TaxTMI 
TaxTMI 
2012 (3) TMI 680
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.... at Delhi/New Delhi. Both these petitions are being disposed of by a common order, because the prayers made are identical and are based on the same grounds, arising out of the same factual background. 2. Before dealing with the grounds raised by the Petitioners, it is necessary to briefly record the sequence of events leading to the filing of the instant transfer petitions. The prosecution under reference pertains to the murder of Aarushi Talwar, daughter of the two Petitioners, namely, Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening 15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first information report registered at police station, Sector 20, Noida, alleging that their domestic help Hemraj had committed the murder of their daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the body of Hemraj was also found on the roof of the Petitioners' residence. Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On 27.5.2008, the Chief Judicial Magistrate, granted police custody of Dr. R....
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....ition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of 2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated 9.1.2012 is being extracted hereinbelow: We have heard Learned Counsel for the parties. It appears that pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68 of 2012 titled "Dr. Mrs. Nupur Talwar v. C.B.I. Delhi and Anr.", whereby this Hon'ble Court upheld the order dated 9.2.2011 of the Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01 of 2011 whereby cognizance was taken, the Petitioner herein would appear before the Special Judicial Magistrate (CBI), Ghaziabad on 4.2.2012 which, we understand, is the date fixed for hearing. It is also not in dispute that the Petitioner Dr. Rajesh Talwar is on bail since 2008 virtually by an order dated 11th July, 2008 and he also furnished bail bond pursuant to that order. In that view of the matter, we direct the Petitioner - Dr. Rajesh Talwar to remain on bail. It is understood that the Petitioner has already deposited his passport and the same is lying with the Court of the lea....
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....re Delhi/New Delhi based, and they too would not have to travel to Ghaziabad on each date of hearing. (v) Lastly, it was asserted, that a large number of witnesses would also have to be summoned from outside U.P. It was also pointed out, that these witnesses would have to unnecessarily travel to Ghaziabad. Just like the Petitioners, all outside witnesses would likewise face avoidable inconvenience, if the prayer made in the instant petition is accepted. 6. On the issue of personal security, Learned Counsel for the Petitioners contended, that when the Petitioners had gone to attend court proceedings at Ghaziabad on 25.1.2011, and whilst they were physically inside the court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious attack at the hands of one Utsav Sharma, with a cleaver knife. It was submitted, that Dr. Rajesh Talwar suffered grievous injuries and was rushed to undergo several reconstructive surgeries in the intensive care unit of the Indraprastha Apollo Hospital, New Delhi. While explaining the assault, it was pointed out, that Dr. Rajesh Talwar was given three blows with the meat cleaver causing a grievous injury on the right side of his....
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....s not unreal. Relying on the judgment rendered by this Court in Central Bureau of Investigation (CBI) v. Hopeson Ningshen (2010) 5 SCC 115, it was submitted, that in a case wherein the CBI itself felt that there was a real danger of the accused being physically attacked during the course of the trial, this Court came to be approached (by the CBI) for transfer of the venue of prosecution. The prayer made by the CBI was acceded to by this Court by observing, that there could be no quarrel, that there was a real possibility of a physical attack on the Respondent-accused so long as he was at Manipur. Yet again, it is emphasized by the Learned Counsel appearing on behalf of the Petitioners, that the present case stands on a far better footing, inasmuch as, a factual assault resulting in serious injuries has actually been suffered by Dr. Rajesh Talwar within the court premises at Ghaziabad. It is, therefore, contended, that the fear in the minds of the Petitioners, is not imaginary. The fear in the minds of the Petitioners, is very real and bonafide. In order to support the prayer of the Petitioners on the facts delineated hereinabove, Learned Counsel for the Petitioners placed reliance ....
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....had alleged, that they were not likely to get justice, as it appeared to them, that the Ghaziabad court was proceeding with the matter with a pre-determined mind. The cause of the Petitioners instant impression (as per the pleadings), emerges from an application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of the Code of Criminal Procedure. In the aforesaid application, Dr. Rajesh Talwar had sought exemption from personal appearance, on the ground that he had suffered a physical assault in the court premises on 25.1.2011, and had been advised bed rest. The Special Judicial Magistrate (CBI) Ghaziabad, had rejected the application for exemption, and issued bailable warrants against Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is concerned, she too had sought exemption from personal appearance on the ground, that she had to file an affidavit at Allahabad in a criminal revision petition, to assail the summoning order dated 9.2.2011(refer to paragraph 4 above). It is submitted, that the application filed by Dr. Mrs. Nupur Talwar was also declined. In the order dated 28.2.2011 the Special Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants again....
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.... the accused persons and thus, no privilege of hearing can be extended to the concerned advocate. A true translated copy of the order dated 21.1.2011 is annexed herewith and marked as Annexure A-2. 6. That faced with such a perilous situation the counsels did not have any option but to file an application before the Ld. Magistrate for taking appropriate actions and passing necessary directions in the matter. The said application is still pending. A photocopy of certified copy of the said application dated 4.2.2012 is annexed herewith and marked as Annexure A-3. It is also necessary to extract hereunder the application dated 4.2.2012 (appended as Annexure A-3 to the affidavit dated 24.2.2012) of Shri Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar: Sir, It is most respectfully submitted that in the above noted case the applicants counsels appear before the Hon'ble Court today to move application in the light of order passed by Hon'ble Supreme Court in Transfer Petition. The counsel for applicants were restrained by some other Advocates who have no concern with the case during the course of their submission. This happened e....
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....reas, 61 witnesses are from Delhi or from outside U.P. of the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees of the Central Forensic Science Laboratory or the All India Institute of Medical Sciences, New Delhi; 6 witnesses are from telephone companies, 20 witnesses have been examined earlier out of which some are relations of the Petitioners themselves; and of the remaining two witnesses one is from Punjab and the other is from Haryana. It is also submitted, that none of the 61 witnesses, to be produced from Delhi or from outside U.P., have expressed inconvenience to depose before the Special Judicial Magistrate (CBI), Ghaziabad, U.P. It is contended, that the distance between Noida and Ghaziabad, as also, between Noida and Delhi depicted in the submissions advanced by the Learned Counsel for the Petitioners are irrelevant. It is submitted, that the issue of jurisdiction is never determined on the basis of distance(s), but is based on the territorial jurisdiction of the court within which an offence has been committed. It is submitted that Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending court proceedings at Ghaziabad since 2008, i.e., for th....
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.... entire court-premises at Ghaziabad, whereupon, security/police personnel have been deployed to prevent any similar untoward incident in future. It was also brought to our notice, from the counter affidavit filed by the CBI, that the venue of the proceedings relating to the Petitioners, has been shifted to a new building, which has a proper boundary wall on all sides, with only one small entrance. The counter affidavit also records an assurance, that as and when the case of the Petitioners will be fixed for hearing, proper police force will be deployed by the local administration, to ensure safety and security of the Petitioners. It is therefore the contention of the learned Senior Counsel representing the CBI, duly supported by the Learned Counsel for the State of Uttar Pradesh, that all possible care will be taken, for the safety and welfare of the Petitioners. 12. Even though Learned Counsel representing the Petitioners did not canvass the third ground (see paragraph 7 hereinabove) during the course of hearing, yet Learned Counsel for the Respondents had expressly drawn our attention to the same. The purpose of inviting our attention to the third ground was to demonstrate, th....
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....itioners from advancing their submission, has not been disclosed. In the application allegedly filed on 4.2.2012 (appended as Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the counsel who restrained the counsel representing the Petitioners, from making his submissions has also not been disclosed. Accordingly, it is asserted that the allegations made in the last submission being vague cannot be relied upon to accept the prayer of the Petitioners for transfer of proceedings under Section 406 of the Code of Criminal Procedure. 14. We have noticed hereinabove the grounds of challenge canvassed at the hands of the learned Counsel for the Petitioners, as also, the response thereto at the hands of the Learned Counsel representing the Respondents. In so far as the issue of transfer of criminal proceedings from one court to another under Section 406 of the Code of Criminal Procedure is concerned, it would be in the fitness of matters to examine the parameters laid down by this Court for transfer of proceedings. In this behalf reference may, first of all, be made to the decision rendered in Sri Jayendra Saraswathy Swamigal (II) Tamil Nadu v. State of Tamil Nadu (....
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....ed have been put under great threat on account of lodging of false and fabricated criminal cases against them and a situation has been created wherein they may not be in a position to defend the accused properly. This will also have a general effect as other lawyers would feel hesitant to conduct the case on behalf of the accused. (vi) The Mutt and other associated and connected trusts have 183 accounts in banks, which were all frozen by SIT resulting in paralysing the religious and other activities of the Mutt and other connected bodies. (vii) Criminal cases have been lodged against some leading journalists of the country and other prominent personalities, who had written articles criticising the arrest of the Petitioner, which not only violates right of free speech but also creates an atmosphere of threat against anyone daring to speak or write in favour of the accused and thus the accused seriously apprehend that they would not get a fair trial in the State of Tamil Nadu. (viii) Shri Prem Kumar, who is heading the Special Investigation Team, is not a fair and upright officer and superior courts have passed strictures against him sever....
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....y of defending his client in a fearless manner. A senior and respected counsel is bound to get unnerved if an insinuation is made against him in court that he approached the wife of a witness for not giving evidence against the accused in the court. From the material placed before us we are prima facie satisfied that a situation has arisen in the present case wherein the lawyers engaged by the Petitioner and other co-accused cannot perform their professional duty in a proper and dignified manner on account of various hurdles created by the State machinery. The lawyers would be more concerned with shielding their own reputation or their liberty rather than cross- examining the prosecution witnesses for eliciting the truth. The constant fear of not causing any annoyance to the prosecution witnesses specially those of the Police Department would loom large over their mind vitally affecting the defence of the accused. Passing of the detention order against 16 co-accused soon after grant of bail to the Petitioner by this Court on 10-1-2005, which order could be of some support in seeking parity or otherwise for securing bail in the present murder case, is a clear pointer to the fact tha....
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....e no quarrel that there exists a real possibility of a physical attack on the Respondent-accused as long as he is in Manipur. It was precisely because of this consideration that the Respondent-accused is being held in custody at a distant location in Delhi. Furthermore, conducting the trial in Manipur could also reasonably lead to more friction in the State of Manipur which in turn could affect the trial proceedings themselves. 19. We must especially take note of the fact that the killings took place in a region where opinions are sharply divided on the justness of the causes espoused by NSCN(IM) and that the Respondent-accused is a member of the same organisation. This creates a risk of intimidation of the witnesses as well as undue prejudice seeping into the minds of those who may be involved in the legal proceedings in different capacities. 20. In this scenario, in our considered view it would be expedient in the ends of justice to conduct the trial in Delhi. We accordingly direct that the impugned cases be transferred from the Court of the Chief Judicial Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a judicial officer of the rank....
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....ore which the trial may be conducted. (Emphasis is ours) The issue in hand was also examined by this Court in Nahar Singh Yadav v. Union of India (2011) 1 SCC 307. Relevant extract including the parameters delineated by this Court which ought to be kept in mind while considering an application for transfer and the consideration of the factual matrix involved in the controversy dealt with are being extracted hereunder: 21. Reverting to the main issue, a true and fair trial is sine qua non of Article 21 of the Constitution, which declares that: 21. Protection of life and personal liberty.-No person shall be deprived of his 'life' or 'personal liberty' except according to procedure established by law. It needs no Emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, ....
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....n; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice. 30. Having considered the rival claims of both the parties on the touchstone of the aforestated broad parameters, we are of the view that the apprehension entertained by CBI that the trial of the case at Ghaziabad may not be fair, resulting in miscarriage of justice, is misplaced and cannot be ac....
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....peditiously. (Emphasis is ours) The issue of transfer of proceedings under Section 406 of the Code of Criminal Procedure was examined by this Court in Vikas Kumar Roorkewal v. State of Uttarakhand (2011) 2 SCC 178, wherein this Court observed as under: 23. It is true that there must be reasonable apprehension on the part of the party to a case that justice may not be done and mere allegation that there is apprehension that justice will not be done cannot be the basis for transfer. However, there is no manner of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused only because the witnesses are threatened is made out by the Petitioner. 24. This Court, on various occasions, had opportunity to discuss the importance of fair trial in criminal justice system and various circumstances in which a trial can be transferred to dispense fair and impartial justice. It would be advantageous to notice a few decisions of this Court with regard to the scope of Section 406 of the Code of Criminal Procedure. XXX 29. From the averments made in the petition it is evident ....
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....me brush and denial of a proper opportunity at the stage of framing of charge, though serious, is not insurmountable. The accused have their remedies elsewhere and the prosecution still has to prove its case. 41. As mentioned earlier, the communally surcharged atmosphere which existed at the time of the alleged incidents, has settled down considerably and is no longer as volatile as it was previously. The Presiding Officers against whom bias had been alleged, will no longer be in charge of the proceedings of the trial. The conditions in Gujarat today are not exactly the same as they were at the time of the incidents, which would justify the shifting of the trial from the State of Gujarat. On the other hand, in case the sessions trial is transferred outside the State of Gujarat for trial, the prosecution will have to arrange for production of its witnesses, who are large in number, to any venue that may be designated outside the State of Gujarat. 42. At the present moment, the case for transfer of the trial outside the State of Gujarat is based on certain incidents which had occurred in the past and have finally led to the filing of charges against the ....
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....e check period i.e. 4-10-2005 and this is the period during which most of the properties were allegedly acquired by him and his family members. 12. We have already adverted to the fact that against the main accused Shri B.R. Meena, (IRs. 1977), Commissioner of Income Tax, Income Tax Appellate Tribunal, Mumbai, a case has been registered on 29-9-2005 under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for possession of assets in his own name and in the name of his family members to the extent of Rs. 43,29,394 which were disproportionate to his known sources of income and could not be satisfactorily accounted for. It further shows that Respondent 3, during the check period i.e. 1-41993 to 4-10-2005, acquired assets disproportionate to his known sources of income to the extent of Rs. 1,39,39,025. 13. The Petitioners have been charge-sheeted for commission of offences under Section 109 read with Section 193 Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for having actively aided and abetted Respondents 3 to 4 by fabricating false evidence through preparatio....
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....non-appearance of the accused in a criminal trial, we are loath to entertain the Petitioner's prayer for transfer. In a criminal proceeding, the right of the accused to a fair trial and a proper opportunity to defend himself cannot be ignored for the convenience of the complainant simply because she happens to be the estranged wife. (Emphasis is ours) From the two judgments, referred to hereinabove, it clearly emerges that inconvenience cannot be a valid basis for transfer of "criminal proceedings" from one court to another under Section 406 of the Code of Criminal Procedure. Be that as it may, we are of the view that the instant contention advanced at the hands of the Learned Counsel for the Petitioner is wholly frivolous. According to the factual position depicted by the learned Counsel for the Petitioners themselves, the distance between Noida and Ghaziabad is 35 kms. whereas the distance between Noida and Delhi is 17 kms. Based on a simple mathematical conclusion the distance between Delhi and Ghaziabad must be approximately 52 kms. (35+17=52). It is ununderstandable how a plea of inconvenience can be based to avoid travelling a distance of merely 52 kms. ....
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....mental disability. Such an attack cannot be deemed to have been aimed at disabling the Petitioners to defend themselves. The physical assault suffered by the Petitioner was clearly unrelated to their court-proceedings. In the aforesaid view of the matter, the incident relied upon by the Learned Counsel for the Petitioners to seek transfer of proceedings by invoking Section 406 of the Code of Criminal Procedure, is clearly misconceived. Even otherwise, the counter affidavit filed on behalf of the CBI is categorical on the issue in hand, to the effect that the Sessions Judge, Ghaziabad, has personally reviewed the security system in the entire court-premises, security/police personnel have been deployed so that no untoward incident occurs in future. Additionally, the venue of the court-proceedings of the Petitioners has been shifted to a new building which has proper boundary walls on all sides, with only one small entrance. The building where the Petitioners are required to attend the court proceedings is therefore totally safe. In the counter affidavit filed by the CBI it has been expressed, that whenever the case of the Petitioners' is to be heard, adequate police force would ....
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....ind no merit in the prayer for transfer of proceedings from Ghaziabad to Delhi/New Delhi even on the ground of personal security. 17. The third ground raised by the Petitioners, noticed in paragraph 7 hereinabove, needs no adjudication at our hands on account of the fact that the same was not pressed by the Learned Counsel representing the Petitioners during the course of hearing. The details depicting the third ground have been noticed only because the learned Senior Counsel representing the Respondents insisted on inviting our attention to the fact that the Petitioners had expressed baseless insinuations against the presiding officer of the court. Based on certain insinuations the Petitioners had asserted, that they were not likely to get justice, as the concerned court was proceeding in the matter with a pre-determined mind. The insinuations levelled by the Petitioners are based on an order passed by the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011. Learned Counsel for the Petitioners advisedly refrained from pressing the instant ground during the course of hearing. Even raising such a ground in the pleadings, to state the least, can certainly be termed ....