Umesh Kumar Sharma vs State Of Uttarakhand on 16 October, 2020
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Supreme Court of India
Umesh Kumar Sharma vs State Of Uttarakhand on 16 October, 2020
Author: Hrishikesh Roy
Bench: Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
[REPORTABLE] IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (CRL.) NOS. 534-536 OF 2019 Umesh Kumar Sharma Petitioner Versus State of Uttarakhand & Ors. Respondents JUDGMENT
Hrishikesh Roy, J.
1. The present 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 three criminal cases pending before
different courts in Dehradun to competent courts in
Signature Not Verified
Delhi
Digitally signed by
Anita Malhotra
or some other courts outside the State of
Date: 2020.10.16
20:20:12 IST
Reason:
Uttarakhand.
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2. Mr. Kapil Sibal, the learned Senior Counsel submits
that the petitioner apprehends threat to his life and
will be prejudiced in conducting his defense in the
courts at Dehradun. The basic premise for such
apprehension is that on account of his work as an
investigative journalist against the Ruling
dispensation, the State is targeting the petitioner for
vindictive prosecution. It is pointed out that as a
journalist the petitioner has conducted sting
operations against the Chief Minister, his relatives
and associates in the State of Uttarakhand and
therefore he is being targeted for malicious
prosecution within the State. Moreover, besides the
three cases for which transfer is sought, many false
cases are foisted against the petitioner. As such, the
petitioner has a genuine and justifiable apprehension
that justice will not be done if the trials are
conducted in the courts within the State of
Uttarakhand. Therefore, those cases be transferred
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either to the courts in Delhi or to any other competent
courts, out of Uttarakhand.
3. Representing the State of Uttarakhand, Ms. Ruchira
Gupta, the learned counsel however submits that the
petitioner has failed to demonstrate how and in what
manner, he will be prejudiced if the trials continue in
the courts at Dehradun. According to her, the effort
of the petitioner is filed only to delay the
proceedings. Since investigation in all three cases
are concluded and charge sheet has been filed, the
apprehension of interference in the cases by the State
administration is contended to be wholly unfounded. The
government counsel then refers to the large number of
witnesses in the cases to point out that all of them
are residents of the State of Uttarakhand and therefore
it will be wholly irrational to transfer the trials
only on the basis of unsubstantiated apprehension by
the accused. Rebutting the contention that the
petitioner’s life is endangered within the State of
Uttarakhand, Ms Ruchira Gupta, the learned government
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counsel submits that these petitions are confined to
only three cases whereas the petitioner is accused in
several other cases pending in the State. Moreover, he
has himself filed five PILs in the year 2020 itself in
the High Court of Uttarakhand and this demonstrates
that the petitioner is conducting his affairs without
any impediment. The government advocate then submits
that the transfer of criminal cases should be rare and
exception since it impacts the credibility of the
Courts in Uttarakhand. Ms. Gupta submits that some of
the criminal cases against the petitioner have been
closed and the charges of extortion have been dropped.
This according to the learned government counsel would
clearly demonstrate the unbiased approach of the State
Government and the incorrect and bald allegation made
by the petitioner.
4. Representing the Complainant (Ayush Gaur) in the
FIR No.100/2018, Mr. Arvind Kumar Shukla, learned
counsel points out that his client during his service
with the petitioner learned that the petitioner is
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using the cover of journalism to grab property inasmuch
as none of the so-called sting operations carried out
by the petitioner has led to prosecution of anyone in
the State of Uttarakhand. The counsel submits that in
most of the 29 cases pending against the petitioner,
the primary charge is grabbing of property, and
accordingly, the counsel argues that the petitioner has
put forth a non-bonafide plea, in order to delay the
trial against him.
5. Insofar as the FIR No.100/2018 is concerned, the
Complainant’s lawyer points out that although the so
called investigation and sting operations were carried
out, the petitioner never had any intention of actually
exposing corruption in high places. The sting
operations commenced in January 2018, but there was no
attempt made by the petitioner to telecast the video
recordings and only then Complainant realized that the
video footage collected with secret camera will be used
by the petitioner to blackmail people. That is why on
10.8.2018, the Complainant who was one of the team
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members under the accused, was constrained to file the
FIR to expose the nefarious design of the petitioner.
The counsel then argues that the petitioner has failed
to indicate as to how the trial would be prejudiced if
they are to be conducted in the courts at Dehradun.
6. Mr. Anupam Lal Das, the learned Counsel appearing
for the co-accused in the FIR No.100/2018, however,
joins the petitioner in seeking transfer of the said
criminal case from the Courts in Uttarakhand.
7. Before proceeding any further, it would be
appropriate to refer to the list of cases pending
against the petitioner. Out of those cases, 17 cases
relate to the State of Uttarakhand, 4 cases are from
the State of Uttar Pradesh, 5 cases relate to the State
of West Bengal, 2 cases are from Delhi out of which one
is under investigation of the CBI, and another one at
Ranchi, Jharkhand.
8. Whether those cases are without merit or otherwise,
can be determined only through trial. However, the
numbers do suggest that the petitioner is not an
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ordinary person. It is also important to note that
the State has withdrawn prosecution in many cases filed
against the petitioner.
9. We also notice that one of the FIR that is being
sought to be transferred i.e. FIR No.16/2007 was filed
long back in 2007, when the present ruling dispensation
in the State of Uttarakhand, was nowhere in picture.
The contents of the allegations in the FIR No.16/2007
(registered on 9.2.2007) relates to a property dispute
involving the Will (dated 20.1.1995), of a family
member of the petitioner.
10. The next FIR No.128/2018 (registered on 1.11.2018)
relates to forcible land grabbing attempts, on the
basis of purportedly fake of documents.
11. Perhaps only the FIR 100/2018 (dated 10.8.2018) is
relatable to journalistic activity where the allegation
of a core member of the investigative journalism team
is that the petitioner in the guise of sting operation
(by video recording activities of powerful elements),
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does not air them and the concerned footages are
utilized for extraneous purposes.
12. Let us now examine the arguments of the
petitioner’s counsel about the petitioner being
targeted for malicious prosecution. To demonstrate this
aspect the learned senior counsel refers to the pro-
active steps taken by the public prosecutor to arrest
the petitioner by repeatedly approaching the magistrate
and then the High Court. Whether the public prosecutor
followed the legal process or it was a case of
overenthusiasm is an issue, which may not be very
relevant for the purpose of these transfer petitions.
This is because the incident happened nearly two years
back when the FIR 100/2018 was first registered. More
importantly the charge sheet is already filed and the
case is scheduled to go for trial in the Dehradun
Court. Therefore, the role of the State will now be
limited to prove the prosecution case before the Trial
Court. In such Court controlled proceeding, the
prosecution will have to marshal their evidence which
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is to be evaluated by the Presiding Officer of the
concerned Court. Therefore, the apprehension of
malicious prosecution because of the steps taken by the
public prosecutor against the petitioner in 2018, is
not acceptable. I may also add that our courts are
capable of deciding cases on the merits of the
evidence.
13. On the above aspect the following ratio will have
a bearing. In Sidhartha Vashisht Vs. State (NCT of
Delhi)1, Justice P. Sathasivam, as he then was, while
writing for the Division Bench discussed the role of
public prosecutor and conducting of investigation and
his observations in the present case, will be apposite.
“187. Therefore, a Public Prosecutor has wider
set of duties than to merely ensure that the
accused is punished, the duties of ensuring fair
play in the proceedings, all relevant facts are
brought before the court in order for the
determination of truth and justice for all the
parties including the victims. It must be noted
that these duties do not allow the Prosecutor to
be lax in any of his duties as against the
accused……………………………………………
1 (2010) 6 SCC 1
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198…………………………The law in relation to investigation
of offences and rights of an accused, in our
country, has developed with the passage of time.
On the one hand, power is vested in the
investigating officer to conduct the
investigation freely and transparently. Even the
courts do not normally have the right to
interfere with the investigation. It exclusively
falls in the domain of the investigating agency.
In exceptional cases the High Courts have
monitored the investigation but again within a
very limited scope. There, on the other a duty is
cast upon the Prosecutor to ensure that rights of
an accused are not infringed and he gets a fair
chance to put forward his defence so as to ensure
that a guilty does not go scot-free while an
innocent is not punished. Even in the might of
the State the rights of an accused cannot be
undermined, he must be tried in consonance with
the provisions of the constitutional mandate. The
cumulative effect of this constitutional
philosophy is that both the courts and the
investigating agency should operate in their own
independent fields while ensuring adherence to
basic rule of law.”
14. In Maneka Sanjay Gandhi vs. Rani Jethmalani2, for
the three Judge Bench, Justice V.R. Krishna Iyer
enunciated the law on transfer under Section 406 CrPC
with the following observation: –
“2. Assurance of a fair trial is the first
imperative of the dispensation of justice and
the central criterion for the court to2 (1979) 4 SCC 167
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consider when a motion for transfer is made
is not the hypersensitivity or relative
convenience of a party or easy availability
of legal services or like mini-grievances.
Something more substantial, more compelling,
more imperilling, from the point of view of
public justice and its attendant environment,
is necessitous if the Court is to exercise
its power of transfer. This is the cardinal
principle although the circumstances may be
myriad and vary from case to case. We have to
test the petitioner’s grounds on this
touchstone bearing in mind the rule that
normally the complainant has the right to
choose any court having jurisdiction and the
accused cannot dictate when- the case against
him should be tried. Even so, the process of
justice should not harass the parties and
from that angle the court may weigh the
circumstances.
3. One of the common circumstances alleged in
applications for transfer is the avoidance of
substantial prejudice to a party or witnesses
on account of logistics or like factors,
especially when an alternative venue will not
seriously handicap the complainant and will
mitigate the serious difficulties of the
accused. In the present case the petitioner
claims that both the parties reside in Delhi
and some formal witnesses belong to Delhi;
but the meat of the matter, in a case of
defamation is something different. The main
witnesses are those who speak to having read
the offending matter and other relevant
circumstances flowing therefrom. They belong
to Bombay in this case and the suggestion of
the petitioner’s counsel that Delhi readers
may be substitute witnesses and the
complainant may content herself with
examining such persons is too presumptuous
for serious consideration.”
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15. In Abdul Nazar Madan vs. State of T.N. & Anr. 3,
Justice R.P. Sethi speaking for the Division Bench
discussed the scope of power under Section 406 CrPC and
observed:-
“7. The purpose of the criminal trial is to
dispense fair and impartial justice
uninfluenced by extraneous considerations. When
it is shown that public confidence in the
fairness of a trial would be seriously
undermined, any party can seek the transfer of
a case within the State under Section 407 and
anywhere in the country under Section 406 CrPC.
The apprehension of not getting a fair and
impartial inquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. If it appears that
the dispensation of criminal justice is not
possible impartially and objectively and
without any bias, before any court or even at
any place, the appropriate court may transfer
the case to another court where it feels that
holding of fair and proper trial is conducive.
No universal or hard and fast rules can be
prescribed for deciding a transfer petition
which has always to be decided on the basis of
the facts of each case. Convenience of the
parties including the witnesses to be produced
at the trial is also a relevant consideration
3 (2000) 6 SCC 204
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for deciding the transfer petition. The
convenience of the parties does not necessarily
mean the convenience of the petitioners alone
who approached the court on misconceived
notions of apprehension. Convenience for the
purposes of transfer means the convenience of
the prosecution, other accused, the witnesses
and the larger interest of the society.”
16. In R. Balakrishna Pillai vs. State of Kerala4,
Justice M.B. Shah in another case for transfer under
Section 406 CrPC, made the following pertinent
observation:-
“9. ……. we would further state that in this
country there is complete separation of the
judiciary from the executive and Judges are
not influenced in any manner either by the
propaganda or adverse publicity. Cases are
decided on the basis of the evidence available
on record and the law applicable. Granting
such application and transferring the appeal
from the High Court of Kerala to the High
Court of Karnataka would result in casting
unjustified aspersion on the Court having
jurisdiction to decide the appeal on the
assumption that its judicial verdict is
consciously or subconsciously affected by the
popular frenzy, official wrath or adverse
publicity, which is not the position qua the4 (2000) 7 SCC 129
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judicial administration in this country. We
would also mention that at the time of hearing
the learned counsel has not raised this
contention.
17. In Captain Amrinder Singh Vs. Prakash Singh Badal &
Ors.5, Justice P. Sathasivam, as he then was, speaking
for the three judge Bench, on the issue of transfer of
criminal cases, observed as follows: –
“48. The analysis of all the materials, the
transfer of the case as sought for, at this
stage, is not only against the interest of
prosecution but also against the interest of the
other accused persons, the prosecution witnesses
and the convenience of all concerned in the
matter.
**** **** **** **** **** **** **** ****
51. We have already pointed out that a mere
allegation that there is an apprehension that
justice will not be done in a given case alone
does not suffice. Considering the totality of
all the circumstances, we are of the opinion
that in a secular, democratic Government,
governed by the rule of law, the State of Punjab
is responsible for ensuring free, fair and
impartial trial to the accused, notwithstanding
5 (2009) 6 SCC 260Page 14 of 20
the nature of the accusations made against them.
In the case on hand, the apprehension
entertained by the petitioners cannot be
construed as reasonable one and the case cannot
be transferred on a mere allegation that there
is apprehension that justice will not be done.”
18. Let us now examine another precedent on transfer of
criminal cases. In Nahar Singh Yadav & Others vs. Union
of India & Ors.6, Justice D.K. Jain writing for the
three Judge Bench discussed the scope of transfer under
Section 406 CrPC in the following terms: –
“22. It is, however, the trite law that power
under Section 406 CrPC has to be construed
strictly and is to be exercised sparingly and
with great circumspection. It needs little
emphasis that a prayer for transfer should be
allowed only when there is a well-substantiated
apprehension that justice will not be dispensed
impartially, objectively and without any bias. In
the absence of any material demonstrating such
apprehension, this Court will not entertain
application for transfer of a trial, as any
transfer of trial from one State to another
implicitly reflects upon the credibility of not
only the entire State judiciary but also the
prosecuting agency, which would include the
Public Prosecutors as well.”6 (2011) 1 SCC 307
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19. On the same line is the decision in Harita Sunil
Parab vs. State(NCT of Delhi) & ors7, where Justice
Navin Sinha, enunciated the law on transfer
jurisdiction in the following terms:-
“8. The apprehension of not getting a fair and
impartial enquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. No universal or hard-
and-fast rule can be prescribed for deciding a
transfer petition, which will always have to be
decided on the facts of each case. Convenience of
a party may be one of the relevant considerations
but cannot override all other considerations such
as the availability of witnesses exclusively at
the original place, making it virtually
impossible to continue with the trial at the
place of transfer, and progress of which would
naturally be impeded for that reason at the
transferred place of trial. The convenience of
the parties does not mean the convenience of the
petitioner alone who approaches the court on
misconceived notions of apprehension. Convenience
for the purposes of transfer means the
convenience of the prosecution, other accused,
the witnesses and the larger interest of the
society. The charge-sheet in FIR No. 351 of 2016
reveals that of the 40 witnesses, the petitioner
alone is from Mumbai, two are from Ghaziabad, and
one is from Noida. The charge-sheet of FIR No.
1742 of 2016 is not on record. A reasonable
presumption can be drawn that the position would
be similar in the same also.”
7 (2018) 6 SCC 358
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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.
21. While assurance of a fair trial needs to be
respected, the plea for transfer of case should not be
entertained on mere apprehension of a hyper sensitive
person. In his pleadings and arguments, the petitioner
in my assessment has failed to demonstrate that because
of what he endured in 2018, it is not possible for the
courts in the state to dispense justice objectively and
without any bias. It can’t also be overlooked that the
petitioner is involved in several cases and this year
itself has generated few on his own in the state of
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Uttarakhand. Therefore, it is difficult to accept that
justice for the petitioner can only be ensured by
transfer of three cases mentioned in these petitions.
22. While considering a plea for transfer, the
convenience of parties would be a relevant
consideration. It can’t just be the convenience of the
petitioner but also of the Complainant, the Witnesses,
the Prosecution besides the larger issue of trial being
conducted under the jurisdictional Court. When relative
convenience and difficulties of all the parties
involved in the process are taken into account, it is
clear that the petitioner has failed to make out a
credible case for transfer of trial to alternative
venues outside the State.
23. The learned senior counsel for the petitioner made
it clear that the petitioner is not pointing any
fingers towards the courts and his apprehension is
based only on the action taken by the State. The
transfer of trials from one state to another would
inevitably reflect on the credibility of the State’s
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judiciary and but for compelling factors and clear
situation of deprivation of fair justice, the transfer
power should not be invoked. This case is not perceived
to be one of those exceptional categories.
24. When the nature of the three cases are examined,
it is seen that two of the cases are property and Will
related matters. One of this case is pending for last
over a decade. Therefore, this court finds it difficult
to accept that the cases are on account of journalistic
activities of the petitioner. In fact the credibility
of the journalistic activity of the petitioner is
itself questioned, by a member of his sting operation
team, in the third case. In such circumstances, the
prosecution in the concerned three cases can’t prima
facie be said to be on account of malicious
prosecution.
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25. In view of the forgoing, these Transfer Petitions
are dismissed. However, it is made clear that the
observations in this judgment is only for disposal of
these petitions and should have no bearing for any
other purpose.
……………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
OCTOBER 16, 2020
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