Jatinderveer Arora vs State Of Punjab on 25 November, 2020


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Supreme Court of India

Jatinderveer Arora vs State Of Punjab on 25 November, 2020

Author: Hrishikesh Roy

Bench: Sanjay Kishan Kaul, Hrishikesh Roy

                                                                         [REPORTABLE]
                                 IN THE SUPREME COURT OF INDIA
                                 CRIMINAL ORIGINAL JURISDICTION
                          TRANSFER PETITION (CRIMINAL) NO. 452 OF 2019

          Jatinderveer Arora & Ors.                             Petitioners



                                                Versus

          State of Punjab                                       Respondent
                                                WITH
                          TRANSFER PETITION (CRIMINAL) NO. 459 OF 2019
                          TRANSFER PETITION (CRIMINAL) NO. 458 OF 2019
                          TRANSFER PETITION (CRIMINAL) NO. 461 OF 2019
                          TRANSFER PETITION (CRIMINAL) NO. 460 OF 2019
                          TRANSFER PETITION (CRIMINAL) NO. 462 OF 2019


                                             JUDGMENT

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
Signature Not Verified
before the Courts at Bhatinda, Moga and
Digitally signed by
Anita Malhotra
Date: 2020.11.25
16:55:43 IST
Reason:

Faridkot districts to competent Court in Delhi or to

any nearby State, out of Punjab.

Page 1 of 17

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.

Page 2 of 17
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 their defence.

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.

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

Page 3 of 17
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

Page 4 of 17
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

Page 5 of 17
they are to be conducted within the State. According

to the petitioners, the situation in the State is

surcharged and non-conducive 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.

Page 6 of 17

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:

Page 7 of 17
Sl. Details of TP (Crl.) Case No. FIR Details Stage
No
.

1. TP(Crl.) No. 452/2019 CHI No.3/2019 FIR No.161/2015 dt. Charge
Jatinderveer Arora & Ors. Vs. 20.10.2015 NDOH: 21.09.2019
State of Punjab PS Dayalpura, Dist.-

Bathinda

2. TP(Crl.) No. 458/2019 CHI No.4/2019 FIR No.86/2016 dt. Charge
Baljit Singh & Ors. Vs. State of 21.06.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-

Bathinda

3. TP(Crl.) No. 459/2019 CHI No.84/2019 FIR No.79/2015 dt. Prosecution
Prithvi Singh & Ors. Vs. State of 04.11.2015 evidence
Punjab PS Samalsar, Dist.-Moga NDOH: 23.09.2019

4. TP(Crl.) No. 460/2019 CHI No.6/2019 FIR No.98/2016 dt. Charge
Baljit Singh & Ors. Vs. State of 03.07.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-

Bathinda

5. TP(Crl.) No. 461/2019 CHI No.5/2019 FIR No.89/2016 dt. Charge
Bajit Singh & Ors. Vs. State of 29.06.2016 NDOH: 21.09.2019
Punjab PS Dayalpura, Dist.-

Bathinda

6. TP(Crl.) No. 462/2019 SC No.67/2019 FIR No.89/2018 dt. Evidence
Sukhwinder Singh @ Sunny & 13.06.2018 NDOH: 09.10.2019
Ors. Vs. State of Punjab PS City Kotkapura, Dist.-

Faridkot

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

Page 8 of 17
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.

1 (1979) 4 SCC 167
2 (2000) 6 SCC 204

Page 9 of 17
State of Kerala3, Zahira 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
3 (2000) 7 SCC 129
4 (2004) 4 SCC 158
5 (2005) 8 SCC 771
6 (2009) 6 SCC 260
7 (2011) 1 SCC 307

Page 10 of 17
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

8 2020 SCC OnLine SC 845

Page 11 of 17
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.

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

Page 12 of 17
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

uptodate), 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
Page 13 of 17
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.

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

Page 14 of 17
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.

Page 15 of 17

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.

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
Page 16 of 17
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.

……………………………………………J.

[HRISHIKESH ROY]
NEW DELHI
NOVEMBER 25, 2020

Page 17 of 17



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