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Harita Sunil Parab Vs. State of NCT of Delhi and Ors. - (Supreme Court) (28 Mar 2018)

Apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises

MANU/SC/0305/2018

Criminal

The present application seeks transfer of FIR registered under Sections 354, 354A, 323, 506 and 509 of the Indian Penal Code, 1860 (IPC) and another FIR under Sections 379, 323, 376, 354, 506 and 420 of IPC registered on complaints lodged by the Petitioner against Respondent Nos. 2 to 4, to the Court of competent jurisdiction at Mumbai, Maharashtra. The Petitioner, who appears in person, submits that, she is a permanent resident of Mumbai and is a practicing Advocate before the Mumbai High Court. Her case was not being investigated by any police officer of New Delhi despite her written complaint to the Joint Commissioner of Police and meeting with the Commissioner of Police, Deputy Commissioner of Police and the Assistant Commissioner of Police. She fears that, investigation may not be done fairly. She has been receiving threats from the Accused persons and was finding it difficult to pursue matters in Delhi as her professional engagements in Mumbai were also suffering because of the same. The investigation in the FIRs is thus sought to the transferred to the Court of competent jurisdiction at Mumbai.

The rejoinder by the Petitioner does not dispute the institution of other FIRs by her at Delhi. The records reveal that, investigation has been completed in both the present FIRs which are the subject matter of transfer, and separate charge sheets have been filed before the Court of competent jurisdiction. If the Petitioner has any grievance with regard to the investigation, the remedy lies in filing an appropriate application under the Code of Criminal Procedure before the Court concerned, and any such application, if filed, has to be considered on its own merits by the concerned Court in accordance with law. Likewise, if the Petitioner faces or is apprehensive for her safety in pursuing her complaints at Delhi, sufficient remedies are available to her under the law. Any such application, if filed, before the concerned Court or the police, has to be dealt with on its own merits in accordance with law.

In Gurcharan Das Chadha v. State of Rajasthan, it was observed that, a case is transferred, if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A Petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer, if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that, justice should not only be done but it should be seen to be done. However, a mere allegation that, there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.

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. At this stage, the apprehensions voiced by the Petitioner of possible harm to her at Delhi are too nebulous. On her own pleadings, the Petitioner has been travelling from Mumbai to Delhi since long for professional reasons. The Apex Court is not satisfied that, the two cases are required to be transferred to the court of competent jurisdiction at Mumbai. The Transfer petitions are, therefore, rejected.

Relevant : Gurcharan Das Chadha v. State of Rajasthan, MANU/SC/0093/1966 : (1966) 2 SCR 678

Tags : INVESTIGATION   FAIR TRIAL   TRANSFER  

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