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DR. S.P. Ram v/s Central Bureau of Investigation, New Delhi & Others

    Criminal Misc. Transfer Application No. 392 of 2013

    Decided On, 27 February 2014

    At, High Court of Judicature at Allahabad


    For the Appellant: S.D. Kautilya, Yash Tandon, Rajjan Singh, Advocates. For the Respondent: Anurag Khanna, Sudhir Mehrotra, Yash Tandon, Advocates.

Judgment Text

Dharnidhar Jha, J.

1. The present petition seeks the transfer of Special Trial No. 3 of 2012, presently pending trial before Sri Shyam Lal, Special Judge, C.B.I., Ghaziabad from that Court to the C.B.I. Court at Lucknow. The reason for seeking the transfer has been stated in the affidavit sworn by Dr. Latika Viswash W/o. present petitioner. Dr. S.P. Ram, who is one of the accused of the above noted case. From perusal of the statements of facts made in the affidavit, what appears is that merely because the above named judge, who is presiding over the Court of Special Judge, C.B.I., Ghaziabad and who is seized with the trial of the above case, as per the notification issued by the Government of U.P. dated 28.8.2012 (Annexure-5), has passed certain orders rejecting the prayer for bail of the petitioner, that the petitioner pleads bias of the learned Judge towards the accused/petitioner.

2. The other ground was that there was already a Special Court created in Lucknow and the offence had also been committed at Lucknow, but the case has been allocated to Sri Shyam Lal by annexure 5, that's, the notification issued by the State Government, which was illegal.

3. Some facts leading to the filing of the present petition may be noticed.

4. Multi-crore scam was unearthed in the National Rural Health Mission (N.R.H.M. for short) programme which envisaged up-gradation of district hospitals in the State by appointing the State Government through its Health and Family Welfare Department as the nodal agency.

5. A public interest litigation filed before this Court resulted in a direction to hold preliminary inquiry by the C.B.I. and to lodge cases if need be whereafter, multiple F.I.R's were instituted against the then Minister, the Director General and all concerned, who had embezzled huge sum of money, out of the fund advanced by the Government of India through its Ministry of Health and Family Welfare. The petitioner was one of the accused and is presently languishing in prison.

6. It further appears that the C.B.I. sent letter dated 5.3.2012 to the Registrar General of the Court under the signature of its Director-Sri Amar Pratap Singh for assigning the cases under the N.R.H.M. scam to one Special Judge. The reason for such request was that some of the accused, who were named in the F.I.R., had committed suicide and one of the accused, who was the clerk working in the office of Chief Medical Officer, Lakhimpur kheri, namely, Mahendra Kumar Sharma had been murdered.

7. It was noted by the Director, C.B.I. in the above letter addressed to the High Court that two Chief Medical Officers were shot dead by unidentified assailants in separate incidents while the other, namely, Dr

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. Y.S. Sachan, who was arrested by the local police in connection with the scam, was found dead in Lucknow Jail on 22.6.2011. The third, namely, Sri Sunil Verma, Assistant Engineer in C. and D.S., U.P. Jal Nigam, one of the named accused in the F.I.R. registered by the C.B.I., had also committed suicide. In view of the above, the C.B.I., apprehended that there was genuine danger to the lives of suspects and witnesses. The focal point of the whole incident being Lucknow, there was a reasonable apprehension among the witnesses of possible threat from criminal elements if the investigation and trial proceedings involving them were allowed to take place in Lucknow. The C.B.I., further submitted that most of the witnesses and suspects preferred their examination to be conducted either in Delhi or in Ghaziabad and at all not in Lucknow. Most of the cases had been registered by the Central Unit of the C.B.I., in Delhi and the employees and Investigating Officers attended the Court proceedings at Ghaziabad. The C.B.I., was of the view that the witnesses and accused will be fearless and without any pressure in Ghaziabad and it would also be easier for the C.B.I., to monitor the investigation/trial if the cases were allocated to Ghaziabad.

8. Accordingly, the Hon'ble the Chief Justice of this Court was apprised of the above situation by the Registry of the Court, as appears from the note-sheet (Annexure-2) attached to the counter-affidavit filed by the High Court of Judicature at Allahabad and pursuant to the legal provisions and after considering them, the State Government of U.P. was requested to issue the necessary notification nominating Sri Shyam Lal-II Special Judge, Anti-Corruption, C.B.I. Ghaziabad to exclusively deal with all the cases involving the N.R.H.M.-Scam in U.P. It was how that the State Government of U.P. issued notification (Annexure 5) appointing Sri Shayam Lal, Special Judge, Anti-Corruption, C.B.I., Ghaziabad to try the cases under the N.R.H.M.-Scam in addition to those which had already been notified to be tried by him.

9. Sri S.D. Kautilya, Advocate appearing for the petitioner submitted that as per Chapter-XIII Cr.P.C., the trial of the case has to be held at the place where the offence was committed and it appears that the whole fraud was committed allegedly in Lucknow and as per section 181(4) Cr.P.C., the offence should have been "enquired into or tried by a Court within whose local jurisdiction" it was committed or, "any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for by the accused persons." It was further submitted that the Court of Special Judge was already there in Lucknow to try cases under the Prevention of Corruption Act. As such, it was untenable on the part of the High Court to recommend the allocation of cases under the N.H.R.M.-Scam to the said learned Judge at Ghaziabad.

10. While making these two submissions, Sri Kautilya was very much challenging the wisdom of the High Court in requesting the State Government through its letter (Annexure-IV) for issuing the appropriate notification.

11. The entire principles of transferring a case from one Court to the other is based on the old adage that justice should not only be done but it must also appear to be done. The idiom envisages that the Court which tries the case should demonstrate by the conduct of its proceeding that it was acting impartially and without any bias towards any of the contesting parties. But, simply because someone was pleading that he was not likely to have justice from any particular Judge or a Court, may not be sufficient in itself for getting an order of transfer. The principle is that if the apprehension of an accused or a party to the proceedings, that he may not get justice or that justice may not be done to him, then he shall have to place some concrete facts in support of his plea seeking transfer of his case from the Court where it was pending to another competent Court. If he does not have any concrete facts and it is merely an apprehension that justice may not be done in a given case, it may not be sufficient for the High Court or any Competent Court to transfer any case from one Court of competent jurisdiction to the other. What appears, thus, is that the Court has to see whether the apprehension was reasonable or not.

12. To judge the reasonableness of the apprehension, the state of mind of a person, who alleges apprehension of not getting justice may sometimes be relevant but that could never be sufficient in itself to direct the transfer of a case. It should not be a fanciful apprehension coming from a party to the proceeding. It should be somewhere around some concrete belief based on some objective facts either appearing from the conduct of the presiding Judge or from the circumstances which appear from the records of the trial that such apprehension could be concretized into some sort of belief, which could be convincing to a Court requested to transfer the case. For the above principle one may refer to Gurcharan Das Chadha Vs. State of Rajasthan, .

13. Some of the other principles regarding the jurisprudence of transferring a case may be the inconvenience of the party also in attending the Court proceeding. The parties to the proceedings, which may include the prosecutor in a criminal case also, may plead before a Court empowered to transfer criminal cases that the production of witnesses may not be convenient for it or it may incur heavy expenditure to the exchequer or sometimes it may also plead that the safety of the witnesses may be at stake. Likewise, an accused may also plead that his own safety could be at stake alongwith his convenience besides the expense which was likely to be incurred in traveling from his place of residence to the seat of the Court and in such cases also a Court may take a view that the case may be withdrawn from one Court and transferred to the other for trial. For the above principle, one may refer to Abdul Nazar Madani Vs. State of Tamil Nadu and Another, , which case also has discussed the principle of the apprehension of not getting fair and impartial inquiry or trial and has laid down that it has to be reasonable and not mere imagination, based upon conjectures and surmises.

14. The above principles on transfer of cases from one Criminal Court to the other subordinate to the High Court, in most of the part, get reflected in the existing provisions of section 407 Cr.P.C. which runs as under:--

407. Power of High Court to transfer cases and appeals--(1) Whenever it is made to appear to the High Court--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order--

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Session Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and hearing of the application.

(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the subordinate Court's power of remand u/s 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding on thousand rupees as it may consider proper in the circumstances of the case;

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government u/s 197.

15. What appears from the submissions and the contents of the petition was that there was no such pleading on behalf of the petitioner as regards the grounds for transferring Special Trial No. 3 of 2012 from the Court of Sri Shayam Lal, Special Judge, C.B.I., Ghaziabad to such a Court in Lucknow. Whatever apprehension has been expressed was based on an order of bail rejecting such prayer of the petitioner in R.C. No. 3A of 2012 dated 6.3.2013. On perusal of the said order rejecting prayer for bail what appears is that the learned Judge had considered the submissions of the Counsel for the parties and had perused the facts of the case and thereafter, had referred to many decisions of Supreme Court in various cases to pass his order dated 6.3.2013 to dismiss the prayer for bail. Many Courts pass such interlocutory orders on such prayers, but it is rare that an accused pleads bias on account of rejection of his prayer for bail. The Court has not expressed any opinion as to the conduct of the present petitioner or his complicity, neither has noticed some of the judgments only and the facts of the case to hold that there was no reason under the facts and circumstances of the case to grant the prayer. It could hardly give any reason for any accused to seek transfer of his case from a Trial Court and if such frivolous prayers are allowed to be maintained then no case could be brought to a conclusion.

16. In addition to the above, the submission of Sri Kautilya that section 181 Cr.P.C. required the trial to be conducted and concluded in Lucknow instead of at Ghaziabad, is very much answered by the judgment which was filed by him before me. Sri Kautilya has placed reliance upon CBI, A.H.D., Patna v. Brij Bhushan Prasad and others 2001 (43) ACC 1026 (SC), with R.K. Rana v. C.B.I. Patna. The above contention appears considered by the Apex Court in the above case and it has categorically been answered in paragraphs 39, 40 and 41. As may appear from the discussions made in those paragraphs it was indeed held that as per section 180 or 181 Cr.P.C. the place of trial could be the place where the offence was, indeed, committed. But one has to consider that proposition of law in the light of section 4 of the Cr.P.C. which was also noticed by the Apex Court which reads as under:--

4. Trial of offences under the Indian Penal Code and other laws.--(1) all offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise deal with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise deal with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

17. What may appear from the very consideration of section 4(2) Cr.P.C. is that the general principle regarding investigation or inquiry into or trial of offences is that it has to be done as per the provision of the Cr.P.C., but if there was any enactment for the time being in force regulating the manner or place of investigation, inquiring into or trying or otherwise dealing with such offences, then the provisions of the Cr.P.C. may not be followed. This part of section 4 which eliminates the application of the provisions of the Cr.P.C. in investigation, inquiry or trial is further restricted, by the provisions of section 5 Cr.P.C., which reads as under:

5. Saving--Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

18. As per section 5, unless the Cr.P.C. had specially provided for the non-application of the provisions of some special statute, the provisions of that special statute or local law which may be for the time being in force creating any special jurisdiction or conferring any special power or prescribing any special form or procedure, shall not be ousted or excepted by the Cr.P.C. In other words the special law and the procedure prescribed therein for the enquiry or trial of offences or cases shall have the over-riding effect over the general provision of Cr.P.C., which principle is based upon the old adage that special law has precedence over general law. Thus, if there is some special law having special provisions creating Court to try any offence as per procedure prescribed by it then, as appears from the twin reading of sections 4 and 5 Cr.P.C., the general provisions of the Cr.P.C. is not applicable. The Prevention of Corruption Act is a special law and as per the old adages Generalia specialibus non derogant (Special Provisions must prevail over general provision), the special provisions of the P.C. Act has to prevail over the general provisions of the Cr.P.C. if there are provisions in the P.C. Act regarding creation of jurisdiction or vesting of power to try an offence in a Special Judge.

19. Question, as such, could be as to is there any special provision in the Prevention of Corruption Act, 1988 (P.C. Act for short) creating and vesting jurisdiction in the Special Judge or in other words, into the special Court for trial of offences under that particular Act which is contrary to the provisions of the Cr.P.C. For answering the above question one has always to consider the provisions of Chapter-II of the P.C. Act which consists of only four sections, that's, sections 3 to 6 of the said Act.

20. Section 3 empowers the Central Government or the State Government to appoint as many special Judges as may be necessary by notification in the official gazette for such area or areas or for such case or group of cases which has to be specified in the notification, to try an offence punishable under the P.C. Act and any conspiracy to commit or any attempt to commit offence or any abetment of any of the offences made punishable under the Act. Sub-section (2) to section 3 lays down the qualification of a person for being appointed as the Special Judge under the Act. As per this provision, for being appointed as a Special Judge, a person has to be a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. Section 4 eliminates the application of the provisions of the Cr.P.C. as regards the jurisdiction of a Court or in other words, the place where the trial of cases is to be held by a Special Judge appointed u/s 3 of the P.C. Act and lays down by section 4(2) that the Special Judge may try an offence committed in an area or he may try a case for the trial of which he has specially been appointed and if in case of there being more Special Judges than one for a particular area, then any offence specified to be tried by the Special Judge u/s 3(1) of the P.C. Act, may be tried by him as per the terms of notification issued in that behalf. Thus, what appears is that while the PC. Act also lays down the area-wise jurisdiction for trial of a case, it further lays down that the appointment of a Special Judge may also be for a case or for a group of cases as appears from section 3(1) and, again, if there are many Special Judges then any of such Special Judges may be assigned any particular case or group of cases irrespective of the area in which the offence has been committed. Thus, the provisions of section 180 or 181 Cr.P.C. is made completely inapplicable to the trial of cases under the P.C. Act as also that of any other offence made punishable by any other Act. The creation of the Court of Special Judge to try a case under the P.C. Act has to be on three considerations. It may be for a particular area or it may be for many areas. Likewise, it may be for a particular case and at the same time, the Court may be constituted for trying a particular group of cases. This mode of creation of Courts of Special Judge to try an offence as per the PC Act is completely inconsistent with the provisions of the Cr.P.C. and, as has just been noted after considering the provisions of sections 4 and 5 of the Cr.P.C., this inconsistency of the provisions of sections 3 and 4 of P.C. Act with the general provisions of the Cr.P.C. contained in its Chapter XIII, makes it utterly necessary that while creating the Court of Special Judge and to vest the power in him to try a case under the P.C. Act, the consideration only has to be of sections 3 and 4 of the P.C. Act and of no other provision of any Act or the Cr.P.C. It may be comprehended more clearly by noting that even if a Special Judge has been appointed, say for Lucknow area, he may be assigned the cases of Ghaziabad area for being tried by him. Reverse may be the case as well. Likewise any Special Judge might have been appointed to try, for example, the Ghaziabad, G.P.F. Scam Cases but he may also be vested with the power to try the cases of N.R.H.M. Scam. Not only that a particular Judge might be assigned the duty of trying general cases of corruption in respect of acts of corruption or criminal misconduct not covering any particular scam or group of scams, and in spite of that he may be vested with the power to try any particular case or group of cases. The provisions of sections 3 and 4 of the P.C. Act makes it elaborately clear that the State Government may not only appoint such Special Judge, rather even if there are Special Judges already in place, any of them may be vested with the power of trying any group of cases. As such, the submission of Sri Kautilya that the provisions of Chapter XIII of the Cr.P.C. appear violated does not have any merit and appears completely hollow and fit to be rejected.

21. There is another way round to look at the arguments of Sri Kautilya. In spite of the fact that I have rejected the submissions of Sri Kautilya on the jurisdictional aspect of the present petition, still considering for the sake of argument that there could be some merit in his contention, the very provision of section 407, which is the repository of power of the High Court to transfer cases and appeals, by virtue of section 1(i) makes it abundantly clear that even if the Judge did not have the power to try the case, but if he is competent to try it, it would be without the jurisdiction of the Court to transfer the case from one Court of the Special Judge to the other Judge. I must make it very clear that this provision is also not applicable because it was not a case of transfer, rather it was a case of issuance of a notification in the light of sections 3 and 4 of the P.C. Act vesting powers in a particular Special Judge to try a group of cases which competence always lies with the State Government and which has always to act in meaningful consultation with the High Court in such matters. The transfer application as such on the ground that it was a wrong issuance of notification appears completely falling short of the provisions of sections 3 and 4, P.C. Act and as such, the notification issued by the State Government which has been made the basis for filing the present transfer petition could not be scrutinised by this Court under any of the provisions of the Cr.P.C., because it may be an issue to be considered separately under a different class of litigation. However, I must hasten to add that even if assuming that this Court had the power to go into the executive action of the State of U.P. in issuing the notification in question (Annexure-5), it could not transgress the recognized principles of judicial review of administrative actions which lays down that an action could not be scrutinised; what has been to be scrutinised is the basis and ground upon which such action has been made by the executive and if the Court would have found that there was a lack of competence or would have found that the administrative action smacked of arbitrariness or was beset with mala fide or was falling short of the principles of natural justice, then only it would have been an issue to be considered by the Court. Here the competence lies with the State Government and the competence lies through an appropriate and valid statute and the action appears fully covered by the four walls of sections 3 and 4 of the P.C. Act. In that view also, this transfer petition appears completely out of the statute book and against the provisions of law.

22. The last contention which I want to scrutinise was that before issuing the notification in question and just after the drawl of the F.I.Rs., the same Court was receiving the copies thereof u/s 157 Cr.P.C. and was carrying out the interlocutory proceedings during the course of investigation. It was contended that it was much, much later that the notification empowering Sri Shyam Lal to try the group of cases arising out of N.R.H.M.-Scam was issued. I want to point out that the powers of the Central or the State Government to appoint the Special Judge is only for the trial of cases. Investigating or enquiry into any such offence which are to be triable by the Special Judge by virtue of sections 3 and 4 of the P.C. Act is not the subject matter to be specified by issuing a notification in that behalf. For those matters the general provisions of the Cr.P.C. are applicable and it is a long settled principle of law that prior to the laying down the charge-sheet or the final report, as the case may be, there is no judicial proceedings as per the definition of the term appearing in section 2(i) Cr.P.C. The case for trial appears only when an order of cognizance, issuing summons or any other process u/s 204 of the Cr.P.C. is passed. The trial starts by framing of charges and in a case of trial by the Special Judge under the P.C. Act, it has to be held as per Chapter XIX Cr.P.C. As such, it becomes immaterial as to whom F.I.Rs. of the case had been sent to in compliance of the provisions of Chapter XII Cr.P.C. which is headed "Information to the police and their power to investigate". Before the stage of laying down the charge-sheet, the proceeding is merely a proceeding and is never a "judicial proceeding" and mere is no meaning as to who is receiving the copy of the F.I.R. in compliance with the provisions of section 157 Cr.P.C. and, as such, if there was no vesting of any power or there was no notification as per the provisions of sections 3 and 4 of the Cr.P.C., in my considered view, the same does not have any relevance. Thus, the submission of Sri Kautilya to that extent also appears meritless. In the light of the discussions made above with reference to the relevant provisions of the P.C. Act and Cr.P.C. and the settled principles of law, it appears that the transfer petition was completely frivolous and meritless and the same is dismissed.