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SUPREME COURT REPORTS [2011] 10 S.C.R. Such Allegation Is Now

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SUPREME COURT REPORTS [2011] 10 S.C.R. Such Allegation Is Now [2011] 10 S.C.R. 1 2 SUPREME COURT REPORTS [2011] 10 S.C.R. JAHID SHAIKH & ORS. A A such allegation is now more speculative than real, v. nevertheless in order to dispel the apprehension of the STATE OF GUJARAT & ANR. petitioners, liberty given to them that in the event their (TRANSFER PETITION (CRL) NO.55 OF 2010) apprehension are proved to be real during the course of the trial, they will be entitled to move afresh before Supreme Court JULY 6, 2011 B B for the relief sought for in the present Transfer Petition. [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] FIRs were lodged with different Police Stations in the State of Gujarat in connection with the bomb blasts that Code of Criminal Procedure, 1973 – s.406 – Bomb occurred in 2008 in the cities of Ahmedabad and Surat. blasts – Sessions Case pending before the Special Judge, The present Transfer Petition was filed under Section 406 Ahmedabad – Transfer petition – Prayer for transfer of the C C of CrPC for transfer of Sessions Case arising out of said Sessions Case for trial outside the State of Gujarat on ground FIRs and pending before the Special Judge, Ahmedabad, of bias and vitiated communal atmosphere – Apprehension for trial outside the State of Gujarat on ground of bias and of the accused of being denied a free and fair trial within the vitiated communal atmosphere. State of Gujarat – Held: Absence of a congenial atmosphere for fair and impartial trial is a good ground for transfer of a D D In support of the Transfer Petition, it was inter alia case out of a State – However, such a ground, cannot be the submitted that the local police authorities, jail authorities only aspect to be considered – In the instant case, the and the public prosecutor had conducted themselves in offences with which the accused have been charged are of a a manner which reflected total bias and prejudice against very serious nature, but the communally surcharged the accused and the same created more than a atmosphere which existed at the time of the alleged incidents, E E reasonable apprehension in their mind that they would has settled down considerably and is no longer as volatile as not get a fair and free trial in the State of Gujarat; that it was previously – Also, the Presiding Officers against whom charges were framed against the accused without bias had been alleged, will no longer be in charge of the supplying them with the essential documents required to proceedings of the trial – On the other hand, in case the be supplied under Section 207 of Cr.P.C.; that most of the Sessions Trial is transferred outside the State of Gujarat for F F accused did not have access to all the police papers at trial, the prosecution will have to arrange for production of its the time of framing of charges against them; that those witnesses, who are large in number, to any venue that may favoured with copies of the police papers were unable to be designated outside the State of Gujarat and prejudice may understand the same, as they were in Gujarati- a language be caused to the prosecution in presenting its case – Case not known to most of the accused, most of them being for transfer of trial outside the State of Gujarat is based on from outside the State of Gujarat; that the counsel for the G G certain incidents which had occurred in the past – The main accused were not permitted to meet their clients even for ground on which the Petitioners sought transfer is an 10 minutes in their Court chambers, without the police apprehension that communal feelings may, once again, raise being present; that several affidavits had been filed by its ugly head and permeate the proceedings of the trial if it is the relatives of the accused which revealed the severe conducted by the Special Judge, Ahmedabad – However, physical torture inflicted on the accused which were 1 H H JAHID SHAIKH & ORS. v. STATE OF GUJARAT & 3 4 SUPREME COURT REPORTS [2011] 10 S.C.R. ANR. supported by medical reports of doctors who examined A A could no longer be justified and were liable to be rejected; the victims, but despite such evidence, the trial court did that even the allegation of torture in custody was not not order an independent probe into the incident; that in proved to the satisfaction of the Court; and that all the the event local communal feelings, which are borne out allegations made by the Petitioners against the from the manner in which the accused were treated by Respondents were entirely false and merited rejection. the police, jail staff and the Courts are such that they B B create an atmosphere which is not conducive to the Disposing of the Transfer Petition, the Court holding of a fair trial, the cases should be transferred to HELD:1.1. Apparently, at the initial stages of the a neutral location in the interest of justice and finally that investigation and filing of charge-sheets some amount of in the circumstances indicated, it was only just and bias could well have been detected. However, once the proper that the Transfer Petition be allowed and that C C matter had gone out of the hands of the Magistrate Sessions Case pending before the Special Judge, concerned, no further bias could be attributed to him. Ahmedabad, be transferred outside the State of Gujarat Similarly, the allegation of bias against the District & for trial. Sessions Judge was no longer available since the The State of Gujarat and the Inspector General of incumbent had been elevated as a Judge of the High Prisons opposed the Transfer Petition inter alia D D Court and the trial will be conducted by another Judge. contending that a few orders, even if held to be incorrect, [Para 16] [19-C-D] could not be a ground for transferring the entire 1.2. However, the manner in which the charges had prosecution out of the State of Gujarat as that would lead been framed, without giving the Petitioners a meaningful to various difficulties for the prosecution in producing opportunity of meeting the allegations made against them witnesses at the time of trial; that there were a large E E in the charge-sheet, will ultimately have a direct bearing number of witnesses in respect of the cases relating to on the trial itself. The duty of the Sessions Court to Ahmedabad and Surat and it would be impossible for supply copies of the charge-sheet and all the relevant such a large number of witnesses to be produced before documents relied upon by the prosecution under a Court outside the State of Gujarat for giving evidence Sections 207 and 208 Cr.P.C. is not an empty formality before a Court where the language used was not Gujarati. F F and has to be complied with strictly so that the accused It was further contended that the allegation of bias made is not prejudiced in his defence even at the stage of against the Magistrate or Sessions Judge was no longer framing of charge. The fact that many of the accused relevant since the matter had already been committed by persons were not provided with copies of the charge- the Magistrate to the Court of Sessions while the sheet and the other relevant documents, as indicated in Sessions Judge had since been elevated as a Judge of G G Sections 207 and 208 Cr.P.C., seriously affects the right the Gujarat High Court and the trial would be conducted of an accused to a free and fair trial. In the instant case, by a Judge other than the said Judge against whom the in addition to the above, it has also to be kept in mind that allegation of bias had been made; that in the changed most of the accused persons in this case are from circumstances the arguments advanced in favour of outside the State of Gujarat and are not, therefore, in a transfer of the Sessions Case outside the State of Gujarat H H position to understand the documents relied upon by the JAHID SHAIKH & ORS. v. STATE OF GUJARAT & 5 6 SUPREME COURT REPORTS [2011] 10 S.C.R. ANR. police authorities as they were in Gujarati which most of A A 2003 (5) Suppl. SCR 610; Surendra Pratap Singh v. State the accused were unable to comprehend. Their demand of U.P. & Ors. (2010) 9 SCC 475: 2010 (11) SCR 909 – for translated copies of the documents met with no cited. response, and ultimately it was the very same documents in Gujarati, which were supplied to some of the accused 2. In the Indian criminal justice delivery system the balance tilts in favour of the accused in case of any doubt in some of the cases. [Para 17] [19-E-H; 20-A-B] B B in regard to the trial. The Courts have to ensure that an 1.3. The physical torture which was said to have been accused is afforded a free and fair trial where justice is inflicted on the Petitioners has come on record by way not only done, but seen to be done and in the process of affidavits to which there is no suitable explanation. the accused has to be given the benefit of any advantage Furthermore, the accused persons were not allowed to that may enure to his/her favour during the trial. Article meet their lawyers without police presence, and as stated C C 21 of the Constitution enshrines and guarantees the by them, it is only natural that an accused in custody will precious right of life and liberty to a person, deprivable have second thoughts before making or reiterating only on following the procedure established by law in a allegations of torture against the very persons to whose fair trial, assured of the safety of the accused.
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