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Transfer of case not possible on mere apprehension of danger, says SC
The SC has stated that “While assurance of a fair trial needs to be considered, the petition for transfer of case should not be entertained on just apprehension of a hypersensitive person.”
Justice Hrishikesh Roy dismissed a petition which was filed by investigative journalist Umesh Kumar Sharma, seeking transfer of three criminal cases pending against him to Delhi from Dehradun on the ground of malicious prosecution within the state.
Senior Counsel Kapil Sibal mentioned that the petitioner apprehends threat to his life and will be prejudiced in conducting his defence in the courts at Dehradun. The main factor for such apprehension is that on account of his work as an investigative journalist against the ruling party, the state is targeting the petitioner for vindictive prosecution. As a journalist, the petitioner has organized sting operations against the Chief Minister, his relatives and associates in the State of Uttarakhand and therefore he is being targeted for malicious prosecution within the State. Thus, those cases are transferred either to the courts in Delhi or any other competent courts, except Uttarakhand.
Advocate Ruchira Gupta, appearing for the State of Uttarakhand stated that the petitioner has failed to demonstrate how and in what manner, he will be prejudiced if the trials continue in the courts at Dehradun. Since investigation in all three cases have been ended and the charge sheet has been filed, the apprehension of interference in the cases by the State administration is contended to be wholly unfounded.
The Court, while considering the arguments, stated that “When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One case is pending for over a decade. Therefore, the SC finds it hard to accept that the cases are on account of journalistic activities of the petitioner. In fact, the credibility of the journalistic activity of the petitioner is itself is questioned, by a member of his sting operation team, in the third case.”
Citing the judgements in Maneka Sanjay Gandhi vs. Rani Jethmalani, Abdul Nazar Madan vs. State of T.N., R. Balakrishna Pillai vs. State of Kerala and Captain Amrinder Singh Vs. Prakash Singh Badal & Ors. in issue of transfer of criminal cases, the Court stated that “transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a petition for transfer might be considered. The court, however, will have to be completely satisfied that impartial trial is not possible. Very important is to check that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.
“While the assurance of a fair trial needs to be kept in mind, the plea for transfer of case should not be entertained on mere apprehension of a hypersensitive person,” said the SC
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