KANAKLATA versus STATE OF (NCT) OF DELHI & ORS.
[2015] 2 S.C.R. 559, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A 
B . 
(2015] 2 S.C.R. 559 
KANAKLATA 
v. 
STAT!= OF (NCT) OF DELHI & ORS. 
(Criminal Appeal No.222 of 2015) 
FEBRUARY 04, 2015 
[T. S. THAKUR, ADARSH KUMAR GOEL AND 
C 
R. BANUMATHI, JJ.] 
Transfer petition: Complaint u/ss.3(1)(x), (xi}, (xv) of 
Scheduled Caste and Scheduled Tribe (Prevention of 
Atrocities Act}, 1989 and ss.3231354, /PC - Sessions Judge, 
o Rohini discharged the accused persons for offence under 
the Special Act of 1989 - High Court allowed the revision 
petition filed by the complainant with a direction to trial court 
to pass fresh order being uninfluenced by any observation 
made in . 
earlier order- Complainant filed transfer petition 
E on the ground that it apprehended biased approach of the 
trial court in view of its findings recorded in the order of 
discharge passed earlier - Session court dismissed the 
petition - Complainant filed transfer petition before the High 
Court which was also dismissed- On appeal, Held: Majority 
F 
view: Jn the ordinary course, if an order passed by the Court 
is set aside the observations and findings recorded therein 
also get obliterated for all intents and purposes - So also if 
the High Court makes the position clear that any such 
G observation shall not influence the Court concerned while 
making a fresh order the same should ordinarily put the 
matter beyond the pale of any controversy- However, there 
may still be situations where the nature of the observations 
made by the court concerned create a
reasonable 
H 
559
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
560 
apprehension in the mind of the litigant that the Court has A 
so committed itself to a given approach or thought process 
that it may not be possible for it to retrace its steps to take a 
fair and non-partisan view in the matter- In the instant case, 
despite the safeguards provided by the High Court's 
observations, the' apprehension of the complainant B 
continued to subsist- Such apprehension cannot be said to 
be wholly misconceived nor can it be dubbed as forum 
shopping in disguise - The earlier order passed by trial Court 
was so strongly worded that it could in all likelihood give rise C 
to a reasonable apprehension in the mind of the complainant 
which cannot be lightly brushed aside - On that test, High 
Court ought to have directed a transfer-In as much as itdid 
not do so, it is directed to transfer the case to another Court 
- Minority opinion: Any casual observations made by a o 
presiding officer of trial court would not be a sufficient ground 
for transfer for the reason that trial courts work in a charged 
atmosphere and they do not have the benefit of a detached 
atmosphere of the higher courts so as to think coolly and 
decide patiently-Appellant did not make out any sufficient 
E 
ground for transfer. 
Allowing the appeal, the Court 
HELD: (Majority opinion) (Per T.S. Thakur and 
F 
Adarsh Kumar Goel, JJ) 
The trial court had while discharging the accused 
persons under the Special Act made certain
observations aboutthe alleged misuse of the provisions 
G 
of the said Act by unscrupulous elements and also 
certain suggestions for remedying that situation. The trial 
court had come to the conclusion that there is no real 
basis for it to frame any charge against the accused 
persons under the said Act. But it is equally true that 
H 
.
•
561 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A while setting aside that order and directing a fresh order 
on the question of charge, the High Court has clearly 
mentioned that the trial Court shall remain uninfluenced 
by the observation made in its earlier order. That 
observation is, in the opinion of the High Court, a 
8 sufficient safeguard against any possible prejudice to 
the complainant-appellant making transfer of the case 
from the Court at Rohini to any other Court unnecessary. 
Now in the ordinary course if an ord.er passed by the 
C Court is set aside the observations and findings 
recorded therein also get obliterated for all intents and 
purposes. So also if the High Court makes the position 
clear that any such observation shall not influence the 
Court concerned while making a fresh order the same 
o should ordinarily put the matter beyond the pale of any 
controversy. Having said that, there may still be 
situations where the nature of the observations made 
by the court concerned create a reasonable 
apprehension in the mind of the litigant that the Court 
E has so committed itself to a given approach or thought 
process that it may not be possible for it to retrace its 
steps to take a fair and non-partisan view in the matter. 
The present appears to be one such case where despite 
the safeguards provided by the High Court's 
F observations, the apprehension of the complainant 
continues to subsist. Such apprehension cannot be said 
to be wholly
misconceived nor can it be dubbed as 
forum shopping in disguise. The earlier order passed 
G by the trial Court is so strongly worded that it could in 
all likelihood give rise to a reasonable apprehension in 
the mind of the complainant which cannot be lightly 
brushed aside. 
The question is whether the 
apprehension of the complainant is reasonable to direct 
H a transfer. Justice must not only be done but must seem
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
562 
to have been done. A lurking suspicion in the mind of A 
the complainant will leave him with a brooding sense of 
having suffered injustice not because he had no case, 
but because the Presiding Officer had a preconceived 
notion about it. On that test the High Court ought to have 
directed a transfer. In as much as it did not do so, it is 
B 
directed to transfer the case to another Court. [para 5] 
[565-F-H; 566-A-H; 567-A-B] 
HELD: (Minority opinion) (Per Banumathi; J) 
c 
1. Earlier when the revision petition was allowed by the 
High Court and the matter was remitted back to the trial 
court, no apprehension of bias was expressed nor any 
request was made for a transfer of the case from the 
Special Court to some other court. Under Section 482 
D 
Cr.P.C., in order to secure ends of justice, the High Court 
has inherent power to pass appropriate order. Having 
accepted the order of remand to the trial court for 
consideration of the matter afresh, the appellant is not . 
justified in seeking transfer. The appellant has neither E 
challenged the said order of remand nor raised the 
apprehension that the trial court may not adopt a fair 
approach. The case was registered by the complainant 
who were the tenants againstthe respondents-landlords 
F 
numbering as many as nine persons and the matter is 
pending trial since 2009. By filing transfer petition in 
2013, the appellant seemed to appear to be interested 
only in delaying
the matter. In considering the transfer 
application, it is to be kept in mind that whether a litigant G 
could reasonably apprehend a bias attributable to a 
presiding Judge. Transfer of a case from one court to 
another has serious effects on the Judge from whom 
the case is sought to be transferred. Mere presumptions 
or possible assumptions are not sufficient for transfer H
563 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A of a case. Only on good and sufficient grounds a transfer 
can be ordered. The appellant has not made out any 
good and sufficient ground for transfer. Any casual 
observations made by a presiding officer of trial court 
would not be a sufficient ground for transfer for the 
B reason that the trial courts work in a charged atmosphere 
and they do not have the benefit of a detached 
atmosphere of the higher courts so as to think coolly 
and decide patient!~· Appellant did not make out any 
C sufficient ground for transfer and the request for transfer 
is bereft of merits. [Paras 5 to 9] [569-C-H; 570-A-C; 571-
C] 
K.P. Tiwari v. State of M.P. 1994 (Supp. 1) SCC 540: 1993 
D (3) Suppl. SCR 497 - relied on. 
Case Law Reference 
Per Banumathi, J.: 
E 1993 (3) Suppl. SCR 497 
relied on 
Para 8 
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal No. 
222of2015 
From the Judgment and Order dated 29.08.2013 of the High 
F Court of Delhi at New Delhi in Transfer Petition (Crl) No. 31 of 
2013 
Pankaj Kumar for the Appellant. 
G .PinkyAnand,ASG, P. K. Dey, Sadhna Sandhu, R. K. Tripathy, 
D. S. Mahra for the Respondents. 
The Judgments of the Court were delivered by 
H 
T. S. THAKUR, J. 1. Leave granted.
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
564 
2. This appeal arises out of an order dated 29th August, 2013 
A 
passed by a learned Single Judge of the High Court of Delhi 
whereby the High Court has dismissed T.P. (Crl.) No.31 of 
2013 filed by the appellant seeking transfer of Sessions Case 
No.1006 of 2009 from the Court where it is presently pending 
B 
to any other Sessions Court at Rohini or Tis Hazari. 
3. Sessions Case No.1006 of2009 arises out of FIR No.156/ 
2008 registered at P.S. Mukherjee Nagar for commission of 
offences punishable under Sections 323/354 of the IPC and 
Sections 3(i) (X) (XI) (XV) of Scheduled Caste and Scheduled 
C 
Tribe (Prevention of Atrocities Act), 1989. Additional Sessions 
Judge, Rohini, before whom the matter is currently pending, 
appears to have heard the parties on the question of framing 
of charges and by an order dated 22nd March, 2010 
D 
discharged the accused persons for the offences under the 
Scheduled Castes and Scheduled Tribes (Prevention of 
Atrocities Act), 1989. The case was in that view made over to 
the illaqa Magistrate for consideration whether charges under 
the Indian Penal Code need to be framed in the case. 
E 
4. The complainant questioned the discharge order passed 
by the trial Court before the High Court in a revision petition 
which was allowed by the High Court by its order dated 10th 
December, 2012 with a direction to the trial Court to pass a 
F 
fresh order on the subject after hearing both the
parties. It was 
at this stage, that the-complainant expressed an apprehension 
about the fairness of the approach which the trial Court may 
adopt in view of the findings recorded in the order of discharge 
earlier passed by her. The complainant (appellant herein) 
G 
expressed these fears first in T.P. (Crl.) No.31of2013 filed 
before the Sessions Judge, Rohini which was dismissed by 
the said court by order dated 22nd May, 2013 holding that 
since no other officer in North West District in Delhi has been 
H
565 
SUPREME COURT REPORTS 
(2015) 2 S.C.R. 
A 
notified for trial of cases under the Scheduled Caste and 
Scheduled Tribe (Prevention of Atrocities Act), 1989 the prayer 
for transfer in essence was tantamount to asking for a transfer 
to another district which could be allowed only by the High 
Court. It was in the above backdrop that the complainant filed 
B T.P. (Crl.) No.31 of 2013 before the High Court seeking transfer 
of the case to any other Court competent to try the same 
outside Rohini District. That application, as noticed above, 
has been dismissed by the High Court in terms of the order 
C 
impugned in the present appeal primarily on the ground that 
the order passed by the High Court has made it sufficiently 
clear that the observations made in the order passed by the 
trial Court shall not influence any fresh order which the said 
Court may pass pursuant to the remand made by the High 
o Court. The High Court has also observed that the complainant 
(appellant herein) had while filing Crl. R:P. No.242 of 201 O 
against the discharge order expressed no apprehension nor 
sought transfer of the case from the Court where it is pending 
E 
to any other Court. 
5. We have heard learned counsel for the parties at some 
. length. It is true that the trial Court had while discharging the 
accused persons under the Special Act mentioned above, 
made certain observations about the alleged misuse of the 
F 
provisions of the said Act by unscrupulous elements and also
certain suggestions for remedying that situation. It is also true 
that the trial Court had come to the conclusion that there is no 
real basis for it to frame any charge against the accused 
persons under th'e said Act. But it is equally true that while 
G setting aside that order and directing a fresh order on the 
question of charge, the High Court has clearly mentioned that 
the trial Court shall remain uninfluenced by the observation 
made in its earlier order. That observation is, in the opinion of 
H the High Court, a sufficient safeguard against any possible
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
566 
[T. S. THAKUR, J.] 
prejudice to the complainant-appellant herein making transfer 
A 
of the case from the Court at Rohini to any other Court 
unnecessary. Now in the ordinary course if an order passed 
by the Court is set aside the observations and findings 
recorded therein also get obliterated for all intents and 
purposes. So also if the High Court makes the position clear 
B 
that any such observation shall not influence the Court 
concerned while making a fresh order the same should 
ordinarily put the matter beyond the pale of any controversy. 
Having said that, there may still be situations where the nature 
C 
of the observations made by. the court concerned create a 
reasonable apprehension in the mind of the litigant that the 
Court has so committed itself to a given approach or thought 
process that it may not be possible for it to retrace its steps to 
take a fair and non-partisan view in the matter. The present o 
appears to be one such case where despite the safeguards 
provided by the High Court's observations, the apprehension 
of the complainant continues to subsist. We do not think that 
such apprehension is wholly misconceived nor can it be 
dubbed as forum shopping in disguise. The earlier order 
E 
passed by the trial Court is so strongly worded that it could in 
all likelihood give rise to a reasonable apprehension in the 
mind of the complainant which cannot be lightly brushed aside. 
We must hasten to
add that we are not in the least suggesting 
that the Presiding Officer of the trial Court is totally incapable 
F 
of adopting a fair approach while passing a fresh order but 
then the question is not whether the Judge is biased or 
incapable of rising above the earlier observations made by 
her. The question is whether the apprehension of the 
G 
complainant is reasonable for us to direct a transfer. Justice 
must not only be done but must seem to have been done. A 
lurking suspicion in the mind of the complainant will leave him 
with a brooding sense of having suffered injustice not because 
he had no case, but because the Presiding Officer had a 
H
567 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A 
preconceived notion about it. On that test we consider the 
present to be a qase where the High Court ought to have 
directed a transfer. In as much as it did not do so, we have no 
option but to interfere and direct transfer of tr ·. case to another 
Court. 
B 
6. We are mindful of the fact that the transfer ordered by us 
may cause inconvenience and harassment to the accused 
persons but that can, in our opinion, be taken care of by 
directing that in case an application for exemption from 
C personal appearances is filed, the Court concerned shall 
consider the same and pass appropriate orders in accordance 
with law. 
7. In the result, we allow this appeal, set aside the order passed 
D by the High Court and direct that Sessions Case No.1006 of 
2009 pending in the Court of Additional District and Sessions 
Judge, Rohini shall stand transferred from that Court to the 
Court of Sessions Judge, Tis Hazari, who shall try the same 
himself or make it over to any other Court duly notified and 
E competent to do so. Record of the case shall be transmitted 
to the transferee Court expeditiously. 
R. BANUMATHI, J. I have had the benefit of going 
through the judgment proposed by his Lordship Justice T.S. 
F Thakur. For the reasons which I have indicated below, I am 
unable to agree with the proposed final decision and in my 
view, the present appeal is liable to be dismissed. 
2. The appellant seeks transfer of Sessions Case 
G
No.1006/2009 arising out of FIR No.156/2008 registered at 
Police Station Mukherjee Nagar, Delhi. As per the allegations 
made by the complainant/appellant in the FIR dated 4.5.2008, 
they have been the tenants under the accused persons and 
H on 3.5.2008, accused/respondent Nos. 2 to 10 obstructed and
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
568 
[R. BANUMATHI, J.) 
abused them by uttering objectionable caste based remarks A 
against them. On the basis of the complaint lodged by the 
complainant, FIR was registered under Sections 323/341/354 
and 34 IPC and Section 3(i) (x), (xi) and (xv) of Scheduled 
Castes and Scheduled Tribes (Prevention of Atrocities) 
Act, 1989. On the discharge petition filed by respondent Nos.2 
B 
to 10, learned Additional Sessions Judge, Rohini Courts, vide 
Order dated 22.3.2010 discharged all the respondents. Being 
aggrieved, the complainant moved the High Court in revision 
petition being Criminal Revision No. 242/2010 challenging the C 
order of discharge. Vide Order dated 10.12.2012, the High 
Court set aside order of discharge and remitted the matter 
back to the trial court to consider the matter afresh being 
uninfluenced by the observations made in the earlier order 
dated 22.3.2010. Thereafter, the complainant moved a transfer D 
petition before the District & Sessions Judge, Rohini Courts 
and also the High Court. Both the petitions were dismissed 
vide Order dated 22.?.2013 and 29.8.2013 respectively. Being 
aggrieved, the complainant has filed this appeal by way of 
special leave, seeking transfer ofthe Sessions Case No.1006/ E 
2009 expressing apprehension that in spite bf the direction of 
the High Court, the trial court might proceed on a pre-conceived 
notion. 
3. We have heard the learned counsel for the appellant and 
F 
Ms.
Pinky Anand, learned Additional Solicitor General of India 
for respondent No.1 and Ms. Susmita Lal, learned counsel for 
respondent Nos. 2 to 10. 
4. An application for transfer of a case pending against the G 
accused cannot be permitted merely because the learned 
Sessions Judge had made certain observations and recorded 
finding in the earlier order dated 22.3.2010 while allowing the 
discharge petition. The said order dated 22.3.2010 was set H
569 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A aside by the High Court and the. matter was remanded to the 
Sessions Court to consider the matter afresh being 
uninfluenced by any observation made in the earlier order. 
When the earlier order has been set aside by the High Court 
and the matter was remitted back to the Sessions Court for 
B consideration of the matter afresh, apprehension of the 
appellant that the learned trial judge may not adopt a fair 
approach is unteriable. 
5. As rightly pointed out by the High Court, earlier when the 
C revision petition was allowed by the High Court and the matter 
was remitted back to the trial court, no apprehension of bias 
was expressed nor any request was made for a transfer of the 
case from the Special Court to some other court. On behalf of 
0 
the appellant, it is now contended that in the said revision 
petition, the appellant could not have asked for transfer of the 
criminal case. In my considered view, such contention cannot 
be countenanced. Under Section 482 Cr.P.C., in order to 
secure ends of justice, the High Court has inherent power to 
E pass appropriate order. Having accepted the order of remand 
to the trial court for consideration of the matter afresh, the 
appellant is not justified in seeking transfer. The appellant 
has neither challenged the said order of remand nor raised 
the apprehension that the trial court may not adopt a fair 
F approach. 
6. It is pertinent to note that the case has been registered
by 
the complainant who were the tenants against the respondents-
landlords numbering as many as nine persons and the matter 
G is pending trial since 2009. By filing transfer petition in 2013, 
the appellant seems to appear to be interested only in delaying 
the matter. 
7. In considering the transfer application, it is to be kept in 
H mind that whether a litigant could reasonably apprehend a bias
KANAKLATA v. STATE (NCT) OF DELHI & ORS. 
570 
[R. BANUMATHI, J.] 
attributable to a presiding Judge. Transfer of a case from one A 
court to another has serious effects on the Judge from whom 
the case is sought to be transferred. Mere presumptions or 
possible assumptions are not sufficient for transfer of a case. 
Only on good and sufficient grounds a transfer can be ordered. 
In my considered view, the appellant has not made out any 8 
good and sufficient ground for transfer. 
8. It is also pertinent to note that any casual observations made 
by a presiding officer of trial court would not be a sufficient 
ground for transfer for the reason that the trial courts work in a C 
charged atmosphere and they do not have the benefit of a 
detached atmosphere of the higher courts so as to think cooly 
and decide patiently. In this regard, we may usefully refer to 
the decision of this Court in K.P. Tiwariv. State of M.P., 1994 0 
(Supp. 1) SCC 540, in which this Court has observed as under:-
" ... The higher courts every day come across 
orders of the lower courts which are not justified 
either in law or in fact and modify them or set them 
aside. That is one of the functions of the superior 
courts. Our legal system acknowledges the 
fallibility of the judges and hence provides for 
appeals and revisions. A judge tries to discharge 
his duties to the best of his capacity. While doing 
so, sometimes, he is likely to err. It is well said 
that a judge who has not committed an
error is 
yet to be born. And that applies to judges at all 
levels from the lowest to the highest. Sometimes, 
the difference in views of the higher and the lower 
courts is purely a result of a difference in 
approach and perception. On such occasions, 
the lower courts are not necessarily wrong and 
the higher courts always right. It has also to be 
remembered that the lower judicial officers 
E 
F 
G 
H

571 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A 
mostly work under a charged atmosphere and 
are constantly under a psychological pressure 
with all the contestants and their lawyers almost 
breathing down their necks -
more correctly up to their 
nostrils. They do not have the benefit of a detached 
B 
atmosphere of the higher courts to think coolly and 
decide patiently. Every error, however gross it may look, 
should not, therefore, be attributed to improper 
motive .... " 
C 9. Appellant has npt made out any sufficient ground for transfer 
and the request for transfer is bereft of merits. The High Court 
has rightly dismissed the transfer petition and same does not 
warrant any interference by this Court. 
The appeal is 
dismissed. 
D 
Devika Gujral 
Appeal allowed. 
E 
F 
G 
H