The Supreme Court on Friday dismissed the plea of investigative journalist Umesh Kumar Sharma seeking transfer of three criminal cases pending against him to Delhi from Dehradun on the ground of being targeted by the BJP-led Uttarakhand government.
It was 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. The petitioner apprehended threat to his life and submitted that he would be prejudiced in conducting his defense in the courts at Dehradun.
"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", noted Justice Hrishikesh Roy.
In such circumstances, the bench was of the view that the prosecution in the concerned three cases can't prima facie be said to be on account of malicious prosecution.
At the outset, the bench referred to the list of cases pending against the petitioner, and noted that 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. "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 ordinary person", said the bench.
Justice Roy also stated that it is also important to note that the State has withdrawn prosecution in many cases filed against the petitioner.
The bench also noticed that one of the FIR that is being sought to be transferred 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 relates to a property dispute involving the Will (dated 20.1.1995), of a family member of the petitioner.
The next FIR (registered on 1.11.2018) relates to forcible land grabbing attempts, on the basis of purportedly fake of documents.
"Perhaps only the FIR 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), does not air them and the concerned footages are utilised for extraneous purposes", noted the bench.
The Single Judge examined the arguments of Senior Advocate Kapil Sibal about the petitioner being targeted for malicious prosecution, the bench noted the reference made to the pro- active steps taken by the public prosecutor to arrest the petitioner by repeatedly approaching the magistrate and then the High Court, in connection with the August 10, 2018 FIR.. "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 was first registered", noted the bench.
More importantly, the bench also reflected that 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 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", said the bench.
Appreciating several authorities in this context, the bench reiterated 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"
The bench observed that 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
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", remarked the bench.
Conceding that while considering a plea for transfer, the convenience of parties would be a relevant consideration, the bench added that 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", ruled the bench.
Justice Roy also recorded that the 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 judiciary and but for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked", held the bench, dismissing the transfer petitions, observing that this case is not perceived to be one of those exceptional categories