asking
to handover the custody of appellants to D.R.I., Bangalore
as they were required to appear before the Additional
Sessions Judge, Omerga, Maharashtra in Special Case
(NDPS) No.17 of 2018. The Sessions Court, Hyderabad
granted the custody of three accused on 13.07.2018 to the
D.R.I., Bangalore. D.R.I., Bangalore produced the
appellants before Additional Sessions Judge, Omerga,
Maharashtra on 14.07.2018 where they were remanded till
27.07.2018.
2.4
On 02.08.2018, D.R.I., Bangalore filed application before
the Special Court, Hyderabad to transfer the records in the
Hyderabad case to Omerga Sessions Court. On 24.08.2018,
the Special Sessions Judge, Hyderabad transferred the
records to the Omerga Court. When Special Court, Omerga,
Maharashtra came to know that the appellants-accused
have already been granted bail on 12.07.2018 before which
date charge sheet was already filed before the Omerga
Court on 06.07.2018 which was taken on file on 11.07.2018
 VENKATESAN BALASUBRAMANIYAN v. THE INTELLIGENCE
OFFICER, D.R.I. BANGALORE  [ASHOK BHUSHAN, J.]
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A show cause notice was issued to D.R.I., Bangalore to
give explanation. The D.R.I., Bangalore filed an application
for cancellation of bail under Section 439(2) Cr.P.C. in the
High Court by filing Criminal Petition No. 10524 of 2018.
The High Court by the impugned order dated 30.11.2018
cancelled the bail granted under Section 167(2) Cr.P.C.
dated 12.07.2018. Aggrieved against the order dated
30.11.2018, these appeals have been filed by the three
accused-appellants.
3. This Court on 22.02.2019 noticed that only one of the appellants,
i.e., Villayutham Nagu, has been released in pursuance of the bail order
dated 12.07.2018, interim order was passed in the special leave petition
filed by Villayutham Nagu alone and other two appellants being still under
custody, notices were issued in all the matters.
4. We have heard Shri M. Karpaga Vinayagam, learned senior
counsel for the appellants. Shri Vikramjit Banerjee, learned Additional
Solicitor General has appeared for the respondent.
5. Learned senior counsel for the appellants submits that before
the Special Judge, Hyderabad when the case was taken on 12.07.2018
neither any charge sheet was filed before the Special Court Hyderabad
nor any information was given to the Special Court that any charge
sheet has been filed in Omerga Court, Maharashtra. No complaint under
Section 36A(d) of NDPS Act having been filed by 12.07.2018 by which
period, 180 days had lapsed, the learned
Special Court had granted default
bail on 12.07.2018 to all the appellants. The accused were entitled for
default bail under Section 167(2) Cr.P.C. Learned Senior counsel submits
that instead of filing an application for cancellation of the bail before the
Special Court under Section 439(2) Cr.P.C., the respondent approached
before the High Court under Section 439(2) Cr.P.C. When the bail order
was passed by the Special Court, D.R.I., Bangalore ought to have
informed the Special Court seeking the cancellation of the bail by giving
explanation as to why the fact of filing combined complaint was not
informed to the Special Court. It is submitted that recovery of contraband
from accused by the D.R.I. Hyderabad is entirely different from the
Omerga case, which is relating to the recovery of the contraband
manufactured at the factory situated at Omerga. The appellants are to
be charged only for the offence of possession and the transport. The
appellants have no role to play with reference to the manufacture of
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contraband in the factory at Omerga. The seizure of the contraband
was made by the D.R.I., Hyderabad on 11.01.2018 only during the time
between 12 PM to 3:30 PM at Hyderabad whereas the recovery of
contraband from the factory at Omerga was made by the D.R.I.,
Bangalore only on 11.01.2018 at 4.30 PM and on 12.01.2018.  It is further
submitted that when the Special Court was not informed either on
10.07.2018 or 12.07.2018 that any charge sheet has been filed on
06.07.2018, no error was committed by Special Court in granting the
default bail under Section 167(2) Cr.P.C.
6. Learned Additional Solicitor General refuting the submissions
of the learned senior counsel for the appellants contends that the
appellant’s Car was intercepted at Hyderabad on basis of specific and
credible information that huge quantity of NDPS substance being illegally
manufactured in premises of M/s. Pragati Electrical Work Omerga,
which is being transported to Chennai. A total of 45.874 Kgs of NDPS
substance from the appellants was seized on the basis of specific
intelligence. In the voluntary statements of accused Nos. 5, 6 and 7
(appellants), recorded under Section 67 of the Act, 1985 in connection
with the seizure of 45.874 Kgs. of substance, they have stated that started
from Omerga for Chennai. It is submitted that a combined charge sheet
has been filed taking into consideration the entire sequence of events
including the seizure of 45.874 Kgs. NDPS substance by D.R.I.,
Hyderabad
in which present appellants are accused Nos. 5, 6 and 7. It
was due to non-communication of information of combined complaint
having been filed on 06.07.2018, the order was passed by the Special
Court on 12.07.2018 granting default bail whereas on the same day, a
letter was received by Special Court, Hyderabad where the Special
Court, Omerga has asked for the custody of the accused. All the
appellants filed a bail petition on 18.07.2018 before the Omerga Court
under Section 439 Cr.P.C., which bail application was subsequently
withdrawn on 25.09.2018.  On 31.10.2018, upon fulfilling the conditions
by one of the accused, Villayutham Nagu, the learned Omerga Court
was pleased to release the said accused on 31.10.2018 and rest of the
two accused are still in Osmanabad Jail. The High Court rightly cancelled
the bail, which was earlier granted by the learned Special Judge and the
combined complaint having been filed on 06.07.2018, which was also
taken on file on 11.07.2018, the appellants were not entitled for grant of
default bail under Section 167(2) Cr.P.C.
 VENKATESAN BALASUBRAMANIYAN v. THE INTELLIGENCE
OFFICER, D.R.I. BANGALORE  [ASHOK BHUSHAN, J.]
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7. We have considered the submissions of the learned counsel for
the parties and have perused the records.
8. The appellants’ car by which they were travelling from Omerga
to Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials of
Hyderabad Zonal Unit near the Kamkole near Hyderabad and from the
possession of the appellants 45.874 Kgs of narcotic substance was
recovered.  Appellants in the statement recorded under Section 67 of
NDPS Act have stated that they have started from Omerga to Chennai
in the car in which the narcotic substance was being transported. The
remand of the appellants was extended from time to time till 12.07.2018
by Special Court, Hyderabad. On 11.01.2018, recovery of narcotic
substance was also made at Omerga in the factory premises of
M/s Pragati Electrical Work, MIDC Omerga, Maharashtra, on which
D.R.I. has registered a case and a combined complaint dated 06.07.2018
was submitted by Intelligence Officer, D.R.I., Bangalore before the
Special Court, Omerga. Complaint under Section 36A(1)(d) of NDPS
Act for offences under Section 8(c) punishable under Section 21(c),
22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act has been
filed dated 06.07.2018 by Intelligence Officer, D.R.I. in Omerga Court.
The appellants have been made accused Nos. 5, 6 and 7 in the complaint.
The combined complaint has been brought on the record by the
respondent alongwith additional documents in which
with regard to
accused Nos. 5, 6 and 7, i.e., appellants in these appeals, apart from
other allegations and facts, following has been stated in paragraphs 110
and 111:-
“110.  The complainant submits that, accused No. 5, 6 and 7 i.e.
Shri Villautham Nagu (A5), Shri Venkatesan Balasubramaniyan
(A6) and Shri Vijay Kumar L (A7), who were possessing / carrying
the “Ketamlne Hydrochloride” a psychotropic substance in
commercial quantity in their car bearing No. KA-39-M-2117 from
Omerga to Chennai and the same was seized on 11.01.2018.
Hence, they had committed an offence under Section 8(c) and
9A are liable to be punished under Section 21(c), Section 22(c),
Section 23(c) read with Section 28, Section 29 and Section 38 of
the NDPS Act, 1985.
111. Ketamine Hydrochloride seized from accused No. 5, 6 and
7 under Mahazar dated 11.01.2018, under Mahazar dated
11/ 12.01.2018 and under 11.02.2018 have been submitted to the
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Hon’ble Court vide various Memos in a sealed cover are liable
for confiscation under the provisions of Section 60, 61, 62 and 63
of the NDPS Act. This Hon’ble Court may be pleased to pass
appropriate order relating to the confiscation of the above said
goods in terms of Section 63 of the NDPS Act.
Sl. No.
Quantity
Remarks
01.
45.874 Kgs
Seized 
under 
Mahazar 
dated 
11.01.2018  
02.
500 Grams
Seized 
under 
Mahazar 
dated, 
11/12.01.2018 
03.
9.65 Kgs
Seized 
under 
Mahazar 
dated 
11.06.2018  
9. The High Court in the impugned judgment noted that charge
sheet having been filed on 06.07.2018, i.e., well within the stipulated
period of 180 days, the accused could not have been granted the benefit
under Section 167 Cr.P.C.  In paragraph 8, following has been observed
by the High Court:-
“8. ……………….It can be culled out from the record that filing
of the single charge sheet on 06.07.2018 before the Additional
Sessions Court, Omerga, was not brought to the notice of the
Metropolitan Sessions Court, Hyderabad for whatever reason may
be. Since the factual aspect remains that the charge sheet was
filed on 06.07.2018 i.e., well within the stipulated period of 180
days, the respondents-accused are not entitled for the benefit under
Section 167(2) Cr.P.C. Under these circumstances, the
respondents-accused are entitled for bail in accordance with the
provisions laid down under the NDPS Act read with Sections 437
and 439 Cr.P.C. and accordingly they are entitled to
work out the
remedies under the said provisions.”
10. It is true that the bail granted under Section 167(2) Cr.P.c.
could have been cancelled under Section 439(2) Cr.P.C.. This Court in
Pandit Dnyanu Khot Vs. State of Maharashtra and Ors., (2008)
17 SCC 745 while considering the case where bail granted under Section
167(2) Cr.P.C. was cancelled under Section 439(2) Cr.P.C. by learned
Sessions Judge after noticing the facts upheld the order under Section
439 Cr.P.C. cancelling the bail.  Paragraphs 7, 8 and 9 of the judgment
are as follows:-
 VENKATESAN BALASUBRAMANIYAN v. THE INTELLIGENCE
OFFICER, D.R.I. BANGALORE  [ASHOK BHUSHAN, J.]
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“7. In the present case, against the accused, FIR for the offences
punishable under Sections 302, 307, 147, 148, 149, 324 and 323
IPC and Section 27 of the Arms Act was registered. The accused
were arrested on 28-10-2000 and were produced before the
Judicial Magistrate. They filed an application under Section 167(2)
CrPC on 25-1-2001 for releasing them on bail on the ground that
charge-sheet was not submitted within the stipulated time and the
court released them on bail on the same date by exercising
jurisdiction under Section 167(2) CrPC. The State filed an
application on 31-1-2001 under Section 437(5) and Section 439(2)
CrPC before the Sessions Judge, Kolhapur for cancellation of
bail. Before the said application could be finally disposed of, the
accused preferred an application Ext. 8 submitting that an
application under Sections 437(5) and 439(2) was not maintainable
before the Sessions Court and the State ought to have approached
the learned Magistrate for cancellation of the bail. That application
was rejected by the learned Additional Sessions Judge by order
dated 3-3-2001. Thereafter, the learned Additional Sessions Judge
by judgment and order dated 2-5-2001 allowed the said application
and set aside the order passed by the Judicial Magistrate on the
ground that the accused were released on the 89th day, that is,
before expiry of 90 days.
8. In our view, it appears that the High Court has committed basic
error in not referring to the provisions of Section 439(2) CrPC
which specifically empower the High Court or the Court of Session
to cancel such bail. Section 439(2) reads as under:
“439. Special powers of High Court or Court of Session
regarding bail.—(1)***
(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested
and commit him to custody.”
9. The proviso to Section 167 itself clarifies that every person
released on bail under Section 167(2) shall be deemed to be so
released under Chapter XXXIII. Therefore, if a person is illegally
or erroneously released on bail under Section 167(2), his bail can
be cancelled by passing appropriate order under Section 439(2)
CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has
also clarified that the concept of setting aside an unjustified, illegal
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or perverse order is totally different from the concept of cancelling
the bail on the ground that the accused has misconducted himself
or because of some new facts requiring such cancellation.”
11. It is not even submitted before us that Omerga Court where
common complaint has been filed against the accused had no jurisdiction
to inquire and try the offence. It was due to some miscommunication
that at the time when Court passed the order on 12.07.2018, the factum
of filing of combined complaint dated 06.07.2018 was not brought into
the notice of Special Court, Hyderabad. Although, letter of the same
date 12.07.2018 was received by Special Court, Hyderabad from Special
Court, Omerga praying for custody of the appellants, which custody
was also granted by the Special Court, Hyderabad on the next day, i.e.,
13.07.2018. All these facts were brought before the High Court in
application filed under Section 439(2) Cr.P.C. and the High Court has
rightly cancelled the bail order dated 12.07.2018. We do not find any
error in the order of the High Court cancelling the bail order dated
12.07.2018.
12. It is true that two offences, one at Hyderabad being at the
instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered
and another case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore,
Zonal Unit. A combined complaint taking care of both the offences was
filed before the Special Court, Omerga as noted above wherein offences
committed by the accused were
also inquired and dealt with. There is
ample material in the complaint that the transportation of narcotic
substance started from Omerga, Maharashtra and was being allegedly
to be taken to Chennai and intercepted at Hyderabad. The complaint,
which has been brought on the record gives the detailed facts including
the journey and the interception of appellants at Hyderabad. The combined
complaint having been filed on 06.07.2018, i.e., well within 180 days, the
High Court did not commit any error in cancelling the default bail granted
to the appellants on 12.07.2018.
13. We, thus, are of the view that there is no ground for interfering
with the impugned judgment /order of the High Court. We have noted
above that regular bail application under Section 439 Cr.P.C. was filed
before the Omerga Court by the appellants, which was withdrawn on
25.09.2018, we are of the view that it is open for the appellants to file
regular bail application before Omerga Court under Section 439 Cr.P.C.
afresh, which may be considered on merits without being influenced by
 VENKATESAN BALASUBRAMANIYAN v. THE INTELLIGENCE
OFFICER, D.R.I. BANGALORE  [ASHOK BHUSHAN, J.]
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any observations made by the order passed by the High Court in the
impugned judgment or observations made by us. We further observe
that bail application to be filed by the appellants under Section 439 Cr.P.C.
be considered and decided expeditiously. The order dated 12.07.2018
having been set aside by the High Court, which order having been
confirmed by this Court, the appellant, Villayutham Nagu is to surrender
before the Special Court, Omerga. All the appeals are dismissed subject
to liberty granted to the appellants as above.
Kalpana K. Tripathy
Appeals dismissed.
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JATINDERVEER ARORA & ORS.
v.
STATE OF PUNJAB
(Transfer Petition (Criminal) No. 452 of 2019)
NOVEMBER 25, 2020
[HRISHIKESH ROY, J.]
Code of Criminal Procedure, 1973:
s. 406 – Power under – Scope of – Held: Powers u/s. 406
must be exercised sparingly and only in deserving cases – Each
case has to be decided on its own facts – Apprehension of not getting
a fair and impartial trial cannot be founded on general allegations
– Consideration for transfer cannot be just the convenience of the
petitioner, but also of the complainant, witnesses and the prosecution
– The transfer would also reflect on the credibility of the judiciary
– Facts of the present case do not show that situation in the State
was not conducive for a fair trial for the prosecution and warrant
transfer of the case to another State – However, State is directed to
ensure safe conduct of proceedings at the trial courts and to provide
adequate security to the petitioners.
Dismissing the tranfser petitions, the Court
HELD: 1. For transfer of trial from one Court to another,
the Court must be fully satisfied about existence of such factors
which would make it impossible to conduct a fair trial. General
allegation of surcharged atmosphere is not however sufficient.
The apprehension of not getting a fair and impartial trial, cannot
be founded on certain grievances or convenience of the accused
but the reasons have to be more compelling than that. No
universal Rules can however be laid down for deciding
transfer
petitions and each case has to be decided in the backdrop of that
case alone. One must also be mindful of the fact that when trial is
shifted out from one State to another, it would tantamount to
casting aspersions on the Court, having lawful jurisdiction to try
the case. Hence powers under Section 406 CrPC must be
exercised sparingly and only in deserving cases when fair and
impartial trial uninfluenced by external factors, is not at all
[2020] 9 S.C.R. 953
953
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possible. If the Courts are able to function uninfluenced by public
sentiment, shifting of trial would not be warranted. [Para 11]
[962-B-D]
Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4
SCC 167 : Abdul Nazar Madan v. State of T.N. & Anr.
(2000) 6 SCC 204 : [2000] 3 SCR 1028; R. Balakrishna
Pillai v. State of Kerala (2000) 7 SCC 129 : [2000] 3
Suppl. SCR 26; Zahira Habibullah H. Sheikh v. State
of Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050;
Sri Jayendra Saraswathy Swamigal (II), T.N. v. State of
T.N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR 556;
Captain Amrinder Singh v. Prakash Singh Badal & Ors.
(2009) 6 SCC 260 : [2009] 9 SCR 194; Nahar Singh
Yadav & Others v. Union of India & Ors. (2011) 1 SCC
307 : [2010] 13 SCR 851; Umesh Kumar Sharma v.
State of Uttarakhand (2020) SCC OnLine SC 845 -
relied on.
2. The projection of surcharged atmosphere is not borne
out by the corresponding reaction of the petitioners, who are out
on bail. Being residents of Punjab, they continue to reside at
their usual place and are going about their routine affairs. If their
threat perceptions were genuine, they could not have gone about
their normal ways. For this reason, the Court is inclined to believe
that the atmosphere in the State does not justify shifting of the
trial venue to another State. [Para 13][962-G; 963-A]
3. While there is a specific instance of one of the defence
lawyer disassociating himself from the case on personal
ground,
the two regular lawyers continue to defend the accused without
any break or difficulty. This would suggest that petitioners defence
is not being compromised in Punjab and they are receiving
adequate legal assistance. [Para 5][960-B-C]
4. The solitary instance pertaining to one of  the  petitioners
is banked upon by all the other petitioners without any basis.
The order sheet of the proceedings reflects clearly that the
Magistrate administered caution and duly satisfied himself to
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ensure that legal procedures were followed and statement was
free and not under pressure. [Para 6][960-D-E]
5. Insofar as the death of one of the accused in jail is
concerned, the projection of the State is that he was murdered by
jail inmates undergoing life imprisonment in some other cases
and for this incident FIR is registered, chargesheet has been
filed and trial has commenced. It is not possible at this stage to
say if this incident has any link with the other cases or it is a
standalone event. Barring this issue, none of the petitioners have
raised any grievances before the court or before the police and
inference must accordingly will have to be drawn against their
transfer plea. [Para 14][963-C-D]
6. The sacrilege incidents occurred in 2015 and it has been
more than 2 years since the petitioners were arrayed as accused
in the cases. During this long period, no complaint has been made
by the petitioners of any threat to their security or to their
associates. The zimni orders of the Trial Court does not reflect
any bias faced, either by the accused or their family. [Para 14]
[963-B-C]
7. The matter emanates from the State of Punjab and the
accused, the witnesses and the prosecutors are all from the State.
If the trial is shifted out, all of them will face difficulties. The
State’s pleading shows that those accused who have a threat
implication, have been provided personal security by the district
police. Elaborate arrangements have been made on
orders of
the State’s DGP and on the trial date, additional force are deployed
in the concerned Courts, to ensure safety of the petitioners and
all other stakeholders. [Para 8][961-D-E]
8. Out of the six cases, the trial in one case is at the stage
of final arguments. The other five cases are at the stage of
evidence or charge stage. It will therefore not be fair to the
prosecution, the State and the witnesses who are yet to testify, to
shift the proceeding without compelling reasons as it will inevitably
delay the trial. Convenience of all parties should be looked at
and not just the party which is seeking transfer. [Para 15]
[963-E-F]
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
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9. In relation to the FIR in respect of one of the accused,
application with prayer to shift the case from JMIC, Phul to any
other Court in Bhatinda was filed by the complainant. The accused
had opposed the transfer application. In such circumstances, the
contrary plea for shifting of trial venue made before this Court,
would suggest that the Petitioners have taken conflicting stand
on shifting of trial venue before different forums. [Para 16]
[963-G-H]
Sri Jayendra Saraswathy Swamigal (II), T.N. v. State of
T.N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR 556;
Zahira Habibullah H. Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050 – distinguished.
10. From the available material, the Court cannot
reasonably conclude that the situation in Punjab is not conducive
for a fair trial for the petitioners. The few instances may suggest
heightened feelings amongst different groups, but they do not
call for transfer of proceedings to another State. [Para 18]
[964-D-E]
11. Moreover, it cannot just be the convenience of the
petitioner but also of the Complainant, the Witnesses, the
Prosecution. The larger issue of trial normally being conducted
by the jurisdictional Court must also weigh on the issue. When
relative convenience and difficulties of all the parties involved in
the process are taken into account, the conclusion is inevitable
that no credible case for transfer of trial to alternative venues
outside the State
of Punjab is made out, in the present matters.
[Para 19][964-E-F]
12. The transfer of trial from one State to another would
inevitably reflect on the credibility of the State’s judiciary. Except
for compelling factors and clear situation of deprivation of fair
justice, the transfer power should not be invoked. The present
bunch of cases are not perceived to be amongst such exceptional
categories. [Para 21][965-A]
13. The alternative plea that if the Trials cannot be shifted
to Delhi, they should be shifted to Chandigarh, was not the
pleaded case of the Petitioners. The suggested alternate venue
is Punjab’s capital and even though Chandigarh is an Union
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Territory, the population pattern in the city is like the rest of
Punjab.  Such alternative plea on the grounds pleaded in these
matters cannot therefore be countenanced. [Para 20][964-G-H]
14. Nonetheless, the State as assured to this Court, must
make all arrangement to ensure safe conduct of proceedings at
the trial courts and also provide adequate security to the
petitioners and their associates as might be warranted from the
security perspective. [Para 22][965-B]
Case Law Reference
(1979) 4 SCC 167
relied on
Para 10
[2000] 3 SCR 1028
relied on
Para 10
[2000] 3 Suppl. SCR 26
relied on
Para 10
[2004] 3 SCR 1050
relied on
Para 10
[2005] 4 Suppl. SCR 556
relied on
Para 10
[2009] 9 SCR 194
relied on
Para 10
[2010] 13 SCR 851
relied on
Para 10
[2005] 4 Suppl. SCR 556
distinguished
Para 17
[2004] 3 SCR 1050
distinguished
Para 17
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No. 452 of 2019.
Petitions filed under Section 406 of the Code of Criminal Procedure,
1973 read with Order XXXIX of the Supreme Court Rules, 2013 for
transfer of Chi No. 3/2019.
With
Transfer Petition (Criminal) Nos. 458, 459, 460, 461 and 462 of
2019.
Ms. Monalisa Kosaria, B.Shravanth Shanker, Ms. Jaspreet Gogia,
Karanvir Gogia, Ms. Shivangi Singhal, Advs. for the appearing parties.
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
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The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. These petitions are filed under Section 406 of the Code of
Criminal Procedure, 1973 (for short “the CrPC”) read with Order XXXIX
of the Supreme Court Rules seeking transfer of Trial of criminal cases
pending before the Courts at Bhatinda, Moga and Faridkot districts to
competent Court in Delhi or to any nearby State, out of Punjab.
2.1 Mr. Ranjit Kumar, the learned Senior Counsel for the petitioners
submits that as the matters relate to alleged sacrilege of the holy book,
Shri Guru Granth Sahibji in different places in Punjab, deep anguish and
bitterness is generated amongst a particular religious group, who form
majority of the population in the State of Punjab and therefore the accused
who are members of the Dera Sacha Sauda sect, are facing bias and
prejudice and are unlikely to get a fair trial in the face of strong presumption
of culpability.
2.2 According to the petitioners, the situation in Bhatinda and other
places is communally surcharged where, fair trial is a near impossibility.
In support of such contention, the Senior Counsel refers to the murder
of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha
Central jail, which according to Mr. Kumar, clearly shows the threat to
the lives of other co-accused in the hands of the radical elements in the
State.
2.3 Moreover, public appeals have been made to socially boycott
the accused
and also to those dealing with them, such as lawyers, doctors
and taxi drivers and these developments would indicate the serious
difficulties faced by the accused in conducting theirdefence.
2.4 The learned Senior Counsel submits that a forced statement
under Section 164 CrPC was obtained from the petitioner Jatinderveer
Arora and this would suggest that in Punjab, an unbiased prosecution
cannot be ensured.
2.5 The mass gathering in the court premises where these cases
are listed on the given dates, is highlighted by the Senior Counsel to
emphasize the threat to the life of the accused since adequate
arrangement and security has not been provided by the State.
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3.1 Representing the State of Punjab, Mr. Harin P Raval, learned
Senior Counsel on the other hand argues that no case for transfer is
made out by the petitioners.The Senior Counsel submits that although
petitioners speak of surcharged atmosphere and threat to their life in
Punjab, after getting bail, they continue to reside and conduct their affairs
in their respective place without any threat or hindrance. The State
Counsel then submits that petitioners have not suffered any prejudice in
conducting their defence as the same two lead counsels continue to
represent them since beginning. That apart, no specific instance, of denial
of medical or transportation service or legal assistance is brought to the
Court’s notice, notwithstanding the so called public appeal made by few
people.
3.2 According to the State’s lawyer, the petitioners have suppressed
material facts. Moreover, one solitary incident of Section 164 CrPC
statement of one of the petitioners i.e. Jatinderveer Arora (CHI No.3/
2019) is being relied upon by the other petitioners to project prejudice
although they are involved in other cases. It is then pointed out that
Jatinderveer Arora while in judicial custody, volunteered to record his
statement for which he was produced on 22.11.2018 before the JMIC,
Phul but on that date, he developed cold feet and was taken back and
the learned Magistrate directed the SSP, Bhatinda to ensure safety to
the accused. Later, on 01.12.2018, the same person
voluntarily recorded
his statement before the Magistrate and this is now part of the court
records. On that occasion, the concerned Magistrate administered caution
and satisfied himself that the petitioner was not pressurized or threatened
and made a voluntary disclosure.
3.3 On the security front, Mr. Raval submits, on instruction from
State DGP, that fool proof arrangements will be made and security will
be provided, to allay all apprehensions of the petitioners.
3.4 The difficulties for the witnesses and the prosecution, if the
trial venue is to be shifted out of Punjab, is also highlighted from the
respondents side.
4. The question to be answered here is whether the situation in
Punjab is so communally surcharged that the petitioners will be deprived
of fair trial, if they are to be conducted within the State. According to the
petitioners, the situation in the State is surcharged and non-conducive
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
[HRISHIKESH ROY, J.]
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for them. Yet, as can be seen, the petitioners have not moved out and
continue to reside in the usual place of residence in the State and doing
their work/business in a routine manner. No specific instance of prejudice
has been brought to this Court’s notice on account of social boycott call
or appeal to the Medical professionals or taxi operators, to deny co-
operation. Most particularly, no complaint is lodged before the court or
to the authorities about any threat or intimidation.
5. While there is a specific instance of one of the defence lawyer
disassociating himself from the case on personal ground, the two regular
lawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accused
since January, 2019 without any break or difficulty. This would suggest
that petitioners defence is not being compromised in Punjab and they
are receiving adequate legal assistance.
6. The case materials reflect that one of the petitioners,
Jatinderveer Arora on the first occasion, backed off from recording his
Section 164 CrPC statement on 22.11.2018, but the same person
voluntarily recorded his statement on 01.12.2018 and this is now part of
the trial Court records. This solitary instance pertaining to the CHI No.3/
2019 (relating to one of the petitioners of the TP(Crl.) No.452/2019), is
however banked upon by all the other petitioners without any basis. The
order sheet of the proceedings reflects clearly that the Magistrate
administered caution and duly satisfied himself on both occasions to
ensure that legal procedures were followed and statement was free and
not under pressure. The recording of the statement on 01.12.2018 in the
CHI No.3/2019 is found mentioned in the additional affidavit filed by the
petitioner.
7. It would be appropriate at this stage to note the cases for which
these transfer petitions are filed and the involvement of the petitioners in
which of those. The following chart will reflect this and the earlier stage
of those cases:
Sl. 
No.
Details of TP (Crl.)
Case No.
FIR Details
Stage
1.
TP(Crl.) No. 452/2019
Jatinderveer Arora &Ors. Vs. 
State of Punjab 
CHI 
No.3/2019 
FIR 
No.161/2015 
dt. 
20.10.2015 
PS 
Dayalpura, 
Dist.-
Bathinda 
Charge
NDOH: 
21.09.2019 
2.
TP(Crl.) No. 458/2019
Baljit Singh &Ors. Vs. State 
of Punjab 
CHI 
No.4/2019 
FIR 
No.86/2016 
dt. 
21.06.2016 
PS 
Dayalpura, 
Dist.-
Bathinda 
Charge
NDOH: 
21.09.2019
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3.
TP(Crl.) No. 459/2019
Prithvi Singh &Ors. Vs. 
State of Punjab 
CHI 
No.84/2019 
FIR 
No.79/2015 
dt. 
04.11.2015 
PS 
Samalsar, 
Dist.-
Moga 
Prosecution 
evidence 
NDOH: 
23.09.2019 
4.
TP(Crl.) No. 460/2019
Baljit Singh &Ors. Vs. 
State of Punjab 
CHI 
No.6/2019 
FIR 
No.98/2016 
dt. 
03.07.2016 
PS Dayalpura, 
Dist.-
Bathinda 
Charge
NDOH: 
21.09.2019 
5.
TP(Crl.) No. 461/2019
Bajit Singh &Ors. Vs. State 
of Punjab 
CHI 
No.5/2019 
FIR 
No.89/2016 
dt. 
29.06.2016 
PS Dayalpura, 
Dist.-
Bathinda 
Charge
NDOH: 
21.09.2019 
6.
TP(Crl.) No. 462/2019
Sukhwinder 
Singh 
@ 
Sunny &Ors. Vs. State of 
Punjab 
SC 
No.67/2019 
FIR 
No.89/2018 
dt. 
13.06.2018 
PS 
City 
Kotkapura, 
Dist.-Faridkot 
Evidence
NDOH: 
09.10.2019 
8. This Court is conscious that the matter emanates from the
State of Punjab and the accused, the witnesses and the prosecutors are
all from the State. If the trial is shifted out, all of them will face difficulties.
The State’s pleading shows that those accused who have a threat
implication have been provided personal security by the district police.
The learned Senior Counsel for the State in the context submits that
elaborate arrangements have been made on orders of the State’s DGP
and on the trial date, additional force are deployed in the concerned
Courts, to ensure safety of the petitioners and all other stakeholders.
Moreover, as the sacrilege incidents occurred in 2015, with passage of
time, the atmosphere is expected to have
mellowed down considerably.
This can also be gathered from the fact that the petitioners who reside in
different districts in Punjab are doing their work or business in a routine
manner, without any inhibition.
9. In such a scenario, it has to be evaluated whether fair trial is an
impossibility, before the Courts in Punjab or is it a case of mere
apprehension by the accused.
10. In support of their rival contentions, learned Senior Counsel
Mr. Ranjit Kumar for the petitioners and Mr. Harin P Rawal, the learned
Senior Advocate for the State of Punjab, have relied on Maneka Sanjay
Gandhi Vs. Rani Jethmalani1, Abdul Nazar Madan Vs. State of T.N.
& Anr.2, R. Balakrishna Pillai Vs. State of Kerala3, Zahira
1 (1979) 4 SCC 167
2 (2000) 6 SCC 204
3 (2000) 7 SCC 129
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
[HRISHIKESH ROY, J.]
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Habibullah H. Sheikh Vs. State of Gujarat4, Sri Jayendra Saraswathy
Swamigal (II), T.N. Vs. State of T.N.5, Captain Amrinder Singh Vs.
Prakash Singh Badal & Ors.6 and Nahar Singh Yadav & Others Vs.
Union of India & Ors7.
11. The proposition of law that emanates from the above judgments
is that for transfer of trial from one Court to another, the Court must be
fully satisfied about existence of such factors which would make it
impossible to conduct a fair trial. General allegation of surcharged
atmosphere is not however sufficient. The apprehension of not getting a
fair and impartial trial cannot be founded on certain grievances or
convenience of the accused but the reasons have to be more compelling
than that. No universal Rules can however be laid down for deciding
transfer petitions and each one has to be decided in the backdrop of that
case alone. One must also be mindful of the fact that when trial is shifted
out from one State to another, it would tantamount to casting aspersions
on the Court, having lawful jurisdiction to try the case. Hence powers
under Section 406 CrPC must be exercised sparingly and only in
deserving cases when fair and impartial trial uninfluenced by external
factors, is not at all possible. If the Courts are able to function uninfluenced
by public sentiment, shifting of trial would not be warranted.
12. Analyzing the earlier precedents on the issue, this Court in
Umesh Kumar Sharma Vs.
State of Uttarakhand8, stated the legal
position as under:-
“20. The above legal enunciations make it amply clear that transfer
power under section 406 of the Code is to be invoked sparingly.
Only when fair justice is in peril, a plea for transfer might be
considered. The court however will have to be fully satisfied that
impartial trial is not possible. Equally important is to verify that the
apprehension of not getting a level playing field, is based on some
credible material and not just conjectures and surmises.”
13. Here the projection of surcharged atmosphere is not borne
out by the corresponding reaction of the petitioners, who are out on bail.
Being residents of Punjab, they continue to reside at their usual place
4 (2004) 4 SCC 158
5 (2005) 8 SCC 771
6 (2009) 6 SCC 260
7 (2011) 1 SCC 307
8 2020 SCC OnLine SC 845
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and are going about their routine affairs. If their threat perceptions were
genuine, they could not have gone about their normal ways. For this
reason, the Court is inclined to believe that the atmosphere in the State
does not justify shifting of the trial venue to another State.
14. We must also be mindful of the fact that the sacrilege incidents
occurred in 2015 and it has been more than 2 years since the petitioners
were arrayed as accused in the cases. During this long period, no
complaint has been made by the petitioners of any threat to their security
or to their associates. The zimni orders of the Trial Court does not reflect
any bias faced, either by the accused or their family. Insofar as the
death of the accused Bittoo in Nabha jail,the projection of the State is
that he was murdered by jail inmates undergoing life imprisonment in
some other cases and for this incident FIR under Section 302, 34, 120B
IPC is registered in PS Sadar, Nabha, chargesheet has been filed and
trial has commenced. It is not possible at this stage to say if this incident
has any link with the other cases or it is a standalone event. Barring this
issue, none of the petitioners have raised any grievances before the
court or before the police and inference must accordingly will have to be
drawn against their transfer plea.
15. The learned State counsel informs the Court that out of the
six cases mentioned in the chart (not up-to-date), the trial in one case
(FIR 79/2015-
State Vs. Prithvi Singh) is at the stage of final arguments.
The other five cases are at the stage of evidence or charge stage. It will
therefore not be fair to the prosecution, the State and the witnesses who
are yet to testify, to shift the proceeding without compelling reasons as it
will inevitably delay the trial. One must also remember that convenience
of all parties should be looked at and not just the party which is seeking
transfer.
16. Another vital aspect, as has been pointed out by the state
counsel, will bear consideration.  The Complainant Iqbal Singh, in relation
to the FIR 161/15(Jatinderveer Arora Vs. State of Punjab) filed
application with prayer to shift the case from JMIC, Phul to any other
Court in Bhatinda. The said application came to be dismissed by the
learned Chief Judicial Magistrate, Bhatinda by an order dated 04.02.2020,
wherein it has been recorded that the accused opposed the transfer
application. In such circumstances, the contrary plea for shifting of trial
venue made before this Court would suggest that the Petitioners have
taken conflicting stand on shifting of trial venue before different forums.
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
[HRISHIKESH ROY, J.]
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17. Mr. Ranjit Kumar, the learned Senior Counsel has heavily
relied upon two judgments of this Court [Sri Jayendra Saraswathy
Swamigal (II) (supra) and Zahira Habibullah H. Sheikh (supra)] where
change of trial venue was allowed. In the present matter, although the
case could generate strong feelings between the opposing groups, no
such overwhelming factors as was visible in Sri Jayendra Saraswathy
Swamigal (II)(supra) are brought to light by the learned counsel. In the
second case i.e. Zahira Habibullah H. Sheikh (supra), the Court found
that the State was conducting the investigation in a partisan manner and
likelihood of miscarriage of justice was visible. The subversion of justice
delivery system in the concerned State was seen and congenial
atmosphere was found missing. For such compelling factors, the Court
directed that re-trial shall be done by a Court under the jurisdiction of the
Bombay High Court and public prosecutor be changed. However, the
circumstances in the present matters cannot be equated with those noticed
in Zahira Habibullah H. Sheikh (supra) or in Sri Jayendra
Saraswathy Swamigal (II) (supra). Therefore, I am of the considered
opinion that similar relief cannot be granted in the present proceedings.
18. From the available material, this Court cannot reasonably
conclude that the situation in Punjab is not conducive for a fair trial for
the petitioners. The few instances mentioned by the
petitioners’ counsel
may suggest heightened feelings amongst different groups but they do
not in my estimation, call for transfer of proceedings to another State.
19. Moreover, it cannot just be the convenience of the petitioner
but also of the Complainant, the Witnesses, the Prosecution. The larger
issue of trial normally being conducted by the jurisdictional Court must
also weigh on the issue. When relative convenience and difficulties of
all the parties involved in the process are taken into account, the conclusion
is inevitable that no credible case for transfer of trial to alternative venues
outside the State of Punjab is made out, in the present matters.
20. The final submission of Petitioners’counsel was that, if the
Trials cannot be shifted to Delhi, they should be shifted to Chandigarh.
This was not the pleaded case of the Petitioners. The suggested alternate
venue is Punjab’s capital and even though Chandigarh is an Union
Territory, the population pattern in the city is like the rest of Punjab.
Such alternative plea on the grounds pleaded in these matters cannot
therefore be countenanced.
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21. The transfer of trial from one state to another would inevitably
reflect on the credibility of the State’s judiciary. Except for compelling
factors and clear situation of deprivation of fair justice, the transfer power
should not be invoked. The present bunch of cases are not perceived to
be amongst such exceptional categories.
22. For the above reasons, these cases are found devoid of merit.
Nonetheless, the State as assured to this Court, must make all arrangement
to ensure safe conduct of proceedings at the trial courts and also provide
adequate security to the petitioners and their associates as might be
warranted from the security perspective. It is however made clear that
the observations in this judgment are only for disposal of these petitions
and should have no bearing for any other purpose.
23. Subject to the aforesaid cautionary observation, the cases are
dismissed.
Kalpana K. Tripathy
Transfer Petitions dismissed.
JATINDERVEER ARORA & ORS. v. STATE OF PUNJAB
[HRISHIKESH ROY, J.]