PETITIONER:
GURUCHARAN DAS CHADHA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT:
24/11/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
RAMASWAMI, V.
CITATION:
1966 AIR 1418 1966 SCR (2) 678
CITATOR INFO :
RF 1987 SC1140 (3)
R 1988 SC1531 (152)
ACT:
Code of Criminal Procedure, s. 527--Supreme Court's
power to transfer cases from one State to another--Power
whether inconsistent with s. 7(2) of the Prevention of
Corruption Act, (Act 2 of 1947)--Case triable before special
judge of area within which offence committed, whether can be
transferred outside such area.
HEADNOTE:
The petitioner was a member of an All India Service
serving in the State of Rajasthan. The State Government
ordered his trail before the Special Judge of Bharatpur
under s. 120B/161 of the Indian Penal Code and s. 5(1) (a)
(d) and s. 5(2) of the Prevention of Corruption Act. He
moved the Supreme Court under s. 527 of the Code of Criminal
Procedure praying for the transfer of his case to another
State, on various grounds. On behalf of the State it was
contended that the Supreme Court could not exercise its
powers under s. 527 of the Code of Criminal Procedure in the
matter because s. 7(1) of the Prevention of Corruption Act
required the offences in question to be tried by a special
judge only, and s. 7(2) of the Act required the offence to
be tried by a Special Judge for the area within which they
were committed which condition could never be satisfied if
there was a transfer.
HELD : (i) The condition in sub-section (1) of s. 7 of
the Prevention of Corruption Act that the case must be tried
by special judge is a sine qua non for the trial of offences
in Section 6. This condition can be satisfied by
transferring the case from one special judge to another
special Judge. [684 B]
Sub-section (2) of s. 7 merely distributes work between
special judges appointed in a State with reference to
territory. This Provision is on a par with the section of
the Code of Criminal Procedure which confer territorial
jurisdiction on Sessions Judges and Magistrates. An order
of transfer by the very nature of things must sometimes
result in taking the case out of the territory. [685 D]
(ii) The third sub-section of s. 8 of the Act preserves
the application ,of any provision of the Code, of Criminal
Procedure if it is not inconsistent with the Act save as
provided in the first two sub-sections of that section.
Section 527 of the Code therefore remains applicable; if it
is not inconsistent with s. 7(2) of the Act. There is no
inconsistency between s. 527 of the Code and s. 7(2) of the
Act because the territorial jurisdiction created by the
latter operates in a different Sphere and under different
circumstances. Inconsistency can only be found if two pro-
visions of law apply in identical circumstances, and create
contradictions. Such a situation does not arise when either
this Court or the High Court exercises the power of
transfer. Therefore this Court in exercise of its
jurisdiction and power under s. 527 of the Code can transfer
a case from a special judge subordinate to one High Court
to another special judge subordinate to another High Court
[685 E]
Ramchandra Prasad v. State of Bihar, A.I.R. 1961 S.C.
129, referred to,
679
(iii) On merits however the petition in the present case
could not succeed. There was nothing in it which would show
that there was any interference direct or indirect with the
investigation of the offences alleged against the petitioner
or the trial of the case by the special judge. A general
feeling that some persons are hostile to the petitioner is
not sufficient. The Court has further to see whether the
apprehension is reasonable. [686 H]
JUDGMENT:
ORIGINAL JURISDICTION: Transfer Petition No. 7 of
1965.(Under Section 527 of Criminal Procedure Code).
T. R. Bhasin, for the petitioner.
G. C. Kasliwal, Advocate-General for the State of
Rajasthan,
K. K. Jain and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
Hidayatullah, J. This is a petition under S. 527 of
the Code of Criminal Procedure for the transfer of a
criminal case (No. 2 of 1964-state v. Gurcharan Dass Chadha
I.P.S.) which is pending in the Court of the Special Judge,
Bharatpur, Rajasthan to another criminal court of equal or
superior jurisdiction subordinate to a High Court other than
the High Court of Rajasthan. The petitioner is the accused
in that case and he is being tried under ss. 120B/161,
Indian Penal Code and S. 5(1)(a)(d) and 5`2) of the
Prevention of Corruption Act.
prosecution has been sanctioned by the Government of
India. In December, 1962, he was serving as Superintendent
of Police and was selected to be Commandant of 8th Batallion
of Rajasthan Armed Constabulary. He avers that he took over
as Commandant on January 7, 1963 but was placed under
suspension the same day and a case was registered on January
12, 1963 which has resulted in the present prosecution
against him. The petitioner apprehends for reasons to be
stated presently that he is not likely to get a fair, just
and impartial trial in the State of Rajasthan owing to the
hostility and influence of the then Law Minister who was
also Minister incharge of Home Department of the State, the
Additional Inspector General of Police, Anti-Corruption, and
the Deputy Inspector General of Police, Ajmer Range, Jaipur.
In support of his petition he has referred to many incidents
and filed many documents. He has sworn an affidavit that he
entertains an apprehension that these persons would
interfere with the trial of the case in the State of
Rajasthan and that a transfer of the case outside the State
is in the interest of justice.
680
The State Government has opposed the application strenu.
ously and has questioned the jurisdiction of this Court to
transfer under the powers conferred on it by s.. 527 Code of
Criminal Procedure a case made over by the Government of the
State of Rajasthan for trial to a Special Judge under the
Criminal Law Amendment Act, 1952 (Act 46 of 1962). In
addition, the State Government joins issue on the facts
alleged and the merits of the claim for the transfer of the
case.
While this petition was pending the State Government
served the petitioner with a notice and a charge-sheet to
show cause why he should not be proceeded against for breach
of Rule No. 8 of the All India Services (Conduct) Rules,
1954, because he had communicated “directly/indirectly
official documents and information to Government
servants/other persons to whom he was not authorised to
communicate such documents/information” as indicated and
detailed in a statement of allegations accompanying the
notice and the charge. The State Government has appended to
this charge two appendices giving details of 31 and 16 docu-
ments respectively, which were said to have been so
communicated by the petitioner to his counsel Messrs. R. K.
Rastogi and D. P. Gupta, Advocates of Jodhpur and others
named as “non-petitioners” in a writ petition which he had
filed in the High Court of Rajasthan (No. 794 of 1964) and
which he subsequently withdrew on December 23, 1964 before
taking action to file the present petition. The notice, the
charge and the statement of allegations accompanying them
were signed by Mr. Vishnu Dutt Sharma, Special Secretary to
Government. On receiving this charge, the petitioner moved
another petition in this Court for taking action against Mr.
Shrama and the Government of Rajasthan for contempt of this
Court. At an earlier hearing, where we were considering the
petition for transfer, the other petition was brought to our
notice and we were about to order issuance of notices to the
contemners but the Advocate General of the Government of
Rajasthan took notice of the petition and offered to take
action in respect thereof. As a result the State of
Rajasthan through the Chief Secretary to the Government and
Mr. Sharma separately filed their replies to the second
petition and attempted justification. Mr. Sharma abjured
knowledge of the contents of the petition for transfer and
denied any malice, ill-will or grudge, pleading good faith.
The matter would have received serious attention from us but
for the fact that at the next hearing the plea for
justification was abandoned and an unconditional apology was
entered on behalf of the State Government as well as Mr.
Sharma. The latter was present in Court and expressed
regret for what had. happened.
681
We accepted the appology and do not, therefore,feel called
upon to consider the plea of justification which, in any
event, is not a plea heard in bar when contempt is clear and
manifest. There could be no question in the present case
that by charging the petitioner with proceedings of a
different kind there was, if not direct, at least indirect
pressure brought upon him in the prosecution of his petition
for. transfer. Of this we would have taken serious note be-
cause it was likely to have hampered the petitioner in
prosecuting his petition freely before this Court and would
have resulted in obstruction of administration of justice.
If the petitioner was guilty of any lapse under the Services
(Conduct) Rules or even guilty of an offence the action to
which he would be otherwise subject could wait till the
present proceedings had terminated and there was really no
reason to hurry with a charge against the petitioner which
charge would have put him under duress of some kind. Such a
course of action ‘is to be deprecated and we are glad to
note that the Government of Rajasthan and the Secretary
concerned have seen the matter in this light and have made
amends by proper contrition. We do not feel called upon to
say more than this on the petition for contempt which shall
be filed.
We shall now take up the objection that this Court
lacks jurisdiction to transfer the case pending before the
special Judge, Bharatpur. This objection goes to the root
of the matter. Questions of inherent jurisdiction must
always be decided before the merits are considered because
to dismiss the petition after consideration of merits itself
involves an assumption of jurisdiction. We must accordingly
consider the objection even though we are satisfied that-the
petition must fail on merits.
The power which the petitioner is invoking flows from
s. 527 of the Code of Criminal Procedure. The first two
sub-sections of that section are material here and they
read:
“527. 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
682
or of a party interested, and every such
application shall be made by motion which
shall, except when the applicant is the
Attorney-General of India or the Advocate-
General, be supported by affidavit or
affirmation.
It is conceded by the Advocate General that the power to
transfer criminal cases as laid down in the section is
ordinarily available but he contends that a case assigned by
the State Government under the Criminal Law Amendment Act,
1952 to a special Judge cannot be transferred at all because
under the terms of that Act, which is a self-contained
special law, such a case must be tried by the special Judge
designate only. The argument is extremely plausible but
does not bear close scrutiny. To understand the argument
and how it is refuted certain provisions of the Act may be
seen. The first section of the Act gives the short title of
the Act. Sections 2 and 3 of the Act introduce changes in
the Indian Penal Code by increasing the punishment in s. 165
and by inserting S. 165A which provides for punishment for
abetment of offences defined in ss. 161 and 165. Sections 4
and 5 of the Act make some amendments in s. 164 of the
Indian Penal Code and s. 337 of the Code of Criminal
Procedure. These four sections have been repealed by the
Repealing and Amending Act, 1957 as they were no longer
necessary. The sections which we have to consider are ss.
6, 7 and 8 of the Act. Section 6 confers power on the State
Government to appoint special Judges for the trial of
certain offences. The parts relevant to our purpose read
“6. Power to appoint special judges.
(1) The State Government may, by notification in the
official Gazette, appoint as many special Judges as may be
necessary for such area, or areas as may be specified in the
notification to try the following offences, namely :-
(a) an offence punishable under section 161, section
162, section 163, section 164, section 165, or section 165-A
of the Indian Penal Code (Act XLV of 1860), or sub-section
(2) of section 5 of the Prevention of Corruption Act, 1947
(11 of 1947)
(b) Any conspiracy to commit or any attempt to commit
or any abetment of any of the offences specified in clause
(a).
683
Section 7 next provides what cases shall be tried by special
Judges.The first two sub-sections read :
“7. Cases triable by special Judges.
(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1898 (Act V
of 1898) or in any other law the offences
specified in sub-section (1) of section 6
shall be triable by special Judges only.
(2) Every offence specified in sub-
section (1) of section 6 shall be tried by the
special Judge for the area within which it was
committed, or where there are more special
Judges than one for such area, by such one of
them as may be specified in this behalf by the
State
Government.”
The procedure which the special Judge has to follow is laid
down in s. 8 (1) and by sub-section (2) of the same section
certain powers are confered on the special Judge. Sub-
section (3) then provides:
“8. Procedure and Powers of Special Judges.
(1)………………………………
(2)………………………………
(3) Save as provided in sub-section (1) or sub-section
(2), the provisions of the Code of Criminal Procedure, 1898,
shall so far as they are not inconsistent with this Act,
apply to the proceedings before a special Judge; and for the
purposes of the said provisions, the Court of the Special
Judge shall be deemed to be a Court of Session trying cases
without a jury or without the aid of assessors and the
person conducting a prosecution before a special Judge shall
be deemed to be a public prosecutor.
. . . . . . . . . . . .
There is no need to refer to other provisions of the Act
which do, not bear upon this matter.
The Advocate General, Rajasthan in opposing the petition
relies, principally on the provisions of s. 7(1) and (2) and
contends that the two sub-sections create two restrictions
which must be read together. The first is that offences
specified in s. 6(1) can be tried by special Judges only.
The second is that every such offence shall be tried by the
special Judge for the area within which it is committed and
if there are more special Judges in that area, by the
684
special Judge chosen by Government. These two conditions,
being Statutory, it is submitted no order can be made under
S. 527 be because on transfer, even if a special Judge is
entrusted with the case, the second condition is bound to be
broken.
No doubt sub-section (1) of s. 7 lays down that the
trial of an offence specified in sub-section (1) of s. 6
must be by a special Judge only but that condition can be
fully met by transferring the case to another special Judge.
Indeed section 527 itself contemplates that the transfer
should be to a court of equal or superior jurisdiction and
we presume that there are special Judges in every State of
India. The selection of a special Judge causes no
difficulty. It is the second condition which is really
pleaded in bar. The provision of sub-section (2) of s. 7 is
that an offence shall be tried by the special Judge for the
area within which it is committed.
This condition, if literaly understood would lead to
the conclusion that a case once made over to a special Judge
in an area where there is no other special Judge, cannot be
transferred at all. This could hardly have been intended.
If this, were so, the power to transfer a case intrastate
under s. 526 of the Code of Criminal Procedure, on a parity
of reasoning, must also be lacking. But this Court in
Ramchandra Prasad v. State of Bihar(1) upheld the transfer
of a case by the High Court which took it to a special Judge
who had no jurisdiction in the area where the offence was
committed. In holding that the transfer was valid this
Court relied upon the third sub-section of s. 8 of the Act.
That sub-section preserves the application of any provision
of the Code of Criminal Procedure if it is not inconsistent
with the Act, save as provided in the first two sub-sections
of that section. The question, therefore, resolves itself
to this : is there an inconsistency between s. 527 of the
Code and the second sub-section of s. 7 ? The answer is that
there is none Apparently this Court in the earlier case
found no inconsistency and the reasons appear to be these :
The condition that an offence specified in s. 6(2) shall be
tried by a special Judge for the area within which it is
committed merely specifies which of several special Judges
appointed in the State by the State Government shall try it.
The provision is analogous to others under which the juris-
diction of Magistrates and Sessions Judges is determined on
a territorial basis. Enactments in the Code of Criminal
Procedure intended to confer territorial jurisdiction upon
courts and Presiding Officers have never been held to stand
in the way of transfer of ,criminal cases outside those
areas of territorial jurisdiction. The
(1) [1962] 2 S.C.R. 50.
685
order of transfer when it is made under the powers given by
the Code invests another officer with jurisdiction although
ordinarily he would lack territorial jurisdiction to try the
case. The order of this Court, therefore, which transfer a
case from one special Judge subordinate to one High Court to
another special Judge subordinate to another High Court
creates jurisdiction in the latter in much the same way as
the transfer by the High Court from one Sessions Judge in a
Session Division to another Sessions Judge in another
Session Division.
There is no comparison between the first sub-section and
the second sub-section of s. 7. The condition in the second
sub-section of S. 7 is not of the same character as the
condition in the first sub-section. The first sub-section
creates a condition which is a sine qua non for the trial of
certain offences. That condition is that the trial must be
before a special Judge and laye emphasis on the fact that
trial must be before a special Judge appointed for is on a
par with the distribution of work territorially between
different Sessions Judges and Magistrates. An order of
transfer, by the very nature of things must, some times,
result in taking the case out of the territory and the
provisions of the Code which are preserved by the third sub-
section of S. 8 must supervene to enable this to E be done
and the second sub-section of s, 7 must yield. We do not
consider that this creates any inconsistency because the
territorial jurisdiction created by the second sub-section
of s. 7 operates in a different sphere and under different
circumstances. Inconsistency can only be found if two
provisions of law apply in identical circumstances and
create contradictions. Such a situation does not arise F
when either this Court or the High Court exercises its
powers of transfer. We are accordingly of the opinion that
the Supreme Court in exercise of its jurisdiction and power
under s. 527 of the Code of Criminal Procedure can transfer
a case from a special Judge subordinate to one High Court to
another special Judge subordinate to another High Court.
This brings us to the question of the merits of the
petition. The petitioner is being prosecuted for offences
under s. 120B/161 of the Indian Penal Code and s. 5(1)(a)(d)
and 5(2) of the Prevention of Corruption Act. His
apprehension is that the case against him is H the result
of the machination of two Police Officers and one Mr.
Mathura Dass Mathur who was the Home Minister in 1962.He
also alleges hostility on the part of the State Government.
He has given instances which in his opinion prove that the
above two
686
officers, the Home Minister and the State Government are
hostile to him. In relation to the State Government he has
alleged that when he was appointed Commandant of the 8th
Battallion of Rajasthan Armed Constabulary the State
Government down-graded his post, otherwise he would have
received a higher starting pay. He also alleges that his
suspension and prosecution were made to coincide
With his assumption of new duties so that he might not
be able to join his new post. With regard to the Home
Minister the petitioner has given five instances in which he
apparently crossed the minister’s path and gave him room for
annoyance. In regard to the two Police Officers he has
averred that the Deputy Inspector General of Police, Ajmer
Range (Hanuman Prasad Sharma) and he had some differences on
three occasions. He has also given similar instances of
hostility towards him entertained by Sultan Singh, Deputy
Inspector General of Police. On the basis of these he says
that he entertains an apprehension that he will not receive
justice in the State of Rajasthan. The law with regard to
transfer of cases is well-settled. 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 appre-
hension 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.
Applying these principles it may be said that there is a
possibility that the petitioner entertains an apprehension
that certain persons are hostile to him but his apprehension
that he will not receive justice in the State of Rajasthan
is not in our opinion reasonable. All the facts which he
has narrated bear upon past events in his official life.
Nothing has been said which will show that there is in any
manner an interference direct or indirect with the
investigation of the offences alleged against him or the
trial of the case before the special Judge, Bharatpur. A
general feeling that some persons are hostile to the
petitioner is not sufficient. There must be material
687
from which it can be inferred that the persons who are so
hostile are interfering or are likely to interfere either
directly or indirectly with the course of justice. Of this
there is no trace either in his petition or in the arguments
which were advanced before us. Nor does the petitioner
allege anything against the special Judge who is trying the
case. In this view of the matter we decline to order trans-
fer of the case from the special Judge, Bharatpur. The
petition accordingly fails and will be dismissed.
Petition dismissed.
688