Umesh Kumar Sharma vs State Of Uttarakhand and Ors. - (Supreme Court) (16 Oct 2020)

Plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person

MANU/SC/0772/2020

Criminal

The present petitions are filed under Section 406 of the Code of Criminal Procedure, 1973 (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 or some other courts outside the State of Uttarakhand.

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. 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 either to the courts in Delhi or to any other competent courts, out of Uttarakhand.

Transfer power under Section 406 of the CrPC 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.

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 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 present petitions.

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.

When the nature of the three cases is 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, present 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. Transfer Petitions are dismissed.

Tags : APPREHENSION TRANSFER PLEA ENTITLEMENT