CLINICAL 4TH

Transfer petition.

BY

NAVED MUSTAFA
B.A.LL. B (HONS) 10TH SEMESTER

TO

Dr. Prof. NUZHAT PARVEEN KHAN.

FACULTY OF LAW
JAMIA MILLIA ISLAMIA
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Prof. Nuzhat
Parveen Khan, who gave me the golden opportunity to do this wonderful project on the
topic – transfer petition.
Which also help me in doing a lot of research and I came to know about so may
new things I am really thankful to them.

Thanking You,

NAVED MUSTAFA

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INTRODUCTION

Transfer petition means when somebody wants to transfer his or her case from court to another
in some other state for the purpose of convenience of the party. The party may write an
application for the transfer of the case and the court may approve or disapprove it accordingly.

Transfer of case under Constitution of India

We all know that Constitution is the groundnorm of our country. Every other law is derived
from this and cannot go in contravention to the provisions of the Constitution.

For transfer petition article 139A is the provision. It was introduced as a part of
42nd constitutional amendment. It enabled the citizens to approach the apex court to transfer
their cases to other court in some other place or state provided they fulfill the conditions
provided in the provision. But this article is not exhaustive of the articles 136 and 142.

Article 139A: Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts and
the Supreme Court is satisfied on its own motion or an application made by the Attorney-
General for India or by a party to

any such case that such questions are substantial questions of general importance, the Supreme
Court may withdraw the case or cases pending before the High Court or the High Courts and
dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any
case so withdrawn together with a copy of its judgment on such questions to the High Court
from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed
to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court.[1]

The purpose of this provision is that no one must suffer injustice due to lacunae in the
machinery. Everyone has the right to justice and it is the duty of state and the judiciary to ensure
it to all. This is what has been stated in the preamble as well, preamble which is the soul of our
constitution.

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It is to be noted that where the High Court has the power to dispose the cases then
application for transfer of cases to the Supreme Court cannot be entertained.

Case laws under article 139A

1. Vankatapathi vs State

Issue :- the petitioner was ex Advocate General of Tamil Nadu state and was appointed as
special prosecutor by the High Court said that he wasn’t provided with all the required papers
in appeal which was filed by the CM of Tamil Nadu, Ms J. Jayalalitha. He filed a petition for
transfer.

Decision :- Supreme Court dismissed the petition and ordered rehearing of case after complete
papers and documents were given to the petitioner.

Transfer petition under civil procedure code

Under Section 25 of this code Supreme Court has been given the power to transfer any case,
appeal or other proceedings from the High court or any other civil court of one state to that of
another across India. The Supreme Court can exercise this power when it feels it necessary to
order a transfer for the need of justice.

In majority cases this provision comes handy in matrimonial matters and usually by the wife.
When the husband institutes or files a divorce case or any other proceeding relating to marriage
against the wife then the case goes on at the place where the husband is residing. The wife,
who in most cases has returned to her paternal house files a transfer petition on the ground that
it is hard for her to bear the expenses of travelling, or her child isn’t grown up enough to be left
behind, or maybe she faces some sort of threat when she comes to attend the proceedings etc.
The court being sensitive to these issues of the lady usually considers it fit to grant the transfer.
But this is not the case in every situation.

Matrimonial issues is one type, there are other cases such as property related issues etc. which
can be transferred on various grounds as per the suitability of the applicant.

Case laws relating to Civil transfer matters

1. Harish Nagam vs. Krishna Veni Nagam

Issue:- The couple got married in 2008 in Hyderabad They got a daughter in 2009. While
living with the in laws in Jabalpur, M.P. the wife was subject to physical and mental torture.

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She got an injury in the spinal cord and left the husband’s place with her daughter in 2012. The
husband filed for restitution of conjugal rights which was dismissed as the case was withdrawn.
Later the husband filed for divorce in Jabalpur itself. The wife then filed for transfer of case
since she being single parent of a minor daughter could not leave her alone and also bear the
expenses of travelling from Hyderabad to Jabalpur.

Decision :– The court granted transfer of case owing to the condition of the wife. It was
transferred to family court, Hyderabad.

2. Kalpana Devi Prakash Thakkar vs Devi Prakash Thakkar

Decision:- The court disallowed wife’s petition to transfer the case concerning matrimonial
issues from Mumbai to Palanpur, Gujarat due to following reasons:-

1. The husband was a doctor and his absence will cause inconvenience to the patients.

2. His mother was old and ailing who needed proper care and attention.

3. The wife had relatives in Mumbai where she could come and stay during the
proceedings.

4. The husband was ready to pay for expenses of wife during her travelling.

The problem arises when the case involves transfer to Jammu and Kashmir since civil
procedure code does not apply there.

3. Kiran Ramanlal Jani vs Gulam Kadar

Decision:- The petitioner prayed for transfer of case from Jammu and Kashmir to Gujarat. The
case was regarding claim for motor accident. The court allowed the transfer provided the
respondents to do not have an objection. It was but made out that there to be a better way to
deal with such type of legal matters. When there some transfer of case from one state to Jammu
and Kashmir then petition must be filed under Article 136 against the orders of summons,
personal appearance etc. Once it is done, the Court will have power under Article 142 to
transfer the case and do justice.

Transfer petition under Criminal Procedure Code

Under Sections 191, 402, 406, 407, 408 Crpc one can apply for transfer of a case.

Under Section 406, the Supreme Court has got the powers to transfer criminal cases or appeals
from one High Court to another or one Criminal Court to another. But the Supreme Court can
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act only on the application by the Attorney General or the application by the party interested.
The Supreme Court can even on dismissing of the application ask the party to pay
compensation of not more than Rs 1000 on the grounds of it being frivolous.

Case laws relating to criminal matters

1. Maneka Sanjay Gandhi vs Miss Rani Jethmalani

Decision: – Justice Krishna Iyer observed that: assurance of a fair trial is the first imperative
of the dispensation of justice and the central criteria for the court to consider when a motion
for transfer is made is not the hypersensitivity or relative convenience of a party or easy
availability of legal services or like mine- grievances. Sometimes more substantial more
compelling, more imperiling from the point of view of public justice and its
attendant environment is necessitous if the court is to exercise its power of transfer. This is the
cardinal principal although the circumstances may be myriad and vary from case to case. [2]

2. Vikas Kumar Roorkewal vs State of Uttrakhand and others.

Issue: – A high profiled accused murdered an engineer. The Uttrakhand police was incapable
and also somewhat reluctant in dealing with the case. The case was then given to the Uttar
Pradesh Police which made a special task force to investigate into the matter.

Decision:– For the safety of the witnesses who face fear and threat in coming to Haridwar for
the case proceedings the case was transferred from Haridwar court to Delhi Court. It was
mandatory so that justice is not hampered.

Format for transfer petition

1. Short synopsis

A simple synopsis stating the grounds on which you wish to seek transfer of petition must be
presented before the Supreme Court or as the case may be.

2. Details of the case

Specify the details of the case and also the Court in which to transfer the case of desire.

3.Grounds

The grounds on which transfer is desired must be specified. These can be:

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 1. Prejudice in the jurisdiction– for example the husband might hamper with the
proceedings, he being quite influential.

2. Threat to life– it is a good ground to ask for transfer

3. No support– if the petitioner has no support or conveniences in the original place of

case he/she may ask for transfer

4. Medical issues– are the person has medical problems and cannot travel, but a proof
must be given for this purpose.

5. Family issues– like ailing parents or minor kids or their studies being hampered tc.

6. No income source– if the petitioner has low income or no income he/she will face
problems in travelling etc.

4. Interim relief

Stay of proceedings desired to be transferred can be seeked for.

TRANSFER OF APPLICATION AS PER THE PROVISION OF SECTION 25 OF THE

CIVIL PROCEDURE CODE

Section 25 of the Code of Civil Procedure is associate degree enabling provision that
empowers the Supreme Court of India to transfer any case, or different proceedings from a
court or [any different the other] Civil Court in one state to a different court or other Civil Court
in the other state.

According to the Code, this power could also be exercised by the Supreme Court if it’s happy
that associate degree order underneath section 25 is expedient for the ends of justice. Therefore
wide powers are presented on the Supreme Court to order a transfer of a civil case if the Court
feels that the ends of justice shall be met within the explicit circumstances.

In the majority of cases, this provision is invoked in married matters and frequently at the
instance of the partner once she is clothed as a respondent in the proceedings initiated by the
husband and in cases wherever the parties have separated for married variations and are living
in several states. In these types of cases, the partner moves for transfer of the proceedings on
the bottom of her inability to defend the proceedings for being not during a position to afford
travelling, being not during a position to not leave her child/children behind and on the grounds

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her personal safety and inconvenience besides expenses. The Court invariably takes a
sympathetic read in favor of the partner but, that’s continuously not the case as in some cases
the Supreme Court has control that the convenience of the petitioner cannot eclipse the
necessity of justice.

The invocation of the jurisdiction for transfer of cases is but not restricted or restricted to
married disputes and is feasible for different cases conjointly.

Similarly, Section 406 of the Code of Criminal Procedure empowers the Supreme Court of
India to transfer criminal cases and appeal unfinished in one court to a different court or from
a Judicature subordinate to at least one court to a different judicature of equal or superior
jurisdiction subordinate to a different court.

In each sort of cases associate degree application with official document of the petitioner in
conjunction with copy of the case wanted to be transferred is needed to be filed before the
Supreme Court of India with a prayer for the transfer of the case to a specific Court in another
State and a prayer for keep of the proceedings before the Court below within the case wanted
to be transferred.

It would unremarkably take the Supreme Court of India to make a decision associate degree
Transfer Petition inside an amount of roughly four to six months’ time once hearing each side
on deserves till which era the proceedings before the Court below stay, will be stayed by an
order of the Supreme Court.

Firstly the Petition for Transfer of case from one state or city to another state or city was
common in the matrimonial matters. The wives have taken many advantages by taking some
important grounds for transferring the petition.

Typical grounds taken by wife in the transfer petitions are below:

 Having a child

 Travel is unsafe being a lady

 Expenses required for travel

 Threat to life at Husband’s place

 Husband is very influential in his place

 Inconvenience to travel long distance.

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Some of the landmark cases of transfer of cases in matrimonial matters are:-

In Dr. Subramaniam Swamy v. Ramakrishna Hegde,[1] the Court rules that:

The paramount thought for transfer of a case under Section 25 of Code of Civil Procedure must
be the necessity of justice. It was held that the mere convenience of the parties or anyone of
them might not be enough for the exercise of power, however, it ought to even be shown that
trial within the chosen forum will result in denial of justice. The Court any control that if the
ends of justice therefore demand and also the transfer of the case is imperative, there ought to
be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and
thought of complainant’s convenience etc. cannot eclipse the necessity of justice. Justice
should be done in any respect costs; if necessary by the transfer of the case from” one court to
a different.

This provision has been most frequently invoked in matrimonial matters, and usually at the
instance of the married woman, once the husband and married women are living separately and
the husband files a petition for divorce or institutes alternative proceedings under the law
concerning wedding and divorce at the place wherever he is residing, that is sometimes the
place wherever the parties last resided along, the wife, who has typically came to her parental
home, moves for transfer either on the ground that she cannot afford to travel or that she cannot
leave her kid behind or that she faces threats once she goes to defend the proceedings. The
Court invariably takes a sympathetic read towards the wife’s plea for transfer, however this is
not always the case.

In Kalpana devi Prakash Thakar Vs Dev Prakash Thakar[2], the Court disallowed the wife’s
plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into
account the subsequent considerations:

1. The husband was a health care provider and his absence from Mumbai would cause
inconvenience to his patients;

2. His previous and unwell mother who. lived with him required regular medical check-
ups and constant care;

3. The witnesses were mainly from Mumbai;

4. The wife had relatives in mumbai with whom she could stay .whenever she went there
for the case;

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 5. The husband was ready to bear the expenses of travel and additionally the traveling
expenses of the escort.

6. Palanpur was well connected to Mumbai by train.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha[3], the Court disallowed a
woman’s application for transfer of an application for grant of a succession certificate, from
Gujarat to U.P. Her main plea was that being a woman she was unable to travel from U.P. to
Gujarat. The Court disallowed the petition primarily on the ground that the respondent was
able to pay” the traveling expenses. The Court further held, that if the petitioner had any issue
in participating a counsel as a result of monetary constraints, she may file an application to
recover the amounts paid for the same from the respondents, in the trial court at Gujarat.

A couple of issues have arisen within the context of the power of the Court to order transfer
under Section 25 CPC often the Court has felt that the parties would be advised to dissolve
their marriage by mutual consent, and sometimes.the parties themselves have to be compelled
to come to such an understanding. In such a situation, the court has usually permissible the
parties to file a petition for divorce by mutual consent.in the Supreme Court itself.

However, some benches have taken the view that this cannot be done and that such a petition
will only be filed in the court. It is respectfully submitted that the Court is not even in delegation
the parties to the court when both the parties are willing to dissolve. the marriage by mutual
consent. It’s exactly in such things that the ability of the Court beneath Article 142 of the
Constitution will return to the help of parties, as a result of “complete justice” is then done.
the need that the petition for divorce by mutual consent ought to be filed within the Court of
District choose or the court, is at the best a procedural matter and doesn’t alter the substantive
rights of the parties.

Another problematic scenario which arises typically is when the transfer of a case is sought-
after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State
and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t
apply.

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor
accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in
the absence of any objection on behalf of the respondents and their non-appearance even when
in service. It is, however, submitted that there has to be a sound legal basis for such transfer,

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when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir,
the acceptable course would be to file a petition for special leave under Article 136 against the
order directing issue of summons, personal appearance, etc. Once the Court is seized of the
matter under Article 136 of the Constitution, it would have power under Article 142 to direct
transfer, in order to do complete justice.

A couple of other cases may now be noticed. On a petition under Section 25 of the Code of
Civil Procedure, a civil suit pending in the Court of the Subordinate Judge, Patna was
transferred to the Mumbai High Court to be tried with another suit pending on the original side
of the Mumbai High Court, thereafter the suit in the Mumbai High Court was set and was
carried in appeal in the case of Bihar State Food and Supplies Corporation v. Godrej Soaps
(P) Ltd. and Sons[4], a petition under Section 25 CPC was filed for re-transfer of the suit to
the Subordinate Judge at Patna on the ground that the purpose of transfer was over since the 2
cases couldn’t currently be tried along. The Court disallowed the petition for transfer and
requested the learned decide on the initial side to frame the necessary problems in the suit
inside six weeks and thereafter take evidence on a day-after-day basis. The complete evidence
and the record of the suit were thenceforth to be transmitted to the Division Bench for thought
in conjunction with the sooner suit that had gone in appeal, so those conflicting decisions might
be avoided.

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises[5], a petition was filed, under Section 25
CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where
a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur
taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time
and that the suit was filed in Calcutta was within the nature of a cross-suit.

Transfer of Application as per the provision under section 406 of Code of Criminal Procedure

Section 406 of the Code of Criminal Procedure provides power to the Supreme Court to
transfer criminal cases and appeals unfinished in one high court to another high court or from
a criminal court subordinate to one high court to a different criminal court of equal or superior
jurisdiction subordinate to another high court. The Supreme Court will act under the section
only on the application of the Attorney General or of a party interested. If an application
under Section 406 of the Code of Criminal Procedure is dismissed, the Supreme Court may, if
it is of opinion that the application was trivial or vexing order the applicant to pay by way of
compensation to the respondent such total will not be exceeding Rs 1000.

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In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, Justice Krishna Iyer observed as follows:
“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the
central criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or simple handiness of legal services or like
mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the
point of read of public justice and its attendant surroundings, is needy if the Court is to exercise
its power of transfer; this is the cardinal principle though the circumstances may be myriad and
vary from case to case.

APPLICATION

An Application for transfer of Suit under Section 25 of the Code of Civil Procedure

Section 25 of the Code of Civil Procedure enables the Supreme Court to transfer any Case,
appeal or other proceedings from High Court or other civil court in one State to a High Court
or other civil court in any other State. This power may be exercised by the Supreme Court if it
is satisfied that an order under this Section is expedient for the ends of justice. Hence wide
powers are given to the Supreme Court to order a transfer if it feels that the ends of justice so
require.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:

The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure
must be the requirement of justice. It was held that the mere convenience of the parties or
anyone of them may not be enough for the exercise of power, but it should even be shown that
trial within the chosen forum can lead to denial of justice. The Court further held that if the
ends . of justice so demand and the transfer of the case is imperative, there should be no
hesitation to transfer the case. The right of the dominus litis to choose the forum and
consideration of plaintiff s convenience etc. cannot eclipse the requirement of justice. Justice
must be done at all costs; if necessary by the transfer of the case from" one court to another.

This provision has been most often invoked in matrimonial matters, and usually at the instance
of the wife. When the husband and wife are living separately and the husband files -a petition
for divorce or institutes other proceedings under the law relating to marriage and divorce at the
place where he is residing, which is usually the place where the parties last resided together,

12
the wife, who has often returned to her parental home, moves for transfer either on the ground
that she cannot afford to travel or that she cannot leave her child behind or that she faces threats
when she goes to defend the proceedings. The Court invariably takes a sympathetic view
towards the wife's plea for transfer, but this is net always the case.

Case laws on Transfer of Petition

In Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, the Court disallowed the wife's
plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into
account the following considerations:
(i) The husband was a medical practitioner and his absence from Mumbai would cause
inconvenience to his patients;
(ii) His old and ailing mother who. lived with him needed regular medical check-ups and
constant care;
(iii) The witnesses were principally from Mumbai; .
{iv} The wife had relatives in Mumbai with whom she could stay .whenever she went there-
for the case;
(v) The husband was ready to bear the expenses of travel and also the traveling expenses of the
escort.
(vi) Palanpur was well connected to Mumbai by train.

In Shiv Kumari Devendra Ojha Vs Ramesh Shitla Prasad Ojha, the Court disallowed a
lady's application for transfer of an application for grant of a succession certificate, from
Gujarat to U.P. Her main plea was that being a lady she was unable to travel from U.P. to
Gujarat. The Court disallowed the petition mainly on the ground that the respondent was ready
to pay" the traveling expenses. The Court further held. that if the petitioner had any difficulty
in engaging a counsel because of financial constraints, she could file an application to recover
the amounts paid for the same from the respondents, in the trial court at Gujarat.

A couple of problems have arisen in the context of the power of the Court to order transfer
under Section 25 CPC often the Court has felt that the parties would be Well advised to dissolve
their marriage by mutual consent, and sometimes .the parties themselves have to come to such
an understanding. In such a situation, the court has often permitted the parties to file a petition
for divorce by mutual consent.in the supreme Court itself.

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However, some Benches have taken the View that this cannot be done and that such a petition
can only be filed in the trial court. It is respectfully submitted that the Court is not justified in
relegating the parties to the trial court when both the parties are willing to dissolve. the marriage
by mutual consent. It is precisely in such situations that the power of the Court under Article
142 of the Constitution can come to the aid of parties, because "complete justice" is then done.
The requirement that the petition for divorce by mutual consent should be filed before the Court
of District Judge or the Family Court, is at best a procedural matter, and does not touch upon
the substantive rights of the parties.

Another problematic situation which arises sometimes is when the transfer of a case is sought
from the State of Jammu and Kashmir.
Code of Civil Procedure does not apply to the State and therefore the provisions of Section 25
of the Code of Civil Procedure also would not apply.

In Kiran Ramanlal Jani Vs Gulam kadar, .the petitioner had prayed. for transfer of a motor
accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in
the absence of any objection on behalf of the respondents and their non-appearance even after
service. It is, however, submitted that there has to be a sounder legal basis for such transfer.
When the party desires a transfer of a case from Gujarat to the State of Jammu and Kashmir,
the appropriate course would be to file a petition for special leave under Article 136 against the
order directing issue of summons, personal appearance, etc. Once the Court is seized of the
matter under Article 136 of the Constitution, it would have power under Article 142 to direct
transfer, in order to do complete justice.

A couple of other cases may now be noticed. On a petition under Section 25 of the Code of
Civil Procedure, a civil suit pending in the Court of the Subordinate Judge, Patna was
transferred to the Bombay High Court to be tried with another suit pending on the original side
of the Bombay High Court. Thereafter the suit in the Bombay High Court was decided and was
carried in appeal In Bihar State Food and Supplies Corporation v. Godrej Soaps (P) Ltd.
and Sons, a petition under Section 25 CPC was filed for re-transfer of the suit to the
Subordinate Judge at Patna on the ground that the purpose of transfer was over since the two
cases could not now be tried together. The Court disallowed the petition for transfer and
requested the learned Judge on the Original Side to frame the necessary issues in the suit within
six weeks and thereafter take evidence on a day-to-day basis. The entire evidence and the record

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of the suit were thereafter to be transmitted to the Division Bench for consideration along with
the earlier suit which had gone in appeal, so that conflicting decisions could be avoided.

In State of Assam vs Dr. Brojen Gogoi, the Supreme Court while setting aside an order of the
Bombay High Court granting anticipatory bail on the ground that the State of Assam was not
heard; directed transfer of the application for anticipatory bail to the Gauhati High Court on
the ground that the alleged offences could have been committed only within the territorial
jurisdiction of the Gauhati High Court and it was that High Court, which was the appropriate
forum to deal with an application for anticipatory bail. This case is an authority for the
proposition that the Court can act suo motu under Section 406 of CrPC, if it feels the interests
of justice so require."

C. Jurisdiction Of The Supreme Court To Withdraw And Transfer Cases Under Article
139-A Of The Constitution
Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts or, before two or more High Courts, and the
Supreme Court is satisfied on its own motion or on an application made by the Attorney
General for India or by a party to any such case, that such questions are substantial questions
of general importance Article 139-A(I) of the Constitution empowers the supreme Court to
'withdraw' the matters pending before the High Courts to itself and dispose of all the cases by
itself. This provision is often invoked when the constitutional validity. of a central legislation
is challenged. Article 139-A(2) empowers the Supreme Court, if it deems it expedient so to do
for the ends of justice, to transfer any case, appeal or other proceedings pending before any
High Court to any other High Court.
.
Before going to some illustrative examples of the exercise or refusal to exercise powers under
Article 139-A, it is worthwhile to notice the decision of the Supreme Court in Union Carbide
Corporation v. Union of India Here, in the context of a challenge to the settlement of the
Bhopal gas case [Union Carbide Corporation v. Union of India, (1989) 1 sce 674] the
withdrawal of the main civil suit and criminal proceedings to the Supreme Court was
challenged on the ground that the requirements of Article 139-A of the Constitution were not
satisfied. In rejecting the plea that the case could not have been so withdrawn, the Supreme
Court held that Article-139 did not exhaust its power of withdrawal and transfer, and that its
power under Article 136 and 142(I) were also available for the purpose.

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It is not always that the Court exercises its power to transfer merely because the constitutional
validity of a provision is already in question before it Thus in Vinod Chandra Chiman Lal
Shah v. Union of India, the Court was asked to transfer certain writ petitions pending in the
Gujarat High Court challenging the constitutional validity of the COFEPOSA and SAFEMA
on the ground that the said questions were under consideration before a bench of nine Hon'ble
Judges of the Supreme Court. Originally, the Supreme Court had stayed the proceedings in the
High Court. However, the writ petitioners. before the High Court gave an undertaking that they
would give up the ground based on the constitutional validity of the provisions, and the Court
accordingly rejected the prayer for transfer.

On the other hand, in Union of India v. Dr. M. Ismail Faruquil the Supreme Court received
a reference under Article 143 of the constitution from the President with regard to the Babri
Masjiel issue after the demolition of the Masjid. The Central Government had passed an
Ordinance for acquisition of the disputed land, which later became an Act. The validity of the
Ordinance and the Act were challenged. before a larger bench of High Court of Allahabad. In
view of the fact that there was a Presidential reference pending in the Supreme Court -and a
writ petition had also been filed in the Supreme Court challenging the validity of the Ordinance
and Act, the Court withdrew the writ petitions pending in the Allahabad High Court to itself.

But in Central Coat Fields v. State of M.P, the Court rejected the prayer for transfer of
petitions pending in various High Courts to itself though the points for determination were the
same as those pending before the Supreme Court. The Court held that it was open to the
petitioners to apply in the High Court in the pending writ petitions for interim relief in the same
manner as was prayed for before the Supreme Court and ordered that further hearings in the
writ petiti6n would remain stayed. It appeared that the main reason which weighed with the
Court in refusing the transfer was that the Court's own docket should not get crowded with a
large number of cases. It is, however, respectfully submitted that this is not an appropriate
course for the Court to adopt because each and every writ petitioner before the various High
Courts could still move intervention applications in the matter pending before the Supreme
Court on the ground that the decision of the Supreme Court would finally conclude their writ
petitions in the High Court.

A better course was adopted in Securities and Exchange Board of India vs Bombay Stock

16
Exchange Brokers Forum, where the Court while transferring some matters to itself, stayed
hearing on other petitions in the High Courts on similar issues, but granted liberty to apply for
intervention in the transferred cases; In Delhi Development Authority vs Skipper
Constructions the Supreme Court directed transfer of all cases regarding different properties
concerning the Skipper Construction company to itself.

in KV.Venkatapathi v.State a transfer petition was filed, by the petitioner under Article 139A
of the Constitution, with an application for' permission to file the transfer petition. The
petitioner who was the ex Advocate General of the State of Tamil Nadu and had been appointed
by the High Court as a Special Prosecutor, had averred that he was not provided the necessary
papers in the appeals filed by the Chief Minister of Tamil Nadu, Ms J. Jayalalitha. The Supreme
Court issued notice and stayed the hearing of the appeals after granting permission to file the
transfer petition. By its further order disposing of the transfer petition, the Court ordered
rehearing of the matter after all the documents were supplied to the petitioner.

Supreme Court Judgments on Transfer of Petition

A few recent cases under Section 406 CrPC may be noticed-

In Abiram Veer v. North Eastern Regional Agricultural Marketing Corporation Ltd, the
Supreme Court declined transfer of 10 cases under Section 138 of the Negotiable Instruments
Act pending before Courts at Gauhati. The court did not find sufficient reason to order transfer,
merely because it was alleged that the cause of action arose at Lucknow and that therefore the
Court at Lucknow could exercise jurisdiction. The Court held y that the question of jurisdiction
would have to be raised before the Court where the case is pending. The Court did not find the
petitioner's plea that the situation at Gauhati posed a danger to his life, as sufficient ground for
ordering transfer, as the same would apply to the other side also. The Court, however, left it
open to the petitioner to apply for exemption from personal appearance in cases where he made
the first appearance and directed that if such an application was made, the Magistrate concerned
would exempt him from personal appearance on the following conditions:-
1) The counsel on his behalf would be present in the court on all days when the cases are taken
up.
2) The petitioner will not dispute his identity.
3) The petitioner would be present in court when his presence is imperatively needed, such as,
the examination under Section 313 of the Criminal Procedure Code.

17
But in Neelam Kanwar Vs Devinder Singh Kanwar, the Court allowed the wife's petition
for transfer of a complaint filed by the husband's father under Section 500 IPC from Chandigarh
to Mumbai. The Court held that' even if it is assumed that the permanent place of the residence
of the respondent was Chandigarh and not Mumbai, though, the petition described him as
having a permanent residence at Mumbai, the fact was that the petitioner was a lady, and
therefore as a matter of convenience, a transfer to the. place where the lady was residing would
be preferred by the Court, unless it was shown that there were special reasons .not to do so.

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the
respondent under Section 138 of the Negotiable Instruments Act before the Court of the
Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the
Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the
same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of
the Hyderabad case to Chennai on the ground that parties in all cases were the same and the
offence is of the same nature though pertaining to different cheques. The Court allowed the
petition for transfer holding that the transfer prayed for could only be in the interests of justice
and for the convenience of conducting the trial and disposal of all the cases.

However, in Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for
transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to
Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of
a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the
case was possible and the accused persons need not have any cause for apprehension. The court
observed that the apprehension of not getting a fair and impartial trial is required to be
reasonable and not imaginary. The Court observed that no universal or hard and fast rules can
be prescribed for deciding the transfer petition, which always had to be decided on the basis of
the facts of each case. The Court also observed that the convenience of the parties, including
the witnesses to be produced at the trial was a relevant consideration, that convenience of the
parties does not necessarily' mean the convenience of the petitioner alone and that convenience
for the purpose of transfer means the convenience of the prosecution, other accused, the
witnesses and the larger interests of the, society.

PROCEDURE

Introduction

18
The judiciary has been paramount institution for determination of any legal dispute. The
judiciary has been a watch dog to keep an eye on the legislature and executive authorities to
control their arbitrary actions and to keep a check on their activities which may be either driven
by their whimsical or by any hidden interest. The judicial authorities are vested within various
courts and at many levels as deemed to be proper by the respective High courts. The Indian
judiciary has a huge extravagant burden on its shoulder of pendency. In a broader classification,
the trails could be separated in two classes namely-

1. Civil law and

2. Criminal law.

Civil Law

The Civil laws are the laws which relate to disputes between individuals, individual and a
company, individual and an organization, or organization against any organization. The scope
of the civil law is a wrong doer and against such wrong doing the court may award penalties
or cost to the wrong doer and compensation to the victim who has suffered any unwarranted
loss due to such behavior. In civil law, the burden of proof is leveled at the preponderance of
probability, which means that both the parties of the litigation have to make their best possible
effort to establish their case and then based on the level of prudence of the pleading the court
would determine the case.

In civil law a case is instituted by the plaintiff against the defendant and ends up with a
judgment. Either party who may be aggrieved by the judgment of the court may prefer and
appeal against the order passed by the court. The punitive action of the civil law would in the
form of compensation. The example of civil laws are Indian contract act, 1872, Civil procedure
Code 1908.

Criminal law

Criminal wrongs are those which possess the potentiality of damaging the society at large.
Generally, criminal acts are those acts which have an overall impact on the society and
influence a major share of the society with its occurrence. The criminal law covers all the
offences and crimes under different laws and statutes. The criminal case against an individual
may be instituted by a First information report (F.I.R) or by presenting a private complaint
against a person. Whenever a complaint is preferred to any magistrate he may after taking
cognizance and observing any substance in the complaint may issue necessary instruction for

19
further investigation and fact finding of the case. The burden of the proof in such criminal cases
lies on the prosecution which is here referred as the state to establish its case far beyond
reasonable doubt against the offender. In case if the prosecution fails to do that the benefit of
doubt would flow towards the accused. The party which may be dissatisfied by the judgment
of the court may approach the competent superior authority to file an appeal against the order
of trail court. The punitive consequence of criminal law would be fine or imprisonment of may
be even both the criminal court also have superior jurisdiction to order the offender to pay the
victim against his crime as under victim compensations scheme. The example of criminal laws
are Indian Penal Code, 1860, Criminal procedure code, 1973, Narcotic drugs and psychotropic
substance, 1985

Objective for transfer of cases in courts

The entire judiciary is viewed with utmost respect and with an expectation that the judiciary
would do very fair and equitable justice to the person coming before them or pleading for
genuine redressal of any complaint of grievance. The court should always maintain a fair view
that court should not only do fair justice but the justice should be pronounced in such a manner
that a clear message should be made to everyone that justice is made. The judiciary is the most
sanctified body to deliver justice and has always maintained a very strict view regarding
fairness in trail procedures and trail fairness. So in order to protect the reputation of the courts
and the maintain high order of moral standards between the members of judiciary the code of
Criminal Procedure and the civil procedure code have enough reasonable grounds to transfer
cases from one court to another court.

The main intention of delivering justice or to decide a matter is to address a public sentiment
although there are various provisions regarding appeal. But such practices would impart
tremendous pressure on the mechanism of judiciary and the judiciary would further be
burdened with more pendency and delayed justice to all which may consequently create more
dispassion and unrest about judicial processes. So to address all such burning issue the statutes
already provides certain provisions regarding the transfer of cases from one court of trail to
another court of trail.

The hierarchy of the courts is followed as per the table drawn below.

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Power of Civil courts to transfer cases

The civil procedure code, 1908 is a concise legislature to determine the litigation aspect and to
determine the course to be adopted for trial. Section 15 of the C. P. C, 1908 provides that the
every case should be filed in the lower court competent to try that matter. This avoids absurdity
regarding the jurisdiction of maintenance of claim and place of filing claim.

Section 22 of the C.P.C 1908- Power to transfer suits which may be instituted in more than
one Court.

When a trail is lying pending before a court and the same jurisdiction is shared by many other
territorial or other court the defendant who may have objection to the jurisdiction of the place
of trial of the court may after moving an application to all the relevant parties of the legislation
may be given with an opportunity to be heard and argue and then the court may determine the
merit of the case and order further instructions. In civil cases when the case is for obtain a
specific possession of a property it is preferred to file the case within jurisdiction of the court
under which the property or any other achievable of the defendant are available.

Section 23 of the C.P.C 1908- To what court permission lies.

This section of C. P. C 1908 deal with the provisional part used to exercise this right hand how
the application regarding such transfers be made and whom to be made with such applications.

21
As per the statute the application may be preferred to any court which is immediate superior to
the trial court or the appellant court of that trial court. Subjected to following circumstances: –

When the appellant court is same:- when the suit is to be shifted or transferred to court which
have same court of appeal or under same subordination such transfer application would be
preferred to appellant court.

When the appellant courts are different: – when both the courts of trial lies under different court
of appellant jurisdiction. Then the application would be preferred to the high court under which
both the courts are subordinate to. The High court after observing the substance of the
complaint would decide the application and dispose it off accordingly.

When both the trail court are under different High courts:- In a case where both the litigant
parties claim under the court which have different High court jurisdiction. Then such an
application shall be preferred to the High court which has jurisdiction over the court in which
the case was firstly instituted.

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Power of criminal courts to transfer cases

The Supreme Court is the highest court of criminal appeal but the right to prefer an appeal to
the Supreme Court lies in some exceptional cases. The original court of criminal appeal is the
High Court as per the Code of Criminal Procedure. The Supreme Court has the largest authority
regarding the administrative functions of all its subordinate court.

Section 406 Cr. P. C 1973 – Power of Supreme Court to transfer cases and appeals

The Supreme Court is vested with the widest discretionary power to make any such order to
transfer any specific case or appeal or any matter lying pending before one high court to another
high court to meet up the end of justice and satisfy the principle of fair justice. The application
to transfer such case from one High court to another high court would be moved by any person
who is under apprehension of any unfair action or he may not find proper justice for him or
Attorney General of India. The provision made under section 406 of Cr. P. C majorly relies
upon the discretion of the Supreme Court. The applicant is not under any obligation to establish
conclusively that in absence of this transfer the interest of justice regarding him would fail. The
applicant will have to reasonably substantiate his contentions regarding the application. The
Supreme Court is not only vested with the authority to transfer files form one High court to
another High Court. The Supreme Court also has authority to the transfer any case from one
court to another court which is in subordination to the Supreme Court. Any objection if arose
by the court under which the matter is lying pending. Although the trail court may ensure the
Supreme Court about maintaining the principle of fair and equity, but the Supreme Court would
take all reasonable measure to transfer that case to some other court which may be either to the
court of same competence of may be court lower or higher competence.

Section 407. Cr. P. C 1973- Power of High Court to transfer cases and appeals.

The high court is also vested with the similar authorities to transfer a case from one court of its
sub ordinance to another court of its sub ordinance or the high court may even the try the case
by itself. The following are the ground on which an application to transfer the case could be
made to the high court.

1. When the court could reasonably apprehend that the fairness of the trail would be
prejudiced by the trail if conducted with the same court which has been trying the case
currently.

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 2. When the high court is of the opinion that the trail of the case may involve decision of
some questions which are substantial question of law and could only be dealt by the
high court in expedite manner.

3. The High court may take into consideration of the convenience of the parties for such
to meet up the end of justice and towards the expedience of justice for both the parties.

The High court after receiving any such application from the applicant the court may even if
require conduct an enquiry and then decide whether such transfer is in the interest of justice or
it is filed with an intention to defeat the justice. If the grounds of filing such application are
found to be false, frivolous or vexatious the court would dismiss the application. The Attorney
general of the state may also file application of such transfer to the High court with an affidavit
which on oath would again affirm the contents of the application. The trail court can also refer
to the High court any such cases which may need transfer from one court to another to meet
the ends of justice.

Section 408. Cr.P.C – Power of Sessions Judge to transfer cases and appeals.

In sub ordinance to the High court the session court also have vested authority to transfer one
from one court to another under his jurisdiction within his session division. This order may be
made b y the court for better delivery of justice and settle the sentiment of the victim. An
application shall be preferred on following grounds:-

1. When the court is reasonably satisfied that the subordinate court is unable to deliver
justice to the aggrieved. The sessions court by his own accord may take all reasonable
measure for expedite delivery of justice by the court.

2. The application could be filed by the lower court to the sessions court which may
demand such transfer or by the own accord of the court. Or by the application moved
by the parties involved within that course, or the court may even consider the report of
the lower court which favors or recommends such transfer from o0ne court to another.
To deliver justice.

3. The applications which is made to the sessions court should be in consistence with the
provisions of 407 (3) (4) (5) (6) (7) and (9). Before deciding any such application of
transfer the copy of the application should be provided to the public prosecutor and

24
 with a reasonable opportunity to argue on the application filed by the applicant. If in
case this exercise is not performed in the same manner the application becomes void.
No further actions could take place from thereof.

Section 409 Cr. P .C Withdrawal of cases and appeals by Sessions Judges.

Further in section 409 Cr. P. C the Sessions judge is vested with additional administrative
functions regarding transfer of case from one court under his subordination to another court
under his subordination under following circumstances:-

1. The Sessions judge can withdraw cases and appeals from any of the judges under his
subordination. And after obtaining such transfer file from the assistant Sessions court
or from the Court of Chief Judicial Magistrate.

2. The Sessions judges also have authority to recall or withdraw any appeal which is lying
pending before any Add. Sessions judge. After obtaining such file from transfer the
Sessions court may order it to be made over to any other Add. Sessions judge.

 When any of such withdrawal affected under sub section 1 and 2 of section 409 Cr.P.C.
the sessions judge may personally keep the matter with himself and then further the
case would be tried in his court or may act in accordance to the provisions of this act.

Section 410 Cr.P.C Withdrawal of cases by Judicial Magistrates.

The Chief judicial magistrate or the Chief metropolitan magistrate are vested with the authority
to withdraw any case from any judicial magistrate either first class or second class which is in
subordination to him and may inquire into the substance of the trail conducted by the magistrate
subordinate to him or may even transfer the trail from that judicial magistrates court to his
court. In furtherance the Chief Judicial Magistrate can also authorize or further refer such
inquiry to any magistrate under his subordination.

Any judicial magistrate may under the light of section 192(2) of the Cr.P.C can enquire into
any case which is made over to him from any other judicial magistrate.

The grounds on which the cases can be transferred

The following are the grounds on which a case could be transferred from one court to another
court.

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1. To meet the ends of justice :- It is the utmost duty of the court to take all such measures
to meet up the ends of justice and to pronounce the judgment which should also send a
good message in the society that justice was not only done it was done with an impact
that it appears that justice is done. The court is the most trusted and sacred institution.
And every person holds a very high relative position and respect for court and its
decisions. So the courts have extra moral obligation to keep the spirit of trust and
confidence alive within this machinery. This ground to meet the ends of justice have a
vide connotations it could be easily understood that this authority would have high
degrees of discretionary powers. Which could be used in accordance with the factual
quantum to provide justice to all the subject litigants. The factual matrix of every trail
weather civil or criminal proceedings is quite different so in order to ascertain a pre-
managed situation for dealing may not ensure a fair trial or may even end up causing
irreparable loss to the interest of the litigants. Therefore the court has been vested with
such discretionary authority to determine such question regarding transfer of court.

2. As per the inquiry report of any superior judicial officer such as any Chief judicial
magistrate or any sessions judge the trail must not be conducted by a particular
magistrate or any other officer such a report shall also be deemed to be a valid ground
for such transfer of a case from one court to another.

3. The trail court deems it fit to be transferred from its purview or the determination of the
trail may involve such substantial question of law. Determining substantial question of
law far above its jurisdiction would render the complete trail fruitless.

4. The court have a limited jurisdiction over the subject matter of the dispute in such
limited or shared juridical issue the court trying the matter will have a liberty to transfer
the case to the court which have competent jurisdiction to try that matter conclusively
so that the complete trail could not be failed because of lack of complete jurisdiction.

5. Mutual collision between the party and other judicial officer. The possibility of
corruption is no stranger to the judicial fraternity. in such cases to avoid the failure of
interest of the actual aggrieved party between the litigants the court provides reasonable
opportunity to the party which may have such apprehension.

6. The judicial officer being engaged or involved in the litigation by some or the other. In
such scenario the litigant parties have complete freedom to approach the authorities for
avoiding any collision of interest when capitalized through any characterized persons.

26
 7. The judicial officer may be made as witness. If any judicial person has been made as a
witness to any trail this surfaces the end of the ability of that person to conduct the trail.
Such actions may append breach of ordinary prudence of fair trail and may impeach the
interest of justice.

8. When the court or any judicial authority is working in contravention to the principles
of natural justice. Any if such breach when reported to the authority continues to happen
the aggrieved party would be free to take shelter for preferring transfer of case.

9. Any mutual disturbance or unethical relationship between the lawyer or the judicial
officer may also prefer an application of transfer of case from one court to another.

In the recent judgement of the apex court: -

Santhini v. Vijaya Venketesh1 Dipak Misra, CJI. [For himself and Khanwilkar, J.] A two-
Judge Bench in Krishna Veni Nagam v. Harish Nagam1, while dealing with transfer petition
seeking transfer of a case instituted under Section 13 of the Hindu Marriage Act, 1955 (for
brevity, ‘the 1955 Act’) pending on the file of IInd Presiding Judge, Family Court, Jabalpur,
Madhya Pradesh to the Family Court, Hyderabad, Andhra 1 (2017) 4 SCC 150 Pradesh, took
note of the grounds of transfer and keeping in view the approach of the Court to normally allow
the transfer of the proceedings having regard to the convenience of the wife, felt disturbed
expressing its concern to the difficulties faced by the litigants travelling to this Court and,
accordingly, posed the question whether there was any possibility to avoid the same. It also
took note of the fact that in the process of hearing of the transfer petition, the matrimonial
matters which are required to be dealt with expeditiously are delayed.

That impelled the Court to pass an order on 09.01.2017 which enumerated the facts
including the plight asserted by the wife, the concept of territorial jurisdiction under Section
19 of the 1955 Act, and reflected on the issues whether transfer of a case could be avoided and
alternative mode could be thought of. Dwelling upon the said aspects, the Court articulated:-
“In these circumstances, we are prima facie of the view that we need to consider whether we
could pass a general order to the effect that in case where husband files matrimonial
proceedings at place where wife does not reside, the court concerned should entertain such
petition only on the condition that the husband makes appropriate deposit to bear the expenses

1
TRANSFER PETITION (CIVIL) NO. 422 OF 2017

27
of the wife as may be determined by the Court. The Court may also pass orders from time to
time for further deposit to ensure that the wife is not handicapped to defend the proceedings.
In other cases, the husband may take proceedings before the Court in whose jurisdiction the
wife resides which may lessen inconvenience to the parties and avoid delay. Any other option
to remedy the situation can also be considered.”

As the narration would exposit, the pivotal concern of the Court was whether an order
could be passed so as to provide a better alternative to each individual who is compelled to
move this Court. 2. The observation made in Anindita Das v. Srijit Das to the effect that on
an average at least 10 to 15 transfer petitions are on board of each Court on each admission day
was noticed. The learned Judges apprised themselves about the observations made in Mona
Aresh Goel v. Aresh Satya Goel, Lalita A. Ranga v. Ajay Champalal Ranga, Deepa v.
Anil Panicker , Archana Rastogi v. Rakesh Rastogi , Leena Mukherjee v. Rabi Shankar
Mukherjee, Neelam Bhatia v. Satbir Singh Bhatia, Soma Choudhury v. Gourab
Choudhaury, Rajesh Rani v. Tej Pal, Vandana Sharma v. Rakesh Kumar Sharma and
Anju Ohri v. Varinder Ohri which rest on the principle of “expedient for ends of justice” to
transfer the proceedings. It 2 (2006) 9 SCC 197 3 (2000) 9 SCC 255 4 (2000) 9 SCC 355 5
(2000) 9 SCC 441 6 (2000) 10 SCC 350 7 (2002) 10 SCC 480 8 (2004) 13 SCC 436 : (2006)
1 SCC (Cri) 323 9 (2004) 13 SCC 462 : (2006) 1 SCC (Cri) 341 10 (2007) 15 SCC 597 11
(2008) 11 SCC 768 12 (2007) 15 SCC 556 also adverted to Premlata Singh v. Rita Singh13
wherein this Court had not transferred the proceedings but directed the husband to pay for
travelling, lodging and boarding expenses of the wife and/or person accompanying her for each
hearing.

The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad The
two-Judge Bench, after hearing the learned counsel for the parties, the learned Additional
Solicitor General and the learned Senior Counsel who was requested to assist the Court, made
certain references to the doctrine of ‘forum non conveniens” and held that it can be applied to
matrimonial proceedings for advancing the interest of justice. The learned Additional Solicitor
General assisting the Court suggested about conducting the proceedings by videoconferencing.
In that context, it has been held:- “14. One cannot ignore the problem faced by a husband if
proceedings are transferred on account of genuine difficulties faced by the wife. The husband
may find it difficult to contest proceedings at a place which is convenient to the wife. Thus,
transfer is not always a solution acceptable to both the parties. It may be appropriate that
available technology of videoconferencing is used where both the parties have equal difficulty

28
and there is no place which is convenient to both the parties. We understand that in every
district in the country videoconferencing is now available. In any case, wherever such facility
is available, it ought to be fully utilised and all the High Courts ought to 13 (2005) 12 SCC 277
14 (2000) 10 SCC 277 issue appropriate administrative instructions to regulate the use of
videoconferencing for certain category of cases. Matrimonial cases where one of the parties
resides outside court’s jurisdiction is one of such categories.

Wherever one or both the parties make a request for use of videoconferencing,
proceedings may be conducted on videoconferencing, obviating the needs of the party to appear
in person. In several cases, this Court has directed recording of evidence by video conferencing.
The advancement of technology ought to be utilised also for service on parties or receiving
communication from the parties. Every District Court must have at least one e-mail ID.
Administrative instructions for directions can be issued to permit the litigants to access the
court, especially when litigant is located outside the local jurisdiction of the Court. A
designated officer/manager of a District Court may suitably respond to such e-mail in the
manner permitted as per the administrative instructions. Similarly, a manager/information
officer in every District Court may be accessible on a notified telephone during notified hours
as per the instructions.

These steps may, to some extent, take care of the problems of the litigants. These
suggestions may need attention of the High Courts.” [Emphasis added] 4. After so stating, the
two-Judge Bench felt the need to issue directions which may provide alternative to seeking
transfer of proceedings on account of inability of a party to contest proceedings at a 15 State
of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601 : 2003 SCC (Cri) 815; Kalyan Chandra
Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284 : 2005 SCC (Cri) 705; Budhadev Karmaskar (4)
v. State of W.B., (2011) 10 SCC 283 : (2012) 1 SCC (Cri) 285; Malthesh Gudda Pooja v. State
of Karnataka, (2011) 15 SCC 330 : (2014) 2 SCC (Civ) 473 place away from their ordinary
residence which will eventually result in denial of justice. The safeguards laid down in the said
judgment are:- “(i) Availability of videoconferencing facility. (ii) Availability of legal aid
service. (iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC. (iv) E-
mail address/phone number, if any, at which litigant from outstation may communicate.” Be it
stated, the Court took note of the spirit behind the orders of this Court allowing the transfer
petitions filed by wives and opined that the Court almost mechanically allows the petitions so
that they are not denied justice on account of their inability to participate in proceedings
instituted at a different place. It laid stress on financial or physical hardship. It referred to the

29
authorities in the constitutional scheme that provide for guaranteeing equal access to justice16,
power of the State to make special provisions for women and children, duty to uphold the 16
17 dignity of women18 and various steps that have been taken in the said direction19. 5. In the
said case, the Court transferred the case as prayed for and further observed that it will be open
to the transferee court to conduct the proceedings or record the evidence of the witnesses who
are unable to appear in court by way of videoconferencing. The aforesaid decision was brought
to the notice of the two-Judge Bench in the instant case by the learned counsel appearing for
the respondent who advanced his submission that there is no need to transfer the case and the
parties can be directed to avail the facility of videoconferencing.

The two-Judge Bench, after referring to the Statement of Objects and Reasons of the
Family Courts Act, 1984 (for brevity, ‘the 1984 Act’), various provisions of the said Act,
Sections 22, 23 and 26 of the 1955 Act, Rules 2, 3 and 4 of Order XXXIIA which were inserted
by the 1976 amendment to the Code of Civil Procedure (for short, “the CPC”), the concept of
reconciliation, the role of the counsellors in the Family Court and the principle of confidence
and confidentiality, held:- 18 19 “19. To what extent the confidence and confidentiality will be
safeguarded and protected in video conferencing, particularly when efforts are taken by the
counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution
of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody
matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing,
if not impossible, to maintain confidentiality. It has also to be noted that the footage in video
conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty-
holders referred to above are not meant to be part of the record. All that apart, in reconciliatory
efforts, physical presence of the parties would make a significant difference. Having regard to
the very object behind the establishment of Family Courts Act, 1984, to Order XXXIIA of the
Code of Civil Procedure and to the special provisions introduced in the Hindu Marriage Act
under Sections 22, 23 and 26, we are of the view that the directions issued by this Court in
Krishna Veni Nagam (supra) need reconsideration on the aspect of video conferencing in 12
matrimonial disputes.” Being of this view, it has referred the matter to be considered by a larger
Bench. That is how the matter has been placed before us. 6. We have heard Mr. V.K.
Sidharthan, learned counsel for the petitioner and Mr. Rishi Malhotra, learned counsel for the
respondent. We have also heard Mr. Ajit Kumar Sinha, learned senior counsel who has been
requested to assist the Court. 7. Before we refer to the scheme under the 1984 Act and the 1955

30
Act, we think it apt to refer to the decisions that have been noted in Krishna Veni Nagam
(supra). In Mona Aresh Goel (supra), the three- Judge Bench was dealing with the transfer of
the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The
prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that
the wife had no independent income and her parents were not in a position to bear the expenses
of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various
inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The
Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi. In
Lalita A. Ranga (supra), the Court, taking note of the fact that the husband had not appeared
and further appreciating the facts and circumstances of the case, thought it appropriate to
transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a
small child and she was at Jaipur and it was thought that it would be difficult for her to go to
Bombay to contest the proceedings from time to time. In Deepa’s case, the stand of the wife
was that she was unemployed and had no source of income and, on that basis, the prayer of
transfer was allowed. In Archana Rastogi (supra), the Court entertained the plea of transfer and
held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court
of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and,
accordingly, transferred the case. Similarly, in Leena Mukherjee (supra), the prayer for transfer
was allowed. In Neelam Bhatia (supra), the Court declined to transfer the case and directed the
husband to bear the to-and-fro travelling expenses of the wife and one person accompanying
her by train whenever she actually appeared before the Court. In Soma Choudhury (supra),
taking into consideration the difficulties of the wife, the proceedings for divorce were
transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family
Court at Alipore (West Bengal). In Anju Ohri (supra), the Court, on the foundation of the
convenience of the parties and the interest of justice, allowed the transfer petition preferred by
the wife. In Vandana Sharma (supra), the Court, taking note of the fact that the wife had two
minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to
transfer the case and, accordingly, so directed. 8. Presently, we think it condign to advert in
detail as to what has been stated in Anindita Das (supra). The stand of the wife in the transfer
petition was that she had a small child of six years and had no source of income and it was
difficult to attend the court at Delhi where the matrimonial proceedings were pending. The
two-Judge Bench referred to some of the decisions which we have already referred to and also
adverted to Ram Gulam Pandit v. Umesh J. Prasad and Rajwinder Kaur v. Balwinder
Singh and opined that all the authorities are based on the facts of the respective cases and they

31
do not lay down any particular law which operates as a precedent. Thereafter, it noted that
taking advantage of the leniency shown to the ladies by this Court, number of transfer petitions
are filed by women and, therefore, it is required to consider each petition on merit. Then, the
Court dwelled upon the fact situation and directed that the husband shall pay all travel and stay
expenses to the wife and her companion for each and every occasion whenever she was
required to attend the Court at Delhi. From the aforesaid decision, it is quite vivid that the Court
felt that the transfer petitions are to be considered on their own merits and not to be disposed
of in a routine manner.

Having noted the authorities relating to transfer of matrimonial disputes, we may refer to
Section 25 of the CPC which reads as follows:- “Section 25. Power of Supreme Court to
transfer suits, etc.-

(1) On the application of a party, and after notice to the parties, and after hearing such of them
as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this
section is expedient for the ends of 20 21 justice, direct that any suit, appeal or other
proceedings be transferred from a High Court or other Civil Court in one State to a High Court
or other Civil Court in any other State.

(2) Every application under this section shall be made by motion which shall be supported by
an affidavit.

(3) The court to which such suit, appeal or other proceeding is transferred shall, subject to any
special directions in the order of transfer, either re-try it or proceed from the stage at which it
was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion
that the application was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such sum, not exceeding two
thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section
shall be the law which the court in which the suit, appeal or other proceeding was originally
instituted ought to have applied to such Suit, appeal or proceeding.”.

32
Order XLI Rule 2 of the Supreme Court Rules, 2013 which deals with the application for
transfer under Article 139A(2) of the Constitution and Section 25 of the CPC is as follows:-

“1. Every petition under article 139A(2) of the Constitution or Section 25 of the Code of Civil
Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts and
particulars of the case, the name of the High Court or other Civil Court in which the case is
pending and the grounds on which the transfer is sought. The petition shall be supported by an
affidavit.

2. The petition shall be posted before the Court for preliminary hearing and orders as to issue
of notice. Upon such hearing the Court, if satisfied that no prima facie case for transfer has
been made out, shall dismiss the petition and if upon such hearing the Court is satisfied that a
prima facie case for granting the petition is made out, it shall direct that notice be issued to the
parties in the case concerned to show cause why the case be not transferred. A copy of the
Order shall be transmitted to the High Court concerned.

3. The notice shall be served not less than four weeks before the date fixed for the final hearing
of the petition. Affidavits in opposition shall be filed in the Registry not later than one week
before the date appointed for hearing and the affidavit in reply shall be filed not later than two
days preceding the day of the hearing of the petition. Copies of affidavits in opposition and in
reply shall be served on the opposite party or parties and the affidavits shall not be accepted in
the Registry unless they contain an endorsement of service signed by such party or parties.

4. The petition shall thereafter be listed for final hearing before the Court.

5. Save as otherwise provided by the rules contained in this Order the provisions of other orders
(including Order LI) shall, so far as may be, apply to petition under this Order.” The purpose
of referring to the same is that this Court has been conferred with the power by the Constitution
under Article 139A(2) to transfer the cases and has also been conferred statutory jurisdiction
to transfer the cases. The Rules have been framed accordingly.

The Court has the power to allow the petition seeking transfer or to decline the prayer and
indubitably, it is on consideration of the merits of the case and satisfaction of the Court on that
score. Having stated thus, it is necessary to appreciate the legistative purpose behind the 1984
Act. The Family Courts have been established for speedy settlement of family disputes. The
Statement of Objects and Reasons reads thus:- “Statement of Objects and Reasons Several
associations of women, other organizations and individuals have urged, from time to time, that

33
Family Courts be set up for the settlement of family disputes, where emphasis should be laid
on conciliation and achieving socially desirable results and adherence to rigid rules of
procedure and evidence should be eliminated.

The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes
concerning the family the court ought to adopt an approach radically different from that
adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement
before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to
provide for a special family. However, not much use has been made by the courts in adopting
this conciliatory procedure and the courts continue to deal with family disputes in the same
manner as other civil matters and the same adversary approach prevails. The need was,
therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family
disputes.

2. The Bill inter alia, seeks to—

(a) provide for establishment of Family Courts by the State Governments;

(b) make it obligatory on the State Governments to set up a Family Court in every city or town
with a population exceeding one million;

(c) enable the State Governments to set up, such courts, in areas other than those specified in
(b) above.

(d) exclusively provide within the jurisdiction of the Family Courts the matters relating to—

(i) matrimonial relief, including nullity of marriage, judicial separation, divorce,

restitution of conjugal rights, or declaration as to the validity of marriage or as to the
matrimonial status of any person;

(ii) the property of the spouses or of either of them;

(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the custody of any minor;

(v) maintenance, including proceedings under Chapter IX of the Code of Criminal

Procedure;

34
(e) Make it obligatory on the part of the Family Court to endeavour, in the first instance to
effect a reconciliation or a settlement between the parties to a family dispute. During this stage,
the proceedings will be informal and rigid rules of procedure shall not apply;

(f) provide for the association of social welfare agencies, counselors, etc., during conciliation
stage and also to secure the service of medical and welfare experts;

(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right,
to be represented by legal practitioner. However, the court may, in the interest of justice, seek
assistance of a legal expert as amicus curiae,

(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal
effectively with a dispute;

(i) provide for only one right of appeal which shall lie to the High Court.

The Bill seeks to achieve the above objects.” The preamble of the 1984 Act provides for the
establishment of Family Courts with a view to promote conciliation in, and secure speedy
settlement of disputes relating to marriage and family affairs and for matters connected
therewith. Presently, we may recapitulate how this Court has dealt with the duty and
responsibility of the Family Court or a Family Court Judge. In Bhuwan Mohan Singh v.
Meena and others, the three-Judge Bench referred to the decision in K.A. Abdul Jaleel v.
T.A. Shahida and laid stress on securing speedy settlement of disputes relating to marriage
and family affairs. Emphasizing on the role of the Family Court Judge, the Court in Bhuwan
Mohan Singh (supra) expressed its anguish as the proceedings before the family court had
continued for a considerable length of time in respect of application filed under Section 125 of
the Code of Criminal Procedure (CrPC).

The Court observed:- 22 23 “It has come to the notice of the Court that on certain occasions
the Family Courts have been granting adjournments in a routine manner as a consequence of
which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When
such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is
expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive
issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not
mean that the Family Courts should show undue haste or impatience, but there is a distinction
between impatience and to be wisely anxious and conscious about dealing with a situation.

35
A Family Court Judge should remember that the procrastination is the greatest assassin of the
lis before it. It not only gives rise to more family problems but also gradually builds unthinkable
and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left.
The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory
tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be
alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed
it to grow.” And again: “We hope and trust that the Family Court Judges shall remain alert to
this and decide the matters as expeditiously as possible keeping in view the Objects and
Reasons of the Act and the scheme of various provisions pertaining to grant of maintenance,
divorce, custody of child, property disputes, etc.”

The said passage makes it quite clear that a Family Court Judge has to be very sensitive
to the cause before it and he/she should be conscious about timely delineation and not
procrastinate the matter as delay has the potentiality to breed bitterness that eventually corrodes
the emotions. The Court has been extremely cautious while stating about patience as a needed
quality for arriving at a settlement and the need for speedy settlement and, if not possible,
proceeding with meaningful adjudication. There must be efforts for reconciliation, but the time
spent in the said process has to have its own limitation.

Harita Sunil Parab v. State of NCT of Delhi & Ors.

Date of Judgment: March 28, 2018

In the present case, the applicant sought transfer of two F.I.R. registered in Delhi and
Ghaziabad respectively to the Court of competent jurisdiction at Mumbai, Maharashtra. The
petitioner in the case alleged that she is a permanent resident of Mumbai and was finding it
difficult to pursue matters in Delhi as her professional engagements in Mumbai were also
suffering because of the same. On the other hand, the respondent husband opposed the transfer
petition contending that the accused and the prosecution witnesses were situated in Delhi and
if the petition is allowed then his professional engagements would be hindered.

Bench’s verdict

36
  While deciding the aforesaid transfer petition, the Three-Judge Bench of the Supreme
Court made reference to Supreme Court’s verdict in the case of Gurcharan Das
Chadha vs. State of Rajasthan, wherein dealing with the issue for transfer of a case, it
was observed that 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 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.

 The Court in the case opined that 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.

 That 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.

 That convenience of the parties does not mean the convenience of the petitioner
alone who approaches the court on misconceived notions of apprehension.

 That convenience for the purposes of transfer means the convenience of the
prosecution, other accused, the witnesses and the larger interest of the society.

In view of the aforesaid observations and precedents, the Supreme Court rejected the transfer
petitions.

37
JUDGEMENTS:

KRISHNA VENI NIGAM V. HARISH NIGAM (2014)

1. This transfer petition has been filed for transfer of Case No.179A/2013 u/s 13 of the Hindu
Marriage Act, 1955 (the Act) titled “Harish Nagam vs. Krishna Veni Nagam” pending on the
file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court
Hyderabad, Andhra Pradesh.

2. Case of the petitioner-wife is that she was married to the respondent- husband in the year
2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in her
in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical
torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of conjugal rights which was later
on got dismissed as withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while
the petitioner has filed a domestic violence case at Hyderabad. Since the petitioner-wife, along
with her minor daughter, is living with her parents, she cannot undertake long journey and
contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat
to her security in attending proceedings at Jabalpur.

4. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter
has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed:

“This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of
proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at
Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute
hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage
took place at Hyderabad. The petitioner has to look after her minor daughter who is living with
her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature
could be filed at the place where the marriage is solemnized or the respondent, at the time of
the presentation of the petition, resides or where the parties to the marriage last resided together
or where the wife is residing on the date of the presentation of the petition, in case she is the
petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides. This

38
Court is flooded with petitions of this nature and having regard to the convenience of the wife
transfer is normally allowed. However, in the process the litigants have to travel to this Court
and spend on litigation. Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great
hardship to the litigants who have to come to this Court. Moreover in this process, the
matrimonial matters which are required to be dealt with expeditiously are delayed. In these
circumstances, we are prima facie of the view that we need to consider whether we could pass
a general order to the effect that in case where husband files matrimonial proceedings at place
where wife does not reside, the court concerned should entertain such petition only on the
condition that the husband makes appropriate deposit to bear the expenses of the wife as may
be determined by the Court. The Court may also pass orders from time to time for further
deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the
husband may take proceedings before the Court in whose jurisdiction the wife resides which
may lessen inconvenience to the parties and avoid delay. Any other option to remedy the
situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney
General who may depute some law officer to assist this Court.

List the matter on 31st January, 2017.

We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A
set of papers may be furnished to the amicus.” (Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide a better alternative to
each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the present nature are being
filed in this Court and are being mechanically allowed. Similar observation was made by this
Court more than 10 years ago in Anindita Das v. Srijit Das[1] “…On an average at least 10 to
15 transfer petitions are on board of each court on each admission day.” It has also been
observed in a number of cases that in absence of any male member being available to
accompany the wife who is party to matrimonial proceedings to a different place, it may render
it “expedient for ends of justice” to transfer proceedings[2].

8. Of course in some cases, it was observed that instead of proceedings being transferred, the
husband should pay travel, lodging and boarding expenses of the wife and/or person

39
accompanying for each hearing[3]. This trend has also been followed in other matrimonial
disputes, including guardianship dispute, etc.[4]

9. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being
almost mechanically allowing is that they are not denied justice on account of their inability to
participate in proceedings instituted at a different place on account of difficulty either on
account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing
equal access to justice[5], power of the State to make special provisions for women and
children[6] and duty to uphold the dignity of women[7]. Various steps have been taken in this
direction[8].

10. As noted in the Order dated 9th January, 2017 quoted above, Section 19 of the Act permits
proceedings to be filed not only at a place where the wife resides but also at place where
marriage is solemnized or the place where the parties last resided together. It is mostly in the
said situations that the wife has hardship in contesting proceedings. At the same time, under
the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction
of court is statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae.
Learned amicus has suggested that Section 19 of the Act should be interpreted to mean that the
jurisdiction at the place other than where wife resides being available only at the option of the
wife or that such jurisdiction will be available in exceptional cases where the wife is employed
and the husband is unemployed or where the husband suffers from physical or other handicap
or is looking after the minor child. Even though we are unable to give such interpretation in the
face of plain language of statute to the contrary and it is for the legislature to make such suitable
amendment as may be considered necessary, we are certainly inclined to issue directions in the
interest of justice consistent with the statute.

12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to
give some directions to meet the situation. He submitted that paramount consideration in
dealing with the issue ought to be the interest of justice and not mere convenience of the parties.
Thus, where husband files a petition at a place away from the residence of the wife, the husband
can be required to bear travel and incidental expenses of the wife, if it is so considered
appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in
making the deposit, proceedings can be conducted by video conferencing. At least one court
room in every district court ought to be equipped with the video conferencing facility. The

40
interest of the minor child has also to be kept in mind along with the interest of the senior
citizens whose interest may be affected by one of the parties being required to undertake trips
to distant places to face the proceedings. Protracted litigation ought to be avoided by better
management and coordination so that number of adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may also refer to the doctrine
of forum non conveniens which can be applied in matrimonial proceedings for advancing
interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay
proceedings at a forum which is considered not to be convenient and there is any other forum
which is considered to be more convenient for the interest of all the parties at the ends of justice.
In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd.[9] this Court observed:
“19. In Spiliada Maritime [10]case the House of Lords laid down the following principle:

“The fundamental principle applicable to both the stay of English proceedings on the ground
that some other forum was the appropriate forum and also the grant of leave to serve
proceedings out of the jurisdiction was that the court would choose that forum in which the
case could be tried more suitably for the interest of all the parties and for the ends of justice.”
The criteria to determine which was a more appropriate forum, for the purpose of ordering stay
of the suit, the court would look for that forum with which the action had the most real and
substantial connection in terms of convenience or expense, availability of witnesses, the law
governing the relevant transaction and the places where the parties resided or carried on
business. If the court concluded that there was no other available forum which was more
appropriate than the English court, it would normally refuse a stay. If, however, the court
concluded that there was another forum which was prima facie more appropriate, the court
would normally grant a stay unless there were circumstances militating against a stay. It was
noted that as the dispute concerning the contract in which the proper law was English law, it
meant that England was the appropriate forum in which the case could be more suitably tried.”
Though these observations have been made in the context of granting anti suit injunction, the
principle can be followed in regulating the exercise of jurisdiction of the court where
proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more
than one court has jurisdiction, court can determine which is the convenient forum and lay
down conditions in the interest of justice subject to which its jurisdiction may be availed[11].

14. One cannot ignore the problem faced by a husband if proceedings are transferred on account
of genuine difficulties faced by the wife. The husband may find it difficult to contest

41
proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution
acceptable to both the parties. It may be appropriate that available technology of video
conferencing is used where both the parties have equal difficulty and there is no place which
is convenient to both the parties. We understand that in every district in the country video
conferencing is now available. In any case, wherever such facility is available, it ought to be
fully utilized and all the High Courts ought to issue appropriate administrative instructions to
regulate the use of video conferencing for certain category of cases. Matrimonial cases where
one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one
or both the parties make a request for use of video conference, proceedings may be conducted
on video conferencing, obviating the needs of the party to appear in person. In several cases,
this Court has directed recording of evidence by video conferencing[12].

15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is
ignorance about availability of suitable legal services. Legal Aid Committee of every district
ought to make available selected panel of advocates whose discipline and quality can be
suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought
to be notified on the websites of the District Legal Services Authorities/State Legal Services
Authorities/National Legal Services Authority. This may enhance access to justice consistent
with Article 39A of the Constitution.

16. The advancement of technology ought to be utilized also for service on parties or receiving
communication from the parties. Every district court must have at least one e-mail ID.
Administrative instructions for directions can be issued to permit the litigants to access the
court, especially when litigant is located outside the local jurisdiction of the Court. A
designated officer/manager of a district court may suitably respond to such e-mail in the
manner permitted as per the administrative instructions. Similarly, a manager/ information
officer in every district court may be accessible on a notified telephone during notified hours
as per the instructions. These steps may, to some extent, take care of the problems of the
litigants. These suggestions may need attention of the High Courts.

17. We are thus of the view that it is necessary to issue certain directions which may provide
alternative to seeking transfer of proceedings on account of inability of a party to contest
proceedings at a place away from their ordinary residence on the ground that if proceedings
are not transferred it will result in denial of justice.

42
18. We, therefore, direct that in matrimonial or custody matters or in proceedings between
parties to a marriage or arising out of disputes between parties to a marriage, wherever the
defendants/respondents are located outside the jurisdiction of the court, the court where
proceedings are instituted, may examine whether it is in the interest of justice to incorporate
any safeguards for ensuring that summoning of defendant/respondent does not result in denial
of justice. Order incorporating such safeguards may be sent along with the summons. The
safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.

19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted
above in the Order of this Court dated 9th January, 2017. However, in the present case since
the matter is pending in this Court for about three years, we are satisfied that the prayer for
transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013
under Section 13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam” pending on the
file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to
the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee
court may explore the possibility of an amicable settlement through mediation. It will be open
to the transferee court to conduct the proceedings or record evidence of the witnesses who are
unable to appear in court by way of video conferencing. Records shall be sent by court where
proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order
be sent to all the High Courts for appropriate action.

21. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram
N.S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior
Advocate.

21. The transfer petition is disposed of accordingly.

43
ZAHIRA HABIBULLAH SHEIKH & ANR VS STATE OF GUJARAT & ORS (2006)

The case at hand immediately brings into mind two stanzas (14 and 18) of Eighth Chapter of
Manu Samhita dealing with role of witnesses. They read as follows:

"Stanza 14 "Jatro dharmo hyadharmena Satyam Jatranrutenacha Hanyate prekshyamananam

Hatastrata Sabhasadah"

(Where in the presence of Judges "dharma" is overcome by "adharma" and "truth" by

"unfounded falsehood", at that place they (the Judges) are destroyed by sin) Stanza 18
"Padodharmasya Kartaram Padah sakshinomruchhati Padah sabhasadah sarban pado
rajanmruchhati"

(In the adharma flowing from wrong decision in a Court of law, one fourth each is attributed
to the person committing the adharma, witness, the judges and the ruler".) This case has its
matrix in an appeal filed by Zahira Habibullah hereinafter referred to as 'Zahira and Another
namely, Teesta Setelwad' and another appeal filed by the State of Gujarat. In the appeals filed
before this Court, the basic focus was on the absence of an atmosphere conducive to fair trial.
Zahira who was projected as the star witness made a grievance that she was intimidated,
threatened and coerced to depart from the truth and to make statement in Court which did not
reflect the reality. The trial Court on the basis of the statements made by the witnesses in Court
directed acquittal of the accused persons. Before the Gujarat High Court an application
under Section 391 of the Code of Criminal Procedure, 1973 (in short the 'Code') highlighting
the necessity for accepting additional evidence was filed. The foundation was the statement
made by Zahira. The High Court did not accept the prayer and that is why the appeals came to
be filed in this Court. By judgment dated 12th April, 2004 in Zahira Habibullah Sheikh & Anr.
v. State of Gujarat and Ors. [(2004) 4 SCC 158], the following directions were given: "75.
Keeping in view the peculiar circumstances of the case, and the ample evidence on record,
glaringly demonstrating subversion of justice delivery system no congeal and conducive
atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the
jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to
fix up a Court of Competent jurisdiction.

78. Since we have directed re-trial it would be desirable to the investigating agency or those
supervising the investigation, to act in terms of Section 173(8) of the Code, as the
circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed

44
to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the
circumstances warrant.

79. Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors
any direction from the Court as such, it is open to the police to conduct proper investigation,
even after the Court took cognizance of any offence on the strength of a police report earlier
submitted."

A review petition (Zahira' Habibulla H. Sheikh and Anr. V. State of Gujarat and Ors. (2004 (5)
SCC 353) was filed by the State of Gujarat which was disposed of by order dated 7th May,
2004.

While the trial was on before a Court in Maharashtra pursuant to this Court's direction, it
appears Zahira gave a press statement in the presence of some government officials that what
she had stated before the trial Court in Gujarat earlier was correct. A petition was filed before
this Court alleging that Zahira's statement was nothing but contempt of this Court. At a press
conference held on 3.11.2004 few days before the scheduled appearance of the witnesses in the
trial, she had changed her version, disowned the statements made in this Court, and before
various bodies like National Human Rights Commission. Considering the petition filed orders
were passed on 10.1.2005 and subsequently on 21.2.2005, giving directions which read as
follows:

Order dated 10.1.2005 Having heard learned counsel for the parties, we are of the considered
view that a detailed examination is necessary as to which version of Zahira Habibullah Sheikh
is a truthful version. It is necessary to do so because various documents have been placed to
show that she had made departure from her statements/stands at different points of time.
Allegations are made by Mr. P.N.Lekhi, learned senior counsel appearing for Zahira
Habibullah Sheikh that she was being threatened, coerced, induced and/or lured by Teesta
Setalvad. On the contrary, learned counsel appearing for Teesta Setalvad submits that she was
being threatened, coerced, lured or induced by others to make statements or adopt stands
contrary to what she had stated/adopted earlier. In this delicate situation, the appropriate course
would be to direct an inquiry to be conducted to arrive at the truth. We direct the Registrar
General of this Court to conduct the inquiry and submit a report to this Court within three
months. The Registrar General shall indicate in the report

45
(a) if Zahira Habibullah Sheikh was in any manner threatened, coerced, induced and/or in any
manner pressurised to depose/make statement(s) in any particular way, by any person or
persons, and (b) if the answer to (a) is in the affirmation, who the person/persons is (or) are.

For the purpose of inquiry, he may take assistance of a police officer of the rank of Inspector
General of Police. Though a suggestion was given by Mr. For the purpose of inquiry, he may
take assistance of a police officer of the rank of Inspector General of Police. Though a
suggestion was given by Mr. Anil Diwan, learned senior counsel appearing on behalf of
Ms.Teesta Setalvad that it should be an officer from the CBI, Mr.P.N.Lekhi, Mr.K.T.S.Tulsi
and Mr.Mukul Rohtagi, learned senior counsel, opposed the same. In our view, an efficient,
impartial and fair officer should be selected. Therefore, we leave the choice to the Registrar
General to nominate an officer of the Delhi Police, as noted above, of the rank of Inspector
General of Police. The inquiry shall be conducted on the basis of affidavits to be placed before
the Registrar General and if he deems fit, he may examine any witness or witnesses to
substantiate the contents of the affidavits. We do not think it necessary to lay down any broad
guidelines as to the modalities which the Registrar General will adopt. He is free to adopt such
modalities as he thinks necessary to arrive at the truth, and to submit the report for further
consideration.

The affidavits and documents if any in support of the respective stands shall be filed before the
Registrar General within a period of four weeks from today.

We make it clear that the pendency of the inquiry will not be a ground for seeking adjournment
in the pending trial.

We have perused the letter of the trial court seeking extension of time. The time is extended
till 31st of May, 2005 for completion of trial.

The matter shall be placed for consideration of the Report to be submitted, after three months.

Order dated 21.2.2005 Heard.

The parties are granted four weeks' time to file the affidavits in terms of the earlier order dated
10.01.2005. We make it clear that we have not taken note of paragraph-8 of the application
filed in Crl.M.P. Nos.1908-1911 of 2005.

Criminal Miscellaneous Petition Nos.1908- 1911 of 2005 are accordingly disposed of.

46
Crl.M.P. Nos.6658-6661 of 2004 By order dated 10.01.2005, the question as to whether Ms.
Zahira Habibullah Sheikh was in any manner induced to depose in a particular way, has been
directed to be enquired into, we think it appropriate to direct her to file an affidavit indicating
details of her bank accounts, advances, other deposits, amounts invested in movable or
immovable properties and advances or security deposits, if any for the aforesaid purpose, along
with the affidavit to be filed before the Registrar General of this Court. She will also indicate
the sources of the aforesaid deposits, advances and investments, as the case may be. She shall
also indicate the details of such deposits, advances and investments, if any, in respect of her
family members and the source thereof. The Registrar General and police officer nominated to
be associated with enquiry are free to record statements of such family members and to make
such further enquiries in the manner as deemed necessary and to ask the family members to
file affidavits containing the details as noted above. They shall indicate in the affidavits and
the statements the sources of such deposits, advances and investments. If the Registrar General
and the police officer feel that any further enquiry as regards the sources is necessary, they
shall be free to do it.

Since, we have extended the time for filing of affidavits by the parties, the enquiry report shall
be submitted by the Registrar General within three months from today.

Put up thereafter."

Considering the materials placed before the Inquiry Officer, he has submitted his report. Parties
were permitted to file statements indicating their views so far as the report is concerned. The
findings recorded by the Inquiry Officer with reference to various documents are essentially as
follows:

(1) The FIR dated 2.3.2002 (2) Memorandum dated 21.3.2002 before the Chairman, NHRC (3)
Statements made on 11.5.2002 and 20.7.2002 before the concerned Citizen Tribunal and
Nanavati Commission respectively (4) Statements dated 7.7.2003 of the Press Conference in
Mumbai (5) Statement dated 11.7.2003 before NHRC (6) Plain copy of the affidavit dated
8.9.2003 attested by Notary submitted before this Court as additional document in SLP(Crl.)
3770/2003 (7) Statement recorded on 16.12.2003 at the Santa Cruz Police Station, Mumbai (8)
Affidavit dated 3.11.2004 submitted before Collector, Vadodara (9) Affidavit dated 31.12.2004
submitted before this Court (10) Affidavits dated 20.3.2005, 12.4.2005 and 24.4.2005 before
the Inquiry Officer.

47
The Inquiry Officer has categorically recorded that Zahira had changed her stands at different
stages and has departed from statements made before this Court. So far as the question whether
she was threatened, coerced, lured, induced and/or in any manner pressurized to make
statements in a particular way by any person or persons, it has been found that Zahira has not
been able to explain the assets in her possession in spite of several opportunities having been
granted. The Inquiry Officer had referred to transcript of conversations purported to have been
made between a representative of "Tehlaka" and Shri Tushar Vyas, Shri Nisar Bapu and Shri
Chandrakant Ramcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri
Shailesh Patel. These persons were also given opportunity to explain their stands as the
transcript of the Video Compact Disc produced by Tehlaka.com clearly indicated that money
was paid to Zahira to change her stand. The Inquiry Officer has referred to the explanations
offered by Zahira and her family members and found that she could not explain various receipts
of money received by her and deposits made in their bank accounts. The amount involved was
nearly rupees five lakhs. The explanation offered by Zahira and her family members was found
unacceptable. The details indicated in the affidavit dated 24.4.2005 filed by Zahira explained
the following details:

"1. 'Rs.65,000/- Sale consideration of one house sold in the month of November, 2001

2. Rs.40,000/(Approx.)- Sale consideration of two-three wheelers sold to Scrap dealer (Kabadi)

3. Rs.30,000/- Received from Insurance Company by mother on account of damages to motor

cycle.

4. Rs.32,000/- Sale consideration of scrap of machinery of Bakery

5. Rs.1,50,000/-(Approx.) Sale consideration of scrap of Bakery

6. Rs.50,000/- Compensation for damages of house received from Government through cheque
in favour of her mother

7. Rs.50,000/- Received by mother as & Rs.40,000/- compensation of her sister's death from
the Government through cheque

8. Rs.493/-P.M. Deposited on monthly basis directly in Savings Bank Account No.16669 with
Syndicate Bank stands in the name of mother, as interest on Bond amount of Rs.50,000/-
received as compensation of her sister's death from Government.

9. Rs.55,000/- Investment in a house in Ekta Nagar in the name of Ms. Zahira Sheikh

48
10. Rs.20,000 & Rs.25,000/- Investment in two small plots of 15x30ft. each by her brother
Nasibullah

11. Rs.45,000/- Deposited by her in the Bank Account No.11348 with Bank of Baroda,
Nawapura Branch at Vadodara

12. Rs.52,045/- Deposits in a joint account No.16754 with her brother, Nasibullah with
Syndicate Bank, Goddev Branch, Bhayander

13. Rs.1,37,384/- Deposits in her brother's account No.16667 with Syndicate Bank, Goddev
Branch, Bhayander

14. Rs.1,42,256/- Deposits in her mother's account No.16669 with Syndicate Bank, Goddev
Branch, Bhayander.

The Inquiry Officer repeatedly asked Zahira and her brother H. Nafitullah about the names and
addresses of purchasers of scrap and further details which were not supplied.

Two charts have been prepared by the Inquiry Officer showing the discrepancies. They read as
follows:

Receipts S. No. Amount Remarks

1. Rs. 50,000/- & Rs. 40,000/-

Received as compensation of her sister's death

2. Rs. 25,000/-

Received as damages of the house.

3. Rs. 30,000/-

Received from insurance company against damages of motorcycle.

4. Rs. 18,800/-

Received as sale price of one three-wheeler

5.

Rs. 6,296/-

Receipts from clearing zone-

49
Received as interest against bond of which has been alleged to be purchased out of the balance
amount of Damages of sister's death.

TOTAL Rs. 2,02,096/-

Note: Rs.1,82,000/- have been claimed to be treated as receipts against the sale price of the
scrap which has not been acceded to on the ground noted on page No. 106-107 despite if this
amount is deemed to be accepted, then the total of the receipts will be Rs. 3,84,096 (Rs.
2,02,096 + Rs. 1,82,000).

Investments:

S. No. Amount Remarks

1. Rs. 45,000/-

Deposited by her in the Bank Account No. 11348 with Bank of Baroda, Nawapura Branch at
Vadodara.

2. Rs. 52,045/-

Deposits in a joint account No. 16754 with her brother, Nasibullah with Syndicate Bank,
Goddev Branch, Bhayander.

3. Rs.1,37,384/-

Deposits in her brother's account No. 16667 with Syndicate Bank, Goddev Branch, Bhayander.

4. Rs. 1,42,256/-

Deposits in her mother's account No. 16669 with Syndicate Bank, Goddev Branch, Bhayander.

5.

Rs. 73,000/-

Purchase of two plots and

construction to the tune of Rs.

66,000/- and spent Rs. 7,000/-

on renovation of best bakery

building.

50
6.

Rs. 60,000/-

Invested against a flat of Bombay

7.

Rs. 48,000/-

Deposited on 14.5.2003 with

Bank account (A/c. No. 2037) of

Sh. Nafitullah.

8.

Rs. 30,727/-

Mother's account (A/c. No. 8881)

Total

Rs. 5,88,412/-

- Difference: Investments Receipts Rs. 5,88,412 Rs. 2,02,096 = Rs. 3,86,316/-

- If Rs. 1,82,000/- is also included as receipts then the difference is = Rs. 2,04,316/-.

The Inquiry Officer recorded the following findings: "In view of the all, as discussed above,
the fact which can be accepted as highly probable, that money has exchanged hands and that
was the main inducement responsible which made Ms. Zahira to state in a particular way in
Trial Court, Vadodara although threat could have also played a role in reaching at an
agreement. However, the element of threat cannot be altogether ruled out. One cannot loose
sight of the fact that first contact over cell phone was made by Sh. Madhu Srivastava and Sh.
Bharat Thakkar and not by Sh. Nafitullah. The evidence of Sh. Abhishek Kapoor about
presence of Sh. Madhu Srivastava, MLA, in the Court at the time of testimony of Ms. Zahira
can also be treated as an indication of this factor."

51
In addition to the aforesaid conclusions the Inquiry Officer has also recorded that after a
particular point of time contemporaneous to when she started changing her stand, a society
called Jan Adhikar Samiti came to the picture. It appears from the statements of functionaries
of Jan Adhikar Samiti that substantial amount has been spent for meeting the expenses of
Zahira and her family members. But the Inquiry Officer has found that even though materials
do exist to show that money played a vital role in the change of stand yet it could not be directly
linked to Madhu Srivastava and Bhattoo Srivastava.

Zahira has objected to acceptance of the Inquiry Officer's report. The grounds on which the
objections have been raised essentially as follows:

(1) The Inquiry Officer has tailored facts to fit into his pre-conceived conclusions. There has
been deliberate omissions and distortion of facts. (2) No cross examination of the witnesses
whom the Inquiry Officer has examined was permitted. (3) There was no transparent procedure
adopted and the agreed procedure was never followed. (4) There was lack of fair objective and
reasonable approach. The pre-requisites of an objective enquiry were missing. There was no
intelligent appreciation of facts.

(5) The Inquiry Officer appeared to be guided by Teesta Setalwad. The conclusion that Zahira
had approached this Court for a fresh trial is wrong. (6) The request for examining the
Chairman, NHRC was not accepted without indicating any reason. (7) Zahira was not only the
person who had made departure from her stand purportedly recorded during investigation, there
were others but no effort was made to take any action against them. Though many persons had
died or injured, Citizen for Justice and Peace and its functionaries never bothered to take up
their cases. It is surprising why they only chose Zahira.

(8) The petition filed before this Court was not in fact signed by Zahira but was signed by
Teesta and the mere fact that she had filed a Vakalatnama would not make her responsible for
the statements made in the affidavit.

(9) Upto the point of time of the Press Conference Zahira was under the control of Teesta and
she was a mere puppet in her hands and whatever statement was purportedly made by Zahira
was in fact made by Teesta. Teesta's role in the whole episode is very suspicious. She had spent
lot of money taking advantage of the helplessness of Zahira and has used her for her
machination. Zahira was tutored to make statements on different occasions. Teesta has given
different versions as to when she has come in contact with Zahira and decided to take up her
issues.

52
On the other hand, the State of Gujarat has adopted a peculiar stand stating that in view of
conclusions of the Inquiry Officer it is not in a position to simpliciter accept or deny the report.
So far as the criticism levelled by the Inquiry Officer against the conduct of some of the officers
it was pointed out that the State has shown its anxiety to see that justice is done and nothing is
wrong in deputing officers and merely because Shri S.N. Sinha who had been transferred
appeared in the proceedings before the Inquiry Officer, that cannot show that the State of
Gujarat was adopting any particular stand.

On behalf of Mrs. Teesta it has been submitted that report deserves to be accepted. Further
enquiry as to the role of Madhu Srivastava and the sources of money which has come to the
possession of Zahira may be further proved. The Inquiry Officer has clearly indicated the roles
played by Madhu Srivastava and his cousin Chandrakant in intimidating/coercing witnesses
like Zahira and family members. Assistance was given by Sudhir Sinha, Commissioner of
Police, Surat to Zahira to hold the press conference on 3.11.2004 just a day before her testimony
was to be recorded in Mumbai. Similar assistance was given by Shri Bhagyesh Jha, Collector,
Vadodara to Zahira. The directions by the Home Secretary Shri S.C. Murmu, to Shri Sudhir
Sinha, Commissioner of Police, to attend the proceedings before the Inquiry Committee clearly
show the partisan approach. The role of the State of Gujarat in lodging Zahira and her family
members at Silver Oak Club, Gandhi Nagar for a period of 10 days raises big question mark as
to who met the expenses. These clearly show that sinister roles were played by State of
Gujarat's functionaries. It has been submitted that Teesta is being targeted for exposing the evil
deeds of the aforesaid persons.

At the outset, it has to be noted that we have not gone into the question as to whether Teesta
has done anything wrong in the process. It was for Zahira to explain whether she was either
telling the truth or making false statement. Merely stating that she was acting as a puppet in the
hands of Teesta is not sufficient. Much has been made by learned counsel for Zahira about
some observations made by Inquiry Officer in his report. A bare reading of the observations
makes it clear that what is being submitted by learned counsel for Zahira is by reading
observations out of context.

The procedure adopted during enquiry has been characterized to be unfair and not fair and
transparent procedure. On a bare perusal of the proceedings of the enquiry, it is clear that the
procedure adopted was quite transparent. The proceedings were conducted in the presence of
learned counsel for the parties and/or the parties themselves. After the questions were asked by

53
the Inquiry Officer, learned counsel and the parties were asked if any further questions were to
be asked and as the records revealed whenever any question was suggested that was asked.
Grievance is made that scope for "cross examination" was not given. That according to us is
really of no consequence. What questions in "cross examination" by learned counsel could have
been put, were asked by the Inquiry Officer whenever any suggestion was made in that regard.
If a party did not suggest any question to be put to a witness by the Inquiry Officer, it is not
open for him or her to say that opportunity for "cross examination" was not given. A further
grievance is made that a request to call the Chairman, NHRC was turned down without reasons.
This according to us is a plea which needs to be noticed and rejected. The statement of Zahira
was recorded by NHRC in the presence of the Chairman (a retired Chief Justice of this Court)
and several members which included a retired Judge of this Court). The allegation that it was
not properly recorded or that somebody else's statement was recorded and Zahira was asked to
put the signatures, as she has tried to make out is clearly untenable. If we may say so, such a
plea should not have been raised as it reflects on the credibility of functionaries of a body like
NHRC.

The other pleas which have been enumerated above do not in any way affect credibility or
acceptability of the report. The allegation that the Inquiry Officer acted with some pre-
conceived ideas and/or report was based on presumptions is not correct. The conclusions drawn
by the Inquiry Officer have their foundation on materials which have been elaborately
discussed by the Inquiry Officer. Much has been made of the fact that original affidavit was
not filed. The reason for this has been explained, the Inquiry Officer has dealt with the question
in detail and undisputedly original affidavit has been brought on record. The stand that mere
filing of a vakalatnama without an affidavit by the concerned person cannot constitute a
statement by the person who has filed the vakalatnama is clearly unacceptable. The appeal
undisputedly has been filed by Zahira and it has been candidly admitted that she has filed the
vakalatnama for filing the appeal. She cannot now turn around and say that she was not a party
in the appeal.

Above being the position, there is no reason to discard the report given by the Inquiry Officer
which is accordingly accepted. Further, what remains to be done is what is the consequence of
Zahira having made such conflicting statements and the effect for changing her stand from the
statements made at different stages, particularly in this Court.

54
Whatever be the fate of the trial before the Court at Mumbai where the trial is stated to be going
on and the effect of her statement made during trial shall be considered in the trial itself.
Acceptance of the report in the present proceedings cannot have any determinative role in the
trial. Serious questions arise as to the role played by witnesses who changed their versions
more frequently than chameleons. Zahira's role in the whole case is an eye-opener for all
concerned with the administration of criminal justice. As highlighted at the threshold the
criminal justice system is likely to be affected if persons like Zahira are to be left unpunished.
Not only the role of Zahira but also of others whose conduct and approach before the Inquiry
Officer has been highlighted needs to be noted. The Inquiry Officer has found that Zahira could
not explain her assets and the explanations given by her in respect of the sources of bank
deposits etc. have been found to be unacceptable. We find no reason to take a different view.

During the course of hearing, we had asked learned counsel appearing for Zahira as to whether
they would like to be heard on the question of the consequential order, if any, if the report is
accepted and Zahira is found to have committed contempt or to have deflected the course of
justice by unacceptable methods. Learned counsel for Zahira stated that they would not like to
make statements in that regard and would only stress on the report being not accepted.

Zahira has committed contempt of this Court.

Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the
Supreme Court with regard to contempt of itself and such a law may prescribe the nature of
punishment which may be imposed on a contemner by virtue of the provisions of Article
129 read with Article 142(2) of the Constitution of India, 1950. Since, no such law has been
enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act,
1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed
under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not
deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act
prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court
also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. The
judgment in Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court (AIR
1954 SC 186) as regards the extent of "maximum punishment" which can be imposed upon a
contemner must, therefore, be construed as dealing with the powers of the High Courts only
and not of this Court in that behalf. In Supreme Court Bar Association v. Union of India and
Anr. (AIR 1998 SC 1895), this Court expressed no final opinion on that question since that

55
issue, strictly speaking, did not arise for decision in that case. The question regarding the
restriction or limitation on the extent of punishment, which this Court may award while
exercising its contempt jurisdiction, it was observed, may be decided in a proper case, when so
raised. We may note that a three Judge Bench in Suo Motu Contempt Petition 301 of 2003 by
judgment dated 19.12.2003 in re: Sri Pravakar Behera (2003 (10) SCALE 1726) imposed cost
of Rs.50,000/-.

The complex pattern of life which is never static requires a fresher outlook and a timely and
vigorous moulding of old precepts to some new conditions, ideas and ideals. If the Court acts
contrary to the role it is expected to play, it will be destruction of the fundamental edifice on
which justice delivery system stands. People for whose benefit the Courts exists shall start
doubting the efficacy of the system. Justice must be rooted in confidence and confidence is
destroyed when right minded people go away thinking that "the Judge was biased". (Per Lord
Denning MR in Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304 (CA). The
perception may be wrong about the judge's bias, but the Judge concerned must be careful to
see that no such impression gains ground. Judges like Ceaser's wife should be above suspicion
(Per Bowen L.J. in Lesson v. General Council of Medical Education (1890) 43 Ch.D. 366).

By not acting in the expected manner a judge exposes himself to unnecessary criticism. At the
same time the Judge is not to innovative at pleasure. He is not a Knight-errant roaming at will
in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in "The Nature of
Judicial Process".

It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep
promise to justice and it cannot stay petrified and sit non-challantly. The law should not be
seen to sit by limply, while those who defy it go free and those who seek its protection loose
hope (See Jennison v. Backer (1972 (1) All ER 1006). Increasingly, people are believing as
observed by SALMON quoted by Diogenes Laertius in "Lives of the Philosophers" laws are
like spiders' webs: if some light or powerless thing falls into them, it is caught, but a bigger one
can break through and get away". Jonathan Swift, in his "Essay on the Faculties of the Mind"
said in similar lines: "Laws are like cobwebs, which may catch small flies, but let wasps and
hornets break through".

As has been noticed earlier in the earlier case (reported in 2004 (4) SCC 158), the role to be
played by Courts, witnesses, investigating officers, public prosecutors has to be focused, more
particularly when eyebrows are raised about their roles.

56
In this context, reference may be made to Section 311 of the Code which reads as follows:

"311. Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon
any person as a witness or examine any person in attendance, though not summoned as a
witness or recall and re-

examine any person already examined, and the Court shall summon and examine or recall and
re-examine any such person if his evidence appears to it to be essential to the just decision of
the case."

The section is manifestly in two parts. Whereas the word used in the first part is "may", the
second part uses "shall". In consequences, the first part gives purely discretionary authority to
a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the
Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c)
to recall and re-examine any person whose evidence has already been recorded. On the other
hand, the second part is mandatory and compels the Court to take any of the aforementioned
steps if the new evidence appears to it essential to the just decision of the case. This is a
supplementary provision enabling, and in certain circumstances imposing on the Court the duty
of examining a material witness who would not be otherwise brought before it. It is couched in
the widest possible terms and calls for no limitation, either with regard to the stage at which
the powers of the Court should be exercised, or with regard to the manner in which it should
be exercised. It is not only the prerogative but also the plain duty of a Court to examine such
of those witnesses as it considers absolutely necessary for doing justice between the State and
the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and
one of such means is the examination of witnesses of its own accord when for certain obvious
reasons either party is not prepared to call witnesses who are known to be in a position to speak
important relevant facts.

The object underlying Section 311 of the Code is that there may not be failure of justice on
account of mistake of either party in bringing the valuable evidence on record or leaving
ambiguity in the statements of the witnesses examined from either side. The determinative
factor is whether it is essential to the just decision of the case. The section is not limited only
for the benefit of the accused, and it will not be an improper exercise of the powers of the Court
to summon a witness under the Section merely because the evidence supports the case for the
prosecution and not that of the accused. The section is a general section which applies to all

57
proceedings, enquiries and trials under the Codeand empowers Magistrate to issue summons
to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant
expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code".
It is, however, to be borne in mind that whereas the section confers a very wide power on the
Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the
wider the power the greater is the necessity for application of judicial mind.

As indicated above, the Section is wholly discretionary. The second part of it imposes upon the
Magistrate an obligation: it is, that the Court shall summon and examine all persons whose
evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law
of evidence that the best available evidence should be brought before the Court. Sections
60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule.
The Court is not empowered under the provisions of the Code to compel either the prosecution
or the defence to examine any particular witness or witnesses on their side. This must be left
to the parties. But in weighing the evidence, the Court can take note of the fact that the best
available evidence has not been given, and can draw an adverse inference. The Court will often
have to depend on intercepted allegations made by the parties, or on inconclusive inference
from facts elicited in the evidence. In such cases, the Court has to act under the second part of
the section. Sometimes the examination of witnesses as directed by the Court may result in
what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be
taken into account. Whether the new evidence is essential or not must of course depend on the
facts of each case, and has to be determined by the Presiding Judge.

The object of the Section 311 is to bring on record evidence not only from the point of view of
the accused and the prosecution but also from the point of view of the orderly society. If a
witness called by Court gives evidence against the complainant he should be allowed an
opportunity to cross- examine. The right to cross-examine a witness who is called by a Court
arises not under the provision of Section 311, but under the Evidence Act which gives a party
the right to cross- examine a witness who is not his own witness. Since a witness summoned
by the Court could not be termed a witness of any particular party, the Court should give the
right of cross- examination to the complainant. These aspects were highlighted in Jagat Rai v.
State of Maharashtra, (AIR 1968 SC

178).

58
Right from the inception of the judicial system it has been accepted that discovery, vindication
and establishment of truth are the main purposes underlying existence of Courts of justice. The
operative principles for a fair trial permeate the common law in both civil and criminal contexts.
Application of these principles involves a delicate judicial balancing of competing interests in
a criminal trial, the interests of the accused and the public and to a great extent that of the victim
have to be weighed not losing sight of the public interest involved in the prosecution of persons
who commit offences. In 1846, in a judgment which Lord Chancellor Selborne would later
describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court,"
Vice-Chancellor Knight Bruce said :

"The discovery and vindication and establishment of truth are main purposes certainly of the
existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable
and important, cannot be usefully pursued without moderation, cannot be either usefully or
creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open
to them.

The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of
examination. Truth, like all other good things, may be loved unwisely

- may be pursued too keenly - may cost too much."

The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a
formulation which has subsequently been frequently invoked, including by Sir Gerard
Brennan. On another occasion, in a joint judgment of the High Court, a more expansive
formulation of the proposition was advanced in the following terms: "The evidence has been
obtained at a price which is unacceptable having regard to the prevailing community
standards."

Restraints on the processes for determining the truth are multi-faceted. They have emerged in
numerous different ways, at different times and affect different areas of the conduct of legal
proceedings. By the traditional common law method of induction there has emerged in our
jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process :

"It is the merit of the common law that it decides the case first and determines the principles
afterwards ..... It is only after a series of determination on the same subject- matter, that it
becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state
the principle which has until then been obscurely felt. And this statement is often modified

59
more than once by new decisions before the abstracted general rule takes its final shape. A well
settled legal doctrine embodies the work of many minds, and has been tested in form as well
as substance by trained critics whose practical interest is to resist it any every step."

The principle of fair trial now informs and energizes many areas of the law. It is reflected in
numerous rules and practices. It is a constant, ongoing development process continually
adapted to new and changing circumstances, and exigencies of the situation - peculiar at times
and related to the nature of crime, persons involved - directly or operating behind, social impart
and societal needs and even so many powerful balancing factors which may come in the way
of administration of criminal justice system. As will presently appear, the principle of a fair
trial manifests itself in virtually every aspect of our practice and procedure, including the law
of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J.
put it:

"It is desirable that the requirement of fairness be separately identified since it transcends the
context of more particularized legal rules and principles and provides the ultimate rationale and
touchstone of the rules and practices which the common law requires to be observed in the
administration of the substantive criminal law."

This Court has often emphasised that in a criminal case the fate of the proceedings cannot
always be left entirely in the hands of the parties, crime being public wrong in breach and
violation of public rights and duties, which affect the whole community as a community and
are harmful to the society in general. The concept of fair trial entails familiar triangulation of
interests of the accused, the victim and the society and it is the community that acts through
the State and prosecuting agencies. Interests of society is not to be treated completely with
disdain and as persona non grata. Courts have always been considered to have an over-riding
duty to maintain public confidence in the administration of justice - often referred to as the
duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always
been viewed as a continuous process, not confined to determination of the particular case,
protecting its ability to function as a Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the trial
evincing intelligence, active interest and elicit all relevant materials necessary for reaching the
correct conclusion, to find out the truth, and administer justice with fairness and impartiality
both to the parties and to the community it serves. Courts administering criminal justice cannot

60
turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings,
even if a fair trial is still possible, except at the risk of undermining the fair name and standing
of the judges as impartial and independent adjudicators. The principles of rule of law and due
process are closely linked with human rights protection. Such rights can be protected
effectively when a citizen has recourse to the Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all
concerned. There can be no analytical, all comprehensive or exhaustive definition of the
concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz. whether something that was done or said either
before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice
has resulted. It will not be correct to say that it is only the accused who must be fairly dealt
with. That would be turning a Nelson's eye to the needs of the society at large and the victims
or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and
the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial. A criminal trial is a judicial
examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to
a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of
such facts at which the prosecution and the accused have arrived by their pleadings; the
controlling question being the guilt or innocence of the accused. Since the object is to mete out
justice and to convict the guilty and protect the innocent, the trial should be a search for the
truth and not a bout over technicalities, and must be conducted under such rules as will protect
the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable
doubt must depend upon judicial evaluation of the totality of the evidence, oral and
circumstantial, and not by an isolated scrutiny.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum
standards of due process of law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which the hearing is a real one, not
sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve
the process, it may be vitiated and violated by an overhasty stage-managed, tailored and

61
partisan trial. The fair trial for a criminal offence consists not only in technical observance of
the frame, and forms of law, but also in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of justice.

"Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and
primary of the quality of trial process. If the witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a
fair trial. The incapacitation may be due to several factors, like the witness being not in a
position for reasons beyond control to speak the truth in the Court or due to negligence or
ignorance or some corrupt collusion. Time has become ripe to act on account of numerous
experiences faced by Courts on account of frequent turning of witnesses as hostile, either due
to threats, coercion, lures and monetary considerations at the instance of those in power, their
henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices
ingeniously adopted to smother and stifle truth and realities coming out to surface rendering
truth and justice, to become ultimate casualties. Broader public and societal interests require
that the victims of the crime who are not ordinarily parties to prosecution and the interests of
State represented by their prosecuting agencies do not suffer even in slow process but
irreversibly and irretrievably, which if allowed would undermine and destroy public confidence
in the administration of justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined
and jealously guarded and protected by the Constitution. There comes the need for protecting
the witness. Time has come when serious and undiluted thoughts are to be bestowed for
protecting witnesses so that ultimate truth is presented before the Court and justice triumphs
and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating
agencies. Consequences of defective investigation have been elaborated in Dhanraj Singh @
Shera and Ors. v. State of Punjab (JT 2004(3) SC 380). It was observed as follows:

"5. In the case of a defective investigation the Court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of the investigating officer if the
investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).

6. In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or
omission is committed by the investigating agency or because of negligence the prosecution
evidence is required to be examined de hors such omissions to find out whether the said

62
evidence is reliable or not. The contaminated conduct of officials should not stand on the way
of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated
and justice would be denied to the complainant party.

7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) if
primacy is given to such designed or negligent investigation, to the omission or lapses by
perfunctory investigation or omissions, the faith and confidence of the people would be shaken
not only in the Law enforcing agency but also in the administration of justice. The view was
again re-iterated in Amar Singh v. Balwinder Singh and Ors. (2003 (2) SCC 518)".

The State has a definite role to play in protecting the witnesses, to start with at least in sensitive
cases involving those in power, who has political patronage and could wield muscle and money
power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector
of its citizens it has to ensure that during a trial in Court the witness could safely depose truth
without any fear of being haunted by those against whom he had deposed. Every State has a
constitutional obligation and duty to protect the life and liberty of its citizens. That is the
fundamental requirement for observance of the rule of law. There cannot be any deviation from
this requirement because of any extraneous factors like, caste, creed, religion, political belief
or ideology. Every State is supposed to know these fundamental requirements and this needs
no retaliation. We can only say this with regard to the criticism levelled against the State of
Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to
depose against people with muscle power, money power or political power which has become
the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to
be protected so that the interests of justice do not get incapacitated in the sense of making the
proceedings before Courts mere mock trials as are usually seen in movies.

Legislative measures to emphasise prohibition against tampering with witness, victim or

informant have become the imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in proceedings before the Courts have to be
seriously and sternly dealt with. There should not be any undue anxiety to only protect the
interest of the accused. That would be unfair, as noted above, to the needs of the society. On
the contrary, efforts should be to ensure fair trial where the accused and the prosecution both
get a fair deal. Public interest in the proper administration of justice must be given as much

63
importance if not more, as the interest of the Individual accused. In this courts have a vital role
to play.

In the aforesaid background, we direct as follows:

(1) Zahira is sentenced to undergo simple imprisonment for one year and to pay cost of
Rs.50,000/- and in case of default of payment within two months, she shall suffer further
imprisonment of one year;

(2) Her assets including bank deposits shall remain attached for a period of three months. The
Income Tax Authorities are directed to initiate proceedings requiring her to explain the sources
of acquisition of various assets and the expenses met by her during the period from 1.1.2002
till today. It is made clear that any observation made about her having not satisfactorily
explained the aforesaid aspects would not be treated as conclusive. The proceedings shall be
conducted in accordance with law. The Chief Commissioner, Vadodara is directed to take
immediate steps for initiation of appropriate proceedings. It shall be open to Income tax
authorities to direct continuance of the attachment in accordance with law. If so advised, the
Income Tax Authorities shall also require Madhu Srivastava and Bhattoo Srivastava to explain
as to why the claim as made in the VCD of paying money shall not be further enquired into
and if any tangible material comes to surface, appropriate action under the Income Tax Law
shall be taken notwithstanding the findings recorded by the Inquiry Officer that there is no
acceptable material to show that they had paid money, as claimed, to Zahira. We make it clear
that we are not directing initiation of proceedings as such, but leaving the matter to the Income
Tax Authorities to take a decision. The Trial Court shall decide the matter before it without
being influenced by any finding/observation made by the Inquiry Officer or by the fact that we
have accepted the report and directed consequential action.

The applications are accordingly disposed of.

64
STATE OF TAMIL NADU VS J. JAYALALITHA, (2000)

The former Chief Minister of Tamil Nadu Ms. J. Jayalalitha was arraigned before the court of
a Special Judge, Chennai, along with 10 others, depicting her as the hub of a cabal for knocking
off a huge sum of public money to make vast pecuniary gains at the cost of the State exchequer.
The Special Judge at the stage of framing charge felt that the materials shown to him were
insufficient to frame a charge against her and also against one of her former cabinet colleagues
(V.R. Nedunchezhian). So they were discharged by the Special Judge, but a charge has been
framed against the other nine accused for criminal conspiracy to misappropriate Government
funds and other related offences. The State of Tamil Nadu challenged the aforesaid order of
discharge before the High Court of Madras in revision, but a learned Single Judge did not
interfere with the order. In the meanwhile V.R. Nedunchezhian has passed away. This appeal
is by the Sate as against Ms. Jayalalitha (respondent herein) in challenge of the said order of
the High Court.

The substance of the police case is that during the period between February 1992 and October
1993, all the above 11 accused and certain foreign coal suppliers had entered into a criminal
conspiracy to import coal for Tamil Nadu Electricity Board(hereinafter referred to as the
`Electricity Board') for such price as to obtain huge pecuniary advantage to themselves by
causing heavy and wrongful loss to the State to the tune of about 6.5 crores of rupees.

There are three Thermal Power Stations in Tamil Nadu (at Ennore, Mettur and Tuticorin) which
generate electric power by using coal as fuel. The annual requirement of coal for those three
stations was about 12 million metric tonnes of coal. As the stock position of coal in March
1992 appeared insufficient to meet the requirement a decision was taken to import at least 2
million metric tonnes of coal from foreign countries. The allegation is that such a decision was
taken pursuant to a criminal conspiracy hatched by the accused persons for obtaining huge
pecuniary advantage. Pursuant to the decision, tenders were invited from foreign suppliers of
coal. On 10.3.1993, tenders were opened, but only 11 of them were found to be in order.
However, those bidders were asked to revise the price bid after adding three more parameters,
such as size, ash content and volatile matter. The idea was to facilitate import of inferior quality
of coal at higher price by showing favouritism to certain coal suppliers of Indonesia, according
to the allegation.

The Government Secretary (PWD) raised strong objections against the said tenders being
accepted. A company based at Singapore (M/s. Counter Corporation) made an offer to supply

65
6 lacs metric tonnes of coal at the rate of 35.24 US Dollars. But it was rejected without even
starting negotiation with them. But the Electricity Board fixed the price of coal at 40.20 US
Dollars per metric ton and three Indonesian bidders were permitted to supply coal at that price.
Subsequently M/s. Counter Corporation (Singapore) was also asked to supply coal at the
increased price of 40.20 US Dollars per metric ton.

The offences alleged against all the accused are Section 120-B read with Section 409 of IPC as
well as Section 13(2) of the Prevention of Corruption Act, 1988.

What persuaded the Special Judge to adopt the view that materials produced before him were
insufficient to frame a charge against the respondent, are briefly the following:

The strong objection raised by Government Secretary (Shri V. Sundaram) against the proposal
to import coal at such a high price would not have reached the notice of the respondent because
it is an admitted position that some crucial sheets in the Current File were removed and such
sheets were later added after obtaining approval from the Chief Minister. Special Judge has
made the following observations: "It is not known as to how and where and at what point of
time the pages 223 to 226 and also the pages 21 to 32 were removed from the Secretariat file
(no.55360/U2/93). This part of the file only contains the objections raised by Sundaram,
objections in paras 21 to 32 are based on the objections already raised in pages 223 to

246. I have carefully gone through the materials placed before me to find out whether there is
anything to show that the file was intact with the pages containing the objections of Sundaram
when the file reached the table of A11 and A1. The pages containing the objections of
Sundaram pages 223 to 246 and pages 21 to 32 can be called as missing pages for shortness.
The materials on record do not reveal how, when and where the missing pages were removed
and secreted."

The Special Judge has further observed thus:

"If the file in the present condition without the missing pages had been submitted to A1 and
A11, they would not have been in a position to know the removal of pages and suspect foul
play. If these missing pages have been removed either by 2nd or 3rd accused before sending
the file to 11th accused and 1st accused, then there might not have been any occasion for 11th
and 1st accused to note the objections of Sundaram."

Learned Single Judge of the Madras High Court while affirming the said order pointed out that
the entire case against the respondent is based on the statement of Shri V. Sundaram and

66
another statement made by Shri Venkataraman, the then Chief Secretary (who is arrayed as the
third accused in the charge sheet, against whom the trial court has framed charge). The latter
statement was recorded underSection 164 of the Code of Criminal Procedure (for short `the
Code'). Regarding the objections put forward by V. Sundaram in the Current File, learned
Single Judge noticed that Page Nos. 225 to 245 of that file remained missing at a particular
point of time and the objections made by V. Sundaram were on those sheets. When there is
nothing to show that those sheets were removed at the behest of respondent Jayalalitha it must
be presumed that she had not come across those objections, according to learned Single Judge
of the High Court.

While considering the possibility of those pages being surreptitiously removed at the behest of
respondent Jayalalitha learned Single Judge has stated thus:

"A mere imagination cannot be said to be a presumption. There is no evidence on record to

show that the file had gone to the first accused and she ordered the removal of those pages at
the time when she signed the said file. When the file was sent from witness Sundaram those
pages were found in the file and thereafter, it has gone to number of officials and the Minister
for Public Works, who is the second accused in this case and from him, the said file has gone
to A-11 and finally to A-1. The fact of the file containing those pages and thereafter missing
of those pages when the file once gain reached him after the signature of the accused and the
fact of inserting those missing pages together in the file by one Easakki Muthu are also spoken
to by witness Sundaram. However, there is absolutely no evidence as to what had happened in
between."

Thereafter learned Single Judge proceeded to consider the statement attributed to 3rd accused
Venkataraman as recorded under Section 164 of the Code and found that the said material is
not capable of being converted into legal evidence later on after framing the charges.

We may, at the outset, point out that there is no use with the said statement attributed to the
third accused Venkataraman on account of two reasons. First is that the said author of the
statement has already been arraigned in the case and a charge has been framed against him.
Second is that on a reading of the statement we have noticed that it is exculpatory in nature.
Hence the said statement can only lie in store and no court can possibly treat it as evidence.

Shri Sushil Kumar, learned senior counsel who argued for respondent Jaylalitha contended that
if the said statement is to be kept at bay there is nothing else to connect the respondent with the
criminal conspiracy alleged. He submitted that there is no material to indicate that respondent

67
had ever come to know of the adverse remarks made by V. Sundaram in the file concerned as
those notes happened to be on those sheets which were missing from the Current File. If that
be so, according to the learned senior counsel, respondent could only have acted on the
recommendations submitted by the departmental heads in the Note, and on the proposals
prepared by the high officials in the bureaucracy. No head of the executive can in such
circumstances be asked to answer any charge of criminal conspiracy, according to Shri Sushil
Kumar.

On the other hand Shri Shanti Bhushan, learned senior counsel presented before us a number
of materials and circumstances which, according to him, are sufficient to bring home the guilt
of the respondent. He submitted that it is for the respondent to controvert those circumstances
by participating in the trial and defend herself and if she fails in that endeavour she would end
in conviction of the offences being the inevitable consequence thereof. Learned senior counsel
on that premise attacked the order of discharge passed by the Special Judge and made a forceful
onslaught on the order passed by the learned Single Judge of the High Court for not correcting
the mistake committed by the Special Judge.

At this stage we have to proceed on a premise that a criminal conspiracy was hatched in respect
of import of 2 million metric tonnes of coal during the relevant period. Such a premise can be
adopted as the Special Judge, after hearing both sides, has decided to frame charge against the
other nine accused persons presuming that there was such a conspiracy and those nine accused
have involved themselves as the conspirators therein. Hence the only question now to be
considered is whether at this stage such a presumption can be stretched towards respondent
Jayalalitha as well.

Chapter II of the Evidence Act - deals with "of the Relevancy of Facts." One particular
provision included in that Chapter to deal with evidence relating to criminal conspiracy is
Section 10. It is useful to have a look at that section at this stage. Therefore, we may now refer
to Section 10 of the Evidence Act.

"10. Things said or done by conspirator in reference to common design.- Where there is
reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons believed to be so conspiring,

68
as well for the purpose of proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it."

The question of using anything said, done or written by any one of such conspirators would
arise only if the facts would help to sustain the first limb of the section i.e. there is reasonable
ground to believe that two or more persons have conspired together to commit an offence.
Unless the court has some materials to believe that respondent is one of those persons referred
to in the first limb of the section, so far as the conspiracy in this case is concerned, any
consideration for what she had said, done or written would not be a relevant fact as against
each of the conspirators. Nevertheless, it is open to the court, even at this stage to consider the
materials relating to what an accused would have said, done or written with reference to the
common intention between the accused for the purpose of deciding whether there is reasonable
ground to believe that the said accused would have been one of the conspirators. In State vs.
Nalini {1999 (5) SCC 253} a three Judge Bench of this Court has stated the legal position thus
regarding the first limb of Section 10 of the Evidence Act:

"The first condition which is almost the opening lock of that provision is the existence of
`reasonable ground to believe' that the conspirators have conspired together. This condition
will be satisfied even when there is some prima facie evidence to show that there was such a
criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by
one of the conspirators becomes substantive evidence against the other, provided that should
have been a statement `in reference to their common intention'. Under the corresponding
provision in the English law the expression used is `in furtherance of the common object'. No
doubt, the words `in reference to their common intention' are wider than the words used in
English law {vide Sardar Sardul Singh Caveeshar v. State of Maharashtra(AIR 1965 SC
682)}."

So now what we have to consider is whether the materials are sufficient to show the prospect
for holding that "there is reasonable ground to believe" that respondent Jayalalitha would also
have been at least one of the conspirators, if not the kingpin of it.

In the above context it is useful to notice the office held by the other persons against whom the
Special Court framed the charge in the same case for the offence of criminal conspiracy. They
can be shown by reference to the rank allotted to each of them in the challan submitted by the
police. A-2 was the Minister in the cabinet of respondent Jayalalitha for the portfolio relating
to PWD. A-3 was the Chief Secretary, A-4 was the Chairman of the Electricity Board, A-5 and

69
A-6 were the Secretaries to Government of Tamil Nadu in the Finance and Industries
departments respectively. A-7, A-8 and A-9 were members of the Electricity Board and A-10
was the Chief Engineer of the Electricity Board (Coal Wing).

Shri Shanti Bhushan submitted that the above officers would not have even dreamt of
committing a criminal conspiracy for knocking off such a fabulous fund of the Tamil Nadu
Government without the direct, active and positive involvement of the then Chief Minister,
particularly due to the peculiar set up of the ministerial network arranged by the respondent
herself. For that the first circumstance which learned senior counsel highlighted is a
Government Order issued by the State Government on 6.11.1991. This was issued almost soon
after respondent assumed the office of Chief Minister of the State. The said Government Order
pointed out that there was no uniformity in the procedure followed by the public sector
undertakings in the State regarding settlement and purchase of contracts and tenders, and hence
it was considered essential that proper scrutiny is exercised before approval of such tenders
and contracts. So the Government ordered that prior approval of the Government should be
obtained in respect of all the tenders and all the purchases "where the value of the contract
exceeds Rs.one crore". It was directed that the file shall, therefore, be circulated to the
concerned Minister, Minister of Finance and the Chief Minister for such proper scrutiny and
prior approval.

The next circumstance pointed out is the D.O. letter which respondent herself addressed to the
then Union Minister for Coal (Shri P.A. Sangma). The letter was sent on 8.10.1991 seeking
permission to import 7 lacs tonnes of coal from Australia. But the Union Minister discouraged
her from buying coal from outside India, by pointing out the following:

"As reported by Coal India Ltd., these power stations had a coal stock of 7.95 lakh tonnes at
the end of October '91 as compared to 0.44 lakh tonnes at the end of March '91. I have also
been told that because of large stocks, TNEB has not been lifting coal from Paradeep,
Vishakapatnam and Haldia Ports as per programme. As such it would appear that TNEB prima-
facie does not have any justification for importing any coal for the present. They would be well
advised to accumulate as much indigenous coal as possible so that they have comfortable stocks
during this busy season."

The respondent did not stop there and she addressed a D.O. letter dated 30.7.1992 to the Prime
Minister requesting him to accord special permission to the aforesaid Electricity Board for
importing one million tonnes of coal "as a one time measure, on an emergency basis free of

70
import duty." Referring to the said letter which respondent has addressed to the Prime Minister
the Central Minister for Coal wrote a reply to her on 29.9.1992, informing her that the stock
position of coal at the three Thermal Power Stations of TNEB was quite comfortable. A chart
was given by him showing the stock at the three different power stations. The Central Minister
therefore advised the respondent against import of coal.

It appears that the respondent was insistent on importing coal in spite of the strong advice
against it. However, even those persons who opposed such import had subsequently yielded to
her insistence. Nonetheless the Central Government put a rider that such import shall be routed
through Central Government. It was in the wake of the above materials that the next
circumstance was projected against the respondent as she did not agree to abide by the said
rider as well and it was decided to import coal directly through the State and not via the Centre.

Shri Shanti Bhushan invited our attention to the strong language used by Shri V. Sundaram
(PWD Secretary) for castigating the proposal for importing coal, as per his letter dated
26.5.1993, addressed to the Chairman of the Electricity Board, with copies to all members of
the Board. Some of the excerpts of the said letter are the following:

"The question how these two Indonesian sources, whose original offers stipulated maximum
C.V. of 6000 will meet the requirements of TNEB whose minimum stipulation of C.V. is 6000
baffles me. ........................... In fact the specifications of these 2 Indonesian supply sources is
so divergent from TNEB tender specification in so many critical elements that they should not
merit even a cursory look as can be seen from the table below."

After giving the table in his letter Shri V. Sundaram further noted that "in fact High Moisture
and High Volatile matter alone should eliminate these two Indonesian sources. I have been
advised that the combination of High Total Moisture and High Volatile Matter could prove to
be deadly", and he concluded thus:

"These are only some of the points that come to my mind immediately. All in all, I am very
uncomfortable about the way this tender has been issued and processed. I have a feeling of
lurking uneasiness that we will one day discover yet another bloomer which might land us all
in considerable embarrassment, besides involving TNEB and Government in protracted legal
wrangles and heavy losses, apart from unseemly public controversy."

On 18.6.1993, the Secretary of the Ministry of Coal, New Delhi, sent an urgent communication
to the Chairman of the Electricity Board as well as to Shri V. Sundaram. The relevant portion

71
of the communication reads thus: "In view of sufficient stock of coal available with the Tamil
Nadu Power Stations there is no justification for import of coal. Moreover the time limit for
import of coal expires in September 1993. One cannot visualise as to how import will
materialise within these few months. I request any case be opposed to any extension of
concessional duty facility beyond September 1993. I have been informed that tender
specifications have been drawn in such a manner that it will exclude domestic producers from
bidding. If that is true it will be unfortunate. Kindly appreciate that import of coal on
concessional duty has been allowed to give fair and competitive chance to the domestic
producers also."

Shri Ramachandran, a Joint Secretary to Government, strongly wrote against accepting the said
tenders in his Note dated 22.6.93. It is not necessary to extract the whole Note as the same is
replete with warnings against the proposal. Yet we may extract only the barest relevant portion:

"It is apprehended that an excess of Rs.8,64,93,100/- has to be incurred by the Tamil Nadu
Electricity Board on account of the present recommendation of the tender proposal by the
Tamil Nadu Electricity Board vide Annexure 6 at page 39 of flag A. Further, the quality of
Indonesian coal is poor and could cause fire explosion in the mill."

The above note has been fully concurred by Shri Sundaram by further writing the following in
his note dated 23.6.93:

"I have explained the difficulties to Minister (PWD). The tender proposal may be returned to
the Board for various reasons like admitting certain firms with post - tender clarification and
proposing allotment of quantities to them besides other infirmities."

It is pertinent to point out that the above materials are included in the Current File which was
submitted to the respondent. There is no case for the respondent that the above were not in that
File when she scrutinised it nor is it anybody's case that those warnings were included only in
the missing sheets. If respondent came to know of those prompt warnings and despite them she
accorded her green signal to import the coal, how could it be concluded at this premature stage
that she was not aware of the serious implications of the clandestine deal on the State
exchequer.

We again repeat that at this stage we are proceeding on the assumption that there was a criminal
conspiracy to commit the offence under Section 409 of IPC and Section 30(2) of the PC Act,
because the trial court has chosen to frame charge against the co-accused including one Cabinet

72
Minister who was working under the respondent. Shri Shushil Kumar contended that it is not
necessary that she would have read those portions in the Notes. Alternatively he contended that
even if she had read those notes she would have been persuaded to grant permission on the
strength of the later note submitted in same Current File.

Shri Shanti Bhushan, learned senior counsel, on the other hand, contended that it is next to
impossibility that the Chief Minister would have missed the above materials, particularly when
it was her Government which wanted through the G.O. dated 6.11.1991 that all the files shall
be routed through the Chief Minister for her "proper scrutiny" regarding any venture of public
sector undertakings involving more than a crore of rupees. The said G.O. was issued with the
idea that without the specific scrutiny and supervision of the Chief Minister no approval should
be granted.

Learned senior counsel further contended that if the Chief Minister had read the whole Note of
Shri V. Sundaram it is for her to put forth satisfactorily that she was convinced in spite of such
warnings that the deal was genuine and in the best interest of the State or that she had discussed
those points with the said Secretary and she had good reasons to overrule the objections. We
find force in the said contention that until the respondent affords satisfactory explanation the
court can presume that she was aware of the serious consequences of the deal on the State
exchequer as pointed out by the said PWD Secretary. Court can also presume at this stage that
there are reasonable grounds to believe that she was involved in the conspiracy as envisaged
in Section 10 of the Evidence Act.

In the written submission presented by the learned counsel for the respondent it is contended,
inter alia, that when the "Current File" reached respondent as Chief Minister the relevant sheets
were missing therefrom and hence she acted on the latest Note put up by the officials of the
department which was countersigned by the same V. Sundaram on 7.7.1993. On the said
premise learned counsel argued - why should a conspiring Chief Minister be kept in the dark;
why should the pages at all be removed and the File renumbered if respondent was a co-
conspirator?

Sri Shanti Bhushan invited our attention to the statement recorded from Sri V.Sundaram
under Section 161 of the Code on 13.12.1996 in which there is a narrative of the details of the
circumstances in which he had to initial a Note prepared by the other departmental heads
including the Chief Secretary (A3). The aggressive and truculent role attributed to a lady by
name "Sasikala" looms large in the said statement of V.Sundaranm and that he was veritably

73
threatened that he would be dismembered if he would persist with his opposition to the
clearance of the proposal to import the coal. Learned counsel submitted that prosecution would
prove that the said Sasikala was the surrogate of the respondent and wielded considerable
influence on her during the relevant time.

We would choose to refrain from dealing with the above contention, lest any comment made
by us may turn out to be detrimental to one or the other side of the case. Nevertheless, it is for
the prosecution to explain how certain relevant sheets were found missing and whether
respondent had any knowledge of and also why the respondent should have caused them to be
removed. This is not the stage for weighing the pros and cons of all the implications of the
materials nor for sifting the materials presented by the prosecution. The exercise at this stage
should be confined to considering the police report and the documents to decide whether the
allegations against the accused are "groundless" or whether "there is ground for presuming that
the accused has committed the offences." Presumption therein is always rebuttable by the
accused for which there must be opportunity of participation in the trial.

For all the above reasons we have no doubt in our mind that the court would not, and should
not, have discharged the respondent at this premature stage in respect of the offences charged
against the other nine accused persons.

Therefore, we set aside the order passed by the Special Court discharging respondent J.
Jayalalitha and that of the High Court which confirmed the said order. We direct the Special
Judge to proceed against the respondent as one of the accused in the case. Regarding the
witnesses already examined by the prosecution we permit the prosecution to treat the
examination-in-chief already done as part of the evidence recorded in this case with all the
accused on the array. Prosecution can elicit from those witnesses any further materials and they
can be recorded as the remaining portion of the examination-in-chief. Thereafter the respondent
shall have full opportunity to cross-examine such witnesses as though the entire chief
examination was conducted with her on the array of the accused. This provision is made by us
for avoiding unnecessary delay and repetition of re-recording the evidence already recorded.
On completion of examination of such witnesses prosecution can examine any remaining
witnesses. Thereafter, trial can proceed in accordance with law.

If respondent Jayalalitha seeks permission to dispense with her presence in the trial court it is
open to her to file an application for the same before the Special Judge. The Special Judge shall

74
exempt her from personally appearing after recording her plea, if she agrees to abide by the
following conditions:

(1) A counsel on her behalf would be present in the court whenever the case is taken up.

(2) She would not dispute her identity as the particular accused in the case.

(3) She would be present on any day when her presence is required by the court.

It is needless to say that if she fails to abide by any of the above conditions it is open to the
Special Judge to revoke the aforesaid benefit granted to her.

The Special Judge has further observed thus:

"If the file in the present condition without the missing pages had been submitted to A1 and
A11, they would not have been in a position to know the removal of pages and suspect foul
play. If these missing pages have been removed either by 2nd or 3rd accused before sending
the file to 11th accused and 1st accused, then there might not have been any occasion for 11th
and 1st accused to note the objections of Sundaram."

Learned Single Judge of the Madras High Court while affirming the said order pointed out that
the entire case against the respondent is based on the statement of Shri V. Sundaram and
another statement made by Shri Venkataraman, the then Chief Secretary (who is arrayed as the
third accused in the charge sheet, against whom the trial court has framed charge). The latter
statement was recorded underSection 164 of the Code of Criminal Procedure (for short `the
Code'). Regarding the objections put forward by V. Sundaram in the Current File, learned
Single Judge noticed that Page Nos. 225 to 245 of that file remained missing at a particular
point of time and the objections made by V. Sundaram were on those sheets. When there is
nothing to show that those sheets were removed at the behest of respondent Jayalalitha it must
be presumed that she had not come across those objections, according to learned Single Judge
of the High Court.

While considering the possibility of those pages being surreptitiously removed at the behest of
respondent Jayalalitha learned Single Judge has stated thus:

"A mere imagination cannot be said to be a presumption. There is no evidence on record to

show that the file had gone to the first accused and she ordered the removal of those pages at
the time when she signed the said file. When the file was sent from witness Sundaram those
pages were found in the file and thereafter, it has gone to number of officials and the Minister

75
for Public Works, who is the second accused in this case and from him, the said file has gone
to A-11 and finally to A-1. The fact of the file containing those pages and thereafter missing
of those pages when the file once gain reached him after the signature of the accused and the
fact of inserting those missing pages together in the file by one Easakki Muthu are also spoken
to by witness Sundaram. However, there is absolutely no evidence as to what had happened in
between."

Thereafter learned Single Judge proceeded to consider the statement attributed to 3rd accused
Venkataraman as recorded under Section 164 of the Code and found that the said material is
not capable of being converted into legal evidence later on after framing the charges.

We may, at the outset, point out that there is no use with the said statement attributed to the
third accused Venkataraman on account of two reasons. First is that the said author of the
statement has already been arraigned in the case and a charge has been framed against him.
Second is that on a reading of the statement we have noticed that it is exculpatory in nature.
Hence the said statement can only lie in store and no court can possibly treat it as evidence.

Shri Sushil Kumar, learned senior counsel who argued for respondent Jaylalitha contended that
if the said statement is to be kept at bay there is nothing else to connect the respondent with the
criminal conspiracy alleged. He submitted that there is no material to indicate that respondent
had ever come to know of the adverse remarks made by V. Sundaram in the file concerned as
those notes happened to be on those sheets which were missing from the Current File. If that
be so, according to the learned senior counsel, respondent could only have acted on the
recommendations submitted by the departmental heads in the Note, and on the proposals
prepared by the high officials in the bureaucracy. No head of the executive can in such
circumstances be asked to answer any charge of criminal conspiracy, according to Shri Sushil
Kumar.

On the other hand Shri Shanti Bhushan, learned senior counsel presented before us a number
of materials and circumstances which, according to him, are sufficient to bring home the guilt
of the respondent. He submitted that it is for the respondent to controvert those circumstances
by participating in the trial and defend herself and if she fails in that endeavour she would end
in conviction of the offences being the inevitable consequence thereof. Learned senior counsel
on that premise attacked the order of discharge passed by the Special Judge and made a forceful
onslaught on the order passed by the learned Single Judge of the High Court for not correcting
the mistake committed by the Special Judge.

76
At this stage we have to proceed on a premise that a criminal conspiracy was hatched in respect
of import of 2 million metric tonnes of coal during the relevant period. Such a premise can be
adopted as the Special Judge, after hearing both sides, has decided to frame charge against the
other nine accused persons presuming that there was such a conspiracy and those nine accused
have involved themselves as the conspirators therein. Hence the only question now to be
considered is whether at this stage such a presumption can be stretched towards respondent
Jayalalitha as well.

Chapter II of the Evidence Act - deals with "of the Relevancy of Facts." One particular
provision included in that Chapter to deal with evidence relating to criminal conspiracy is
Section 10. It is useful to have a look at that section at this stage. Therefore, we may now refer
to Section 10 of the Evidence Act.

"10. Things said or done by conspirator in reference to common design.- Where there is
reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons believed to be so conspiring,
as well for the purpose of proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it."

The question of using anything said, done or written by any one of such conspirators would
arise only if the facts would help to sustain the first limb of the section i.e. there is reasonable
ground to believe that two or more persons have conspired together to commit an offence.
Unless the court has some materials to believe that respondent is one of those persons referred
to in the first limb of the section, so far as the conspiracy in this case is concerned, any
consideration for what she had said, done or written would not be a relevant fact as against
each of the conspirators. Nevertheless, it is open to the court, even at this stage to consider the
materials relating to what an accused would have said, done or written with reference to the
common intention between the accused for the purpose of deciding whether there is reasonable
ground to believe that the said accused would have been one of the conspirators. In State vs.
Nalini {1999 (5) SCC 253} a three Judge Bench of this Court has stated the legal position thus
regarding the first limb of Section 10 of the Evidence Act:

"The first condition which is almost the opening lock of that provision is the existence of
`reasonable ground to believe' that the conspirators have conspired together. This condition

77
will be satisfied even when there is some prima facie evidence to show that there was such a
criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by
one of the conspirators becomes substantive evidence against the other, provided that should
have been a statement `in reference to their common intention'. Under the corresponding
provision in the English law the expression used is `in furtherance of the common object'. No
doubt, the words `in reference to their common intention' are wider than the words used in
English law {vide Sardar Sardul Singh Caveeshar v. State of Maharashtra(AIR 1965 SC
682)}."

So now what we have to consider is whether the materials are sufficient to show the prospect
for holding that "there is reasonable ground to believe" that respondent Jayalalitha would also
have been at least one of the conspirators, if not the kingpin of it.

In the above context it is useful to notice the office held by the other persons against whom the
Special Court framed the charge in the same case for the offence of criminal conspiracy. They
can be shown by reference to the rank allotted to each of them in the challan submitted by the
police. A-2 was the Minister in the cabinet of respondent Jayalalitha for the portfolio relating
to PWD. A-3 was the Chief Secretary, A-4 was the Chairman of the Electricity Board, A-5 and
A-6 were the Secretaries to Government of Tamil Nadu in the Finance and Industries
departments respectively. A-7, A-8 and A-9 were members of the Electricity Board and A-10
was the Chief Engineer of the Electricity Board (Coal Wing).

Shri Shanti Bhushan submitted that the above officers would not have even dreamt of
committing a criminal conspiracy for knocking off such a fabulous fund of the Tamil Nadu
Government without the direct, active and positive involvement of the then Chief Minister,
particularly due to the peculiar set up of the ministerial network arranged by the respondent
herself. For that the first circumstance which learned senior counsel highlighted is a
Government Order issued by the State Government on 6.11.1991. This was issued almost soon
after respondent assumed the office of Chief Minister of the State. The said Government Order
pointed out that there was no uniformity in the procedure followed by the public sector
undertakings in the State regarding settlement and purchase of contracts and tenders, and hence
it was considered essential that proper scrutiny is exercised before approval of such tenders
and contracts. So the Government ordered that prior approval of the Government should be
obtained in respect of all the tenders and all the purchases "where the value of the contract
exceeds Rs.one crore". It was directed that the file shall, therefore, be circulated to the

78
concerned Minister, Minister of Finance and the Chief Minister for such proper scrutiny and
prior approval.

The next circumstance pointed out is the D.O. letter which respondent herself addressed to the
then Union Minister for Coal (Shri P.A. Sangma). The letter was sent on 8.10.1991 seeking
permission to import 7 lacs tonnes of coal from Australia. But the Union Minister discouraged
her from buying coal from outside India, by pointing out the following:

"As reported by Coal India Ltd., these power stations had a coal stock of 7.95 lakh tonnes at
the end of October '91 as compared to 0.44 lakh tonnes at the end of March '91. I have also
been told that because of large stocks, TNEB has not been lifting coal from Paradeep,
Vishakapatnam and Haldia Ports as per programme. As such it would appear that TNEB prima-
facie does not have any justification for importing any coal for the present. They would be well
advised to accumulate as much indigenous coal as possible so that they have comfortable stocks
during this busy season."

The respondent did not stop there and she addressed a D.O. letter dated 30.7.1992 to the Prime
Minister requesting him to accord special permission to the aforesaid Electricity Board for
importing one million tonnes of coal "as a one time measure, on an emergency basis free of
import duty." Referring to the said letter which respondent has addressed to the Prime Minister
the Central Minister for Coal wrote a reply to her on 29.9.1992, informing her that the stock
position of coal at the three Thermal Power Stations of TNEB was quite comfortable. A chart
was given by him showing the stock at the three different power stations. The Central Minister
therefore advised the respondent against import of coal.

It appears that the respondent was insistent on importing coal in spite of the strong advice
against it. However, even those persons who opposed such import had subsequently yielded to
her insistence. Nonetheless the Central Government put a rider that such import shall be routed
through Central Government. It was in the wake of the above materials that the next
circumstance was projected against the respondent as she did not agree to abide by the said
rider as well and it was decided to import coal directly through the State and not via the Centre.

Shri Shanti Bhushan invited our attention to the strong language used by Shri V. Sundaram
(PWD Secretary) for castigating the proposal for importing coal, as per his letter dated
26.5.1993, addressed to the Chairman of the Electricity Board, with copies to all members of
the Board. Some of the excerpts of the said letter are the following:

79
"The question how these two Indonesian sources, whose original offers stipulated maximum
C.V. of 6000 will meet the requirements of TNEB whose minimum stipulation of C.V. is 6000
baffles me. ........................... In fact the specifications of these 2 Indonesian supply sources is
so divergent from TNEB tender specification in so many critical elements that they should not
merit even a cursory look as can be seen from the table below."

After giving the table in his letter Shri V. Sundaram further noted that "in fact High Moisture
and High Volatile matter alone should eliminate these two Indonesian sources. I have been
advised that the combination of High Total Moisture and High Volatile Matter could prove to
be deadly", and he concluded thus:

"These are only some of the points that come to my mind immediately. All in all, I am very
uncomfortable about the way this tender has been issued and processed. I have a feeling of
lurking uneasiness that we will one day discover yet another bloomer which might land us all
in considerable embarrassment, besides involving TNEB and Government in protracted legal
wrangles and heavy losses, apart from unseemly public controversy."

On 18.6.1993, the Secretary of the Ministry of Coal, New Delhi, sent an urgent communication
to the Chairman of the Electricity Board as well as to Shri V. Sundaram. The relevant portion
of the communication reads thus: "In view of sufficient stock of coal available with the Tamil
Nadu Power Stations there is no justification for import of coal. Moreover the time limit for
import of coal expires in September 1993. One cannot visualise as to how import will
materialise within these few months. I request any case be opposed to any extension of
concessional duty facility beyond September 1993. I have been informed that tender
specifications have been drawn in such a manner that it will exclude domestic producers from
bidding. If that is true it will be unfortunate. Kindly appreciate that import of coal on
concessional duty has been allowed to give fair and competitive chance to the domestic
producers also."

Shri Ramachandran, a Joint Secretary to Government, strongly wrote against accepting the said
tenders in his Note dated 22.6.93. It is not necessary to extract the whole Note as the same is
replete with warnings against the proposal. Yet we may extract only the barest relevant portion:

"It is apprehended that an excess of Rs.8,64,93,100/- has to be incurred by the Tamil Nadu
Electricity Board on account of the present recommendation of the tender proposal by the
Tamil Nadu Electricity Board vide Annexure 6 at page 39 of flag A. Further, the quality of
Indonesian coal is poor and could cause fire explosion in the mill."

80
The above note has been fully concurred by Shri Sundaram by further writing the following in
his note dated 23.6.93:

"I have explained the difficulties to Minister (PWD). The tender proposal may be returned to
the Board for various reasons like admitting certain firms with post - tender clarification and
proposing allotment of quantities to them besides other infirmities."

It is pertinent to point out that the above materials are included in the Current File which was
submitted to the respondent. There is no case for the respondent that the above were not in that
File when she scrutinised it nor is it anybody's case that those warnings were included only in
the missing sheets. If respondent came to know of those prompt warnings and despite them she
accorded her green signal to import the coal, how could it be concluded at this premature stage
that she was not aware of the serious implications of the clandestine deal on the State
exchequer.

We again repeat that at this stage we are proceeding on the assumption that there was a criminal
conspiracy to commit the offence under Section 409 of IPC and Section 30(2) of the PC Act,
because the trial court has chosen to frame charge against the co-accused including one Cabinet
Minister who was working under the respondent. Shri Shushil Kumar contended that it is not
necessary that she would have read those portions in the Notes. Alternatively he contended that
even if she had read those notes she would have been persuaded to grant permission on the
strength of the later note submitted in same Current File.

Shri Shanti Bhushan, learned senior counsel, on the other hand, contended that it is next to
impossibility that the Chief Minister would have missed the above materials, particularly when
it was her Government which wanted through the G.O. dated 6.11.1991 that all the files shall
be routed through the Chief Minister for her "proper scrutiny" regarding any venture of public
sector undertakings involving more than a crore of rupees. The said G.O. was issued with the
idea that without the specific scrutiny and supervision of the Chief Minister no approval should
be granted.

Learned senior counsel further contended that if the Chief Minister had read the whole Note of
Shri V. Sundaram it is for her to put forth satisfactorily that she was convinced in spite of such
warnings that the deal was genuine and in the best interest of the State or that she had discussed
those points with the said Secretary and she had good reasons to overrule the objections. We
find force in the said contention that until the respondent affords satisfactory explanation the
court can presume that she was aware of the serious consequences of the deal on the State

81
exchequer as pointed out by the said PWD Secretary. Court can also presume at this stage that
there are reasonable grounds to believe that she was involved in the conspiracy as envisaged
in Section 10 of the Evidence Act.

In the written submission presented by the learned counsel for the respondent it is contended,
inter alia, that when the "Current File" reached respondent as Chief Minister the relevant sheets
were missing therefrom and hence she acted on the latest Note put up by the officials of the
department which was countersigned by the same V. Sundaram on 7.7.1993. On the said
premise learned counsel argued - why should a conspiring Chief Minister be kept in the dark;
why should the pages at all be removed and the File renumbered if respondent was a co-
conspirator?

Sri Shanti Bhushan invited our attention to the statement recorded from Sri V.Sundaram
under Section 161 of the Code on 13.12.1996 in which there is a narrative of the details of the
circumstances in which he had to initial a Note prepared by the other departmental heads
including the Chief Secretary (A3). The aggressive and truculent role attributed to a lady by
name "Sasikala" looms large in the said statement of V.Sundaranm and that he was veritably
threatened that he would be dismembered if he would persist with his opposition to the
clearance of the proposal to import the coal. Learned counsel submitted that prosecution would
prove that the said Sasikala was the surrogate of the respondent and wielded considerable
influence on her during the relevant time.

We would choose to refrain from dealing with the above contention, lest any comment made
by us may turn out to be detrimental to one or the other side of the case. Nevertheless, it is for
the prosecution to explain how certain relevant sheets were found missing and whether
respondent had any knowledge of and also why the respondent should have caused them to be
removed. This is not the stage for weighing the pros and cons of all the implications of the
materials nor for sifting the materials presented by the prosecution. The exercise at this stage
should be confined to considering the police report and the documents to decide whether the
allegations against the accused are "groundless" or whether "there is ground for presuming that
the accused has committed the offences." Presumption therein is always rebuttable by the
accused for which there must be opportunity of participation in the trial.

For all the above reasons we have no doubt in our mind that the court would not, and should
not, have discharged the respondent at this premature stage in respect of the offences charged
against the other nine accused persons.

82
Therefore, we set aside the order passed by the Special Court discharging respondent J.
Jayalalitha and that of the High Court which confirmed the said order. We direct the Special
Judge to proceed against the respondent as one of the accused in the case. Regarding the
witnesses already examined by the prosecution we permit the prosecution to treat the
examination-in-chief already done as part of the evidence recorded in this case with all the
accused on the array. Prosecution can elicit from those witnesses any further materials and they
can be recorded as the remaining portion of the examination-in-chief. Thereafter the respondent
shall have full opportunity to cross-examine such witnesses as though the entire chief
examination was conducted with her on the array of the accused. This provision is made by us
for avoiding unnecessary delay and repetition of re-recording the evidence already recorded.
On completion of examination of such witnesses prosecution can examine any remaining
witnesses. Thereafter, trial can proceed in accordance with law.

If respondent Jayalalitha seeks permission to dispense with her presence in the trial court it is
open to her to file an application for the same before the Special Judge. The Special Judge shall
exempt her from personally appearing after recording her plea, if she agrees to abide by the
following conditions:

(1) A counsel on her behalf would be present in the court whenever the case is taken up.

(2) She would not dispute her identity as the particular accused in the case.

(3) She would be present on any day when her presence is required by the court.

It is needless to say that if she fails to abide by any of the above conditions it is open to the
Special Judge to revoke the aforesaid benefit granted to her.

The appeal is disposed of accordingly.

83
CONCLUSION

For the sake of providing justice our law makers have given this provision that if required then
a case can be transferred from one court to another. The system has to be bit flexible to suit the
necessity of the situation. Anything, whatever the situation may be should not come in the way
to providing justice to the victim. A law is made for the people, for their betterment and good.
People are not made for law. It is the utmost duty of a state to ensure justice to its citizens so
that they can live happily, peacefully and with safety. The criminals and wrong doers must
have a fear of law in their minds. They should be well aware of the fact that they cannot harm
anyone with any level of ease and that the system does take it very seriously.

For the convenience of the people our system gives courts the power to transfer the cases from
court to court and from one place to other. This power should not be taken for granted but.
Only grounds which the court thinks fit that they are hampering with the process of justice will
be entertained and not any random excuses.

Section 406 of the Code of Criminal Procedure provides power to the Supreme Court to
transfer criminal cases and appeals unfinished in one high court to another high court or from
a criminal court subordinate to one high court to a different criminal court of equal or superior
jurisdiction subordinate to another high court. The Supreme Court will act under the section
only on the application of the Attorney General or of a party interested. If an application
under Section 406 of the Code of Criminal Procedure is dismissed, the Supreme Court may, if
it is of opinion that the application was trivial or vexing order the applicant to pay by way of
compensation to the respondent such total will not be exceeding Rs 1000.

In Maneka Sanjay Gandhi v. Miss Rani Jethmalani, Justice Krishna Iyer observed as follows:
“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the
central criterion for the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or simple handiness of legal services or like
mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the
point of read of public justice and its attendant surroundings, is needy if the Court is to exercise
its power of transfer; this is the cardinal principle though the circumstances may be myriad and
vary from case to case.

The law respects and takes care of the needs and desires of the people and in return the people
must also respect the law and consider it as the supreme commander and well-wisher of the
nation.

84
 BIBLIOGRAPHY

BARE ACT:

- THE CONSTITUTION OF INDIA

ONLINE REFERENCES:

 https://www.netlawman.co.in/ia/transfer-of-petition

 http://www.legalserviceindia.com/Supreme-court/Transfer-of-Petition-in-
India.html

 http://lexspeak.in/2016/07/transfer-petition

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