General Allegation Of 'Surcharged Atmosphere' Is Not Sufficient To Transfer Trial From One One Court To Another: Supreme Court

The Supreme Court has observed that a general allegation of surcharged atmosphere is not sufficient to transfer trial from one one Court to another.

"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.", Justice Hrishikesh Roy observed while dismissing transfer petition filed by Jatinderveer Arora and others 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.

Before the court, they contended 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. They contended that the situation in Bhatinda and other places is communally surcharged where, fair trial is a near impossibility.

Justice Roy noted that 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, the court noted. The judge observed:

"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."

Regarding the scope of the powers of the Court to transfer trial, the court said that 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. It said:

"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."

The court added that the convenience of all parties should be looked at and not just the party which is seeking transfer. While dismissing the petition, the judge further observed:

"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."

Case: Jatinderveer Arora vs. State of Punjab [TRANSFER PETITION (CRIMINAL) NO. 452 OF 2019]

Coram: Justice Hrishikesh Roy

Counsel: Sr. Adv Ranjit Kumar for petitioners, Sr. Adv Harin P Rawal for state

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Jatinderveer Arora