Delhi High Court
Sachin Jindal & Anr vs State on 12 April, 2019
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 10th April, 2019
Judgment Pronounced on: 12th April, 2019
+ TR.P.(CRL.) 43/2018
SACHIN JINDAL & ANR .....Petitioner
Through: Mr. Harshit Jain, Advocate.
Versus
STATE ....Respondent
Through: Mr. Rajat Katyal, APP for State
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
TR.P.(CRL.) 43/2018
1. The present petition has been filed under Section 407 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the 'Cr.PC')
read with Section 482 of Cr.P.C for setting aside order dated
02.07.2018 passed by the District & Sessions Judge, Rohini Courts
whereby his application for transfer of the Session Case No.
58093/2016 pending before the court of Shri Jitender Kumar Mishra,
Ld. ASJ/Special Judge (NDPS), North District, Rohini Courts to
another court has been dismissed.
2. Mr. Harshit Jain learned Counsel for the petitioner contended that the
present transfer petition has been filed because Shri Jitender Kumar
Mishra, Ld. ASJ/Special Judge (NDPS), North District, Rohini
Courts has abused his judicial position by passing an unjustified
order on 16.05.2018. He further contended that on the date of
TR.P. (CRL.) 43/2018 Page 1 of 5
recording of the evidence of the accused the matter was adjourned for
another day solely on the ground that the questions were not ready,
which unnecessarily delayed the trial proceedings and has caused
prejudice to the petitioner.
3. He further contended that due to the biased conduct of the Presiding
Officer the petitioners are apprehensive of not getting a fair and
impartial trial.
4. On the other hand, Mr. Rajat Katyal, learned APP appearing for State
contended that the present petition is a total abuse of process of law
and has only been moved to delay the trial.
5. Heard learned counsel for the parties and also perused the relevant
material on record including the order dated 16.05.2018.
6. At the outset, it is worth mentioning that the Hon'ble Supreme Court
of India in Harita Sunil Parab Versus State Of NCT of Delhi and
Others reported in 2018 6 SCC 358, while discussing the principles
on the apprehension of not getting a fair and impartial trial has laid
down various parameters, which the courts should outline while
dealing with such transfer petitions. The germane portion of the
judgment is extracted below:
"7. In Gurcharan Das Chadha vs. State of
Rajasthan, (1966) 2 SCR 678, dealing with the issue
for transfer of a case, it was observed:
"13....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
TR.P. (CRL.) 43/2018 Page 2 of 5
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 apprehension 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."
8. The apprehension of not getting a fair and
impartial enquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. No universal or hard and
fast rule can be prescribed for deciding a transfer
petition, which will always have to be decided on
the facts of each case. Convenience of a party may
be one of the relevant considerations but cannot
override all other considerations such as the
availability of witnesses exclusively at the original
place, making it virtually impossible to continue with
the trial at the place of transfer, and progress of
which would naturally be impeded for that reason at
the transferred place of trial. The convenience of
the parties does not mean the convenience of the
petitioner alone who approaches the court on
misconceived notions of apprehension.
Convenience for the purposes of transfer means the
convenience of the prosecution, other accused, the
witnesses and the larger interest of the society."
TR.P. (CRL.) 43/2018 Page 3 of 5
7. From the perusal of the above judgment, it is evident that a case can
only be transferred if there is a reasonable apprehension on the
ground that justice will not be done. Hence the apprehension of not
getting a fair and impartial trial is mandatory to be reasonable and
not imaginary, based upon conjectures and surmises.
8. Returning to the facts of the present case, the petitioner alleged that
the Learned Special Judge closed the prosecution evidence and
adjourned the matter for shorter dates, without hearing and giving a
reasonable and proper opportunity to the petitioner. As the matter
was continuously adjourned (from 17.04.2018 to 26.04.2018 and
further to 16.05.2018) on the ground that the questionnaire under
Section 313 of Cr.P.C was not ready, attention was drawn towards
order dated 16.05.2018, which reads as under:-
" Statement of accused Sachin Jindal U/s 313
Cr.PC recorded partly. Further statement could not
be recorded as questions are not ready.
Put up for recording remaining statement of
accused Sachin Jindal and statement of accused
Shilpi Jindal on 02.06.2018"
9. The aforesaid conduct of the Trial Court has created apprehension in
the mind of the petitioner that he will not be subjected to a free and
fair trial. Keeping in mind the facts of the present case and applying
the principles laid down by the Apex Court, the grounds urged by the
petitioner are totally misconceived and do not make a case for
transfer of the petition.
10. The trial court shall however ensure that the questionnaire U/s 313
TR.P. (CRL.) 43/2018 Page 4 of 5
Cr.P.C is prepared and the statement U/s 313 Cr.P.C is completed in
one day convenient to the trial court.
11. Accordingly the present petition stands disposed of.
12. Copy of the order be sent to District & Sessions Judge (Rohini
Courts) for information.
Crl. M. A. No. 12824/2018 (Stay)
In view of the order passed in the petition, the interim order dated
07.08.2018 stands vacated.
Application stands disposed of.
SANGITA DHINGRA SEHGAL, J.
APRIL 12, 2019
gr//
