Supreme Court: In the matter relating to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab,the single judge bench of Hrishikesh Roy, J has refused to transfer the Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab.
The transfer was sought on the ground that the case has generated deep anguish and bitterness amongst a particular religious group, who form majority of the population in the State of Punjab and therefore the accused who are members of the Dera Sacha Sauda sect, are facing bias and prejudice and are unlikely to get a fair trial in the face of strong presumption of culpability.
The Court, however, said,
“From the available material, this Court cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. The few instances mentioned by the petitioners’ counsel may suggest heightened feelings amongst different groups but they do not in my estimation, call for transfer of proceedings to another State.”
The Court, however, directed the State to make all arrangement to ensure safe conduct of proceedings at the trial courts and also provide adequate security to the petitioners and their associates as might be warranted from the security perspective.
Incidents in support of the contention that the accused were unlikely to get a fair trial in Punjab
- the murder of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha Central jail, showed the threat to the lives of other co-accused in the hands of the radical elements in the State.
- public appeals have been made to socially boycott the accused and also to those dealing with them, such as lawyers, doctors and taxi drivers and these developments would indicate the serious difficulties faced by the accused in conducting their defence.
- a forced statement under Section 164 CrPC was obtained from the petitioner which suggests that in Punjab, an unbiased prosecution cannot be ensured.
- mass gathering in the court premises where these cases are listed on the given dates, shows the threat to the life of the accused since adequate arrangement and security has not been provided by the State.
Why the Supreme Court refused to transfer the trial
Explaining when can a trial be transferred from one Court to another, the Court said that the Court must be fully satisfied about existence of such factors which would make it impossible to conduct a fair trial. General allegation of surcharged atmosphere is not however sufficient.
“The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone.”
Further, powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. If the Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted.
“The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.”
For coming to the conclusion that the present bunch of cases do not fall under such exceptional categories and hence, cannot be transferred, the Court kept in mind the following considerations:
- The petitioners have not moved out and continue to reside in the usual place of residence in the State and doing their work/business in a routine manner.
- No specific instance of prejudice was brought to the Court’s notice on account of social boycott call or appeal to the Medical professionals or taxi operators, to deny co-operation.
- No complaint was lodged before the court or to the authorities about any threat or intimidation.
- While there is a specific instance of one of the defence lawyer disassociating himself from the case on personal ground, the two regular lawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accused since January, 2019 without any break or difficulty. This would suggest that petitioners defence is not being compromised in Punjab and they are receiving adequate legal assistance.
- The matter emanates from the State of Punjab and the accused, the witnesses and the prosecutors are all from the State. If the trial is shifted out, all of them will face difficulties.
- The State’s pleading shows that those accused who have a threat implication have been provided personal security by the district police and laborate arrangements have been made on orders of the State’s DGP and on the trial date, additional force are deployed in the concerned Courts, to ensure safety of the petitioners and all other stakeholders.
- As the sacrilege incidents occurred in 2015, with passage of time, the atmosphere is expected to have mellowed down considerably. It has been more than 2 years since the petitioners were arrayed as accused in the cases. During this long period, no complaint has been made by the petitioners of any threat to their security or to their associates.
- The petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition.
- Insofar as the death of the accused Bittoo in Nabha jail, the projection of the State is that he was murdered by jail inmates undergoing life imprisonment in some other cases and for this incident FIR under Section 302, 34, 120B IPC is registered in PS Sadar, Nabha, chargesheet has been filed and trial has commenced. Hence, at this stage it cannot be said if this incident has any link with the other cases or it is a standalone event.
- The trial it at the stage of final arguments. The other five cases are at the stage of evidence or charge stage. It will therefore not be fair to the prosecution, the State and the witnesses who are yet to testify, to shift the proceeding without compelling reasons as it will inevitably delay the trial. One must also remember that convenience of all parties should be looked at and not just the party which is seeking transfer.
[Jatinderveer Arora v. State of Punjab, 2020 SCC OnLine SC 952, decided on 25.11.2020]
For Petitioners: Senior Advocate Ranjit Kumar
For Respondent: Senior Advocate Harin P Raval