TaxTMI 
TaxTMI 
2009 (5) TMI 1030
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....n Act, 1988 pending in the Court of Special Judge, Ropar to any other suitable Court of competent jurisdiction in New Delhi. 2. Capt. Amarinder Singh is the petitioner in Transfer Petition No. 235 of 2008. M/s Jeet Mohinder Singh, Sukhpal Singh, Gurpreet Singh and Mangat Ram Bansal who are all members of Legislative Assembly are the petitioners in Transfer Petition No. 179 of 2008. Respondent Nos. 1 to 10 are the accused in the case relating to FIR No. 15 and 11th Respondent is the State of Punjab. Since, facts are common in both the transfer petitions, we propose to dispose of the same by this common judgment. For convenience, reference to parties will be as arrayed in Transfer Petition No. 235 of 2008. 3. Brief facts, as stated in the Transfer Petition No. 235 of 2008, are as follows: a) FIR No. 15 dated 24.06.2003 filed under Sections 420, 467, 468, 471 and 120B of Indian Penal Code, 1860 read with Sections 7, 8, 9, 10, 13(1) and (2) of the Prevention of Corruption Act, 1988 was registered at the Police Station Vigilance Bureau, Flying Squad, Mohali on the complaint of one Mr. Balwant Singh son of Mr. Sukhdev Singh. This FIR was filed for offences committed by Mr.....
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....e issue of law relating to sanction for prosecution in such cases, several Special Leave Petitions were filed before this Court by various Politicians across the country in separate matters relating to the jurisdiction of Special Courts dealing with such allegations of corruption, the cognizance and trial of such offences relating to corruption and other issues as to the requirement of sanction for prosecution. The entire batch of matters and all issues on law were decided by this Court by a detailed judgment dated 06.12.2006 in the matter of Prakash Singh Badal and Ors. v. State of Punjab and Ors. AIR 2007 SC 1274 and the said special leave petitions filed by the accused came to be dismissed by this Court. As a natural outcome of this dismissal, the trial before the Special Court, which had been suspended all this while was to proceed. f) Elections were to take place in the month of February, 2007 in the State of Punjab. Hence, the Accused (who were also contesting election) sought time before the learned Special Judge and requested that the trial be taken up after the election is over and the result is announced. Thereafter, Accused No. 1 assumed power and position as th....
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....t Singh Deol had closed his arguments, an application was moved by the Public Prosecutor Mr. Pardeep Mehta under Section 173(8) of the Code of Criminal Procedure, 1973 seeking permission to conduct "further investigation". While strangely such an application was made after the Special Public Prosecutor had concluded his arguments, it was further made evident that the Prosecution was under the pressure of, inter alia, Accused No. 1 who was now the Chief Minister of Punjab to seek a medium through which the case of the prosecution against the Accused could be weakened. This would naturally be under the garb of such "further investigation" which had now become "necessary". k) Again when the matter came up for hearing on 06.03.2007, neither of the accused was present in the Court in spite of the express directions of the Special Court. As far as the applications were concerned, a vague and perfunctory reply was filed by Mr. Pardeep Mehta, the Public Prosecutor, which in fact did not even deal with the contentions set out in the said application. There was not even a word of objection or opposition to the said application. As a matter of fact, the reply filed by the prosecution....
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....ts under Section 161 of the Criminal Procedure Code, 1973 resiled from the contents thereof. It may be seen that if, fear of or a sense of favour towards the Accused had driven the above witnesses who are officials of Departments such as the Vigilance Bureau, Irrigation and PWD Department to resile from their sworn statements, there could be no hope of truth or assurance of safety for the witnesses in the case. q) When the prosecution further continued on 20.08.2007, three more prosecution witnesses were examined and they all resiled from the statements made before them. r) The conduct of the Prosecution and the manner in which the Accused has struck at the heart of it and made it defenceless can be seen from the fact that in the course of such trial, it is common practice for the prosecution to require examination of the investigating officer at the end of evidence so that such investigating officer may prove the statement of the other witnesses even if they were to have resiled from the same in the course of examination. However, in the present case, despite the fact that some prosecution witnesses had already started resiling from their statements, the prosecut....
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.... have filed response among which let us refer the stand taken by the first respondent, namely, Mr. Prakash Singh Badal: a) The transfer petition is grossly belated. No explanation has been offered as to why the petitioner has chosen to wait until the entire prosecution evidence which commenced from 18.07.2007 stood concluded in March, 2008. The case is now at the stage of consideration of recording statements under Section 313 of Criminal Procedure Code. The petition is clearly politically motivated and an attempt to scuttle the trial which is at its fag end. b) A close relation of Capt. Amarinder Singh, namely, Mr. Simranjit Singh Mann, had filed a transfer petition in the High Court being CWP No. 11399/2007 for transfer of the case from Ropar to any other Court outside the State of Punjab on the basis of similar contentions, regarding the alleged impossibility of a free and fair trial in the State of Punjab. The said transfer petition was dismissed by the High Court, vide judgment and final order dated 25.09.2007, observing that there is no basis for the apprehension expressed by the writ petitioner. This judgment and final order of the High Court was never chal....
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....mself was heading the Government. The first respondent had appeared on several dates including 13.03.2007 and 04.07.2007 when charge sheet and amended charge sheet was served upon him. Thereafter, he had been seeking exemption from personal appearance by making appropriate application. He had been granted exemption on specific dates of hearing by the trial Court after due application of mind. Mr. Sukhbir Singh Badal appeared on most of the dates of hearing in the trial Court barring a few where he was granted exemption from personal appearance by the trial Court. h) Regarding the allegation of manhandling Mr. Amar Preet Singh Deol, the 1st respondent has specifically denied the same and neither Mr. Amar Preet Singh Deol nor any other person ever raised any issue before the trial court. Even in the transfer petition filed by Mr. Simranjit Singh Mann before the High Court, no such averment was ever made regarding the alleged manhandling of Mr. Amar Preet Singh Deol on 28.02.2007. Likewise, the 1st respondent has denied the allegation that supporters and party workers indulged in slogan shouting leading to a terror filled atmosphere in which no free and fair trial can ever pr....
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....hey had nothing to do with the allegations made against them. It is further pointed out that those witnesses clarified that they were not under pressure. It is also pointed out that inasmuch as most of the witnesses so far examined resiled one after another and only in this context, public prosecutor informed the Court that there is no purpose in continuing the prosecution. 7. The above transfer petitions have been filed under Section 406 of the Code of Criminal Procedure, 1973 which is reproduced below for ready reference: 406. Power of Supreme Court to transfer cases and appeals.- (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court. (2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except whe....
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....CriLJ 3480, the issue dealt with was for transfer of criminal case from one State to another. In the said decision it was reiterated that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. However, no universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consider....
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....al is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one. 14. In the light of the above principles, let us analyse the claim of both parties and find out whether the criminal trial is to be transferred to other State. It was pointed out that with respect to offences committed during the period between 1997-2002, the time when the first Respondent was the Chief Minister, an FIR was launched on 24.06.2003 and chargesheet was filed on 22.11.2003, citing 138 witnesses to be examined. A supplementary chargesheet was filed on 04.01.2004 citing more witnesses. The first Respondent came back to power as the Chief Minister in February, 2007. Out of 138 witnesses only 59 were examined, out of which 35 turned hostile. Mr. Altaf Ahmad, learned senior counsel for the petitioner pointed out that the aspect of selective calling up of witnesses, dropping crucial witnesses, most of the witnesses turning hostile one after another, non-examination of witnesses connected with the transaction and not citing certain witnesses hos....
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....perties in India and Abroad which were disproportionate to his known sources of income. The said letter was published in the Press and wide publicity was given for the purpose of electoral gain in February, 2002. A criminal complaint for defamation was filed by Mr. Badal's son Mr. Sukhbir Singh Badal, 2nd Respondent herein against the petitioner. It was pointed out that in the same month i.e. in 2002, the Congress party came to power in Punjab and the petitioner was appointed as the Chief Minister and retained with himself the portfolio of Home and Vigilance. It was further pointed out that on account of the persistence of the petitioner with his defamatory allegations, the respondent herein also filed a criminal complaint for defamation against the petitioner. In both the said criminal complaints, the petitioner had been the same and served with notice of accusation by the Trial court to face the trial. It is claimed that FIR dated 24.06.2003 is almost a verbatim copy of the letter dated 04.09.2001 written by the petitioner. In the counter affidavit filed before us the first respondent has highlighted various other proceedings between the respondents and the petitioner. In the....
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....ing the previous order dated 20.08.2007. Even thereafter, three more witnesses were examined on 26.11.2007 & 27.11.2007 and they too turned hostile. They are - 1. PW 43: Mr. Amandeep Singh Brar, Executive Engineer, PWD 2. PW 44: Mr. Sukdhip Singh Dhindsa, Executive Engineer, PWD and 3. PW 46: Mr. Surender Singh, Cable Operator. It is further seen that on 04.01.2008 two more witnesses were examined who also turned hostile. They are - 1. PW 50: Mr. Jit Singh, Agriculturist and 2. PW 52: Mr. Gurinder Pal Singh, Inspector General of Police, Railways. It was highlighted that those witnesses i.e. PWs 9 to 14, 35 & 36 had not even seen Balasar Farm House, where their services were alleged to have been utilized. Likewise, the other witnesses PWs 1 to 7, 15, 23, 24, 27, 28, 43, 44 and 53 have denied their role in assessing the properties on 1st, 2nd and 3rd November, 2003 i.e. the date of the assessment alleged by the prosecution. Those witnesses filed separate affidavit in the High court stating that on 1st,, 2nd, 3rd November 2003, when the alleged assessment said to be taken place, they were doing their official work at their respective offices. These witnesses admitted the fact that the....
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....ir resignation and new ones, in whom the Government of the day has confidence are appointed by the new Government/Political Parties. The same was also done by the government headed by the petitioner herein which came in power in the year 2002. Relating to the allegations that have been made against the Public Prosecutor Mr. Pardeep Mehta, the Chief Secretary has explained that Mr. Pardeep Mehta had been posted as Deputy District Attorney in the Vigilance Bureau, Punjab on 26.09.2002. He was promoted as District Attorney by Order dated 29.05.2006. Pursuant to his promotion as District Attorney vide order 31.05.2006 passed by the Principal Secretary, Department of Home Affairs and Justice, State of Punjab, he was appointed as District Attorney, Ropar. Soon after his appointment as Deputy District Attorney, Vigilance Bureau, Punjab, Mr. Pardeep Mehta had been conducting the prosecution of almost all the cases registered under the Prevention of Corruption Act at Mohali. He had also been assisting various special public prosecutors in the conduct of the trial of the present case, as well as the proceedings before the High Court and in this Court. He relied on the order sheet of the Tria....
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....about Mr. Pardeep Mehta cannot be sustained. It is also relevant to point out that before the Court of Special Judge, Ropar, the present Public Prosecutor Mr. Pardeep Mehta made a statement on behalf of the State that on the basis of the police records he had given up prosecution witnesses Mr. Kuldeep Singh, Mr. Bharat Shah, Mr. Amolak Singh and Mr. Surender Pal Mitra as they will not support the case of the prosecution and also stated that he wanted to examine only the witness Jatinder Singh, Sr. No. 5 in the supplementary challan, Mr. C. Paramjit Singh, Sr. No. 5, main challan, Mr. Surinder Pal Singh, Sr. No. 137, in the main challan, Mr. Amarjit Singh SP, Sr. No. 99, main challan, Mr. J.S. Kahlon, Sr. No. 34 of main challan, Mr. S. Chatopadhya, Sr. No. 135, main challan and Mr. B.K. Uppal, Sr. No. 136 of main challan. We also verified the statement of the 59 witnesses of which 35 declared as hostile by Public Prosecutor. The perusal leads to a conclusion that the presiding Judge has made an effort by putting relevant question to those witnesses and taking note of their assertion that they were forced to make incorrect statement at the time of preliminary investigation, the publi....