Friday, July 26, 2013


  IN THE SUPREME COURT OF INDIA


                    CRIMINAL APPELLATE JURISDICTION


                TRANSFER PETITION (CRL.) NO. 45 OF 2012




Rajesh Talwar                                                          .... Petitioner


                                          Versus


Central Bureau of Investigation & Ors.                                 .... Respondents




                                           WITH


                TRANSFER PETITION (CRL.) NO. 46 OF 2012




Nupur Talwar                                                           .... Petitioner


                                          Versus


Central Bureau of Investigation & Ors.                                 .... Respondents





                                         ORDER


1.     Dr.   Rajesh  Talwar   has   filed   Transfer   Petition   (Crl.)   no.   45   of   2012


and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012.


These petitions have been filed under Section 406 of the Code of Criminal


Procedure,   1973,   praying   for   the   transfer   of   Special   Case   No.   01/2011


pending   before   the   Court   of   the   Special   Judicial   Magistrate   (CBI)


                                             2



Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi.


Both these petitions are being  disposed of by a common order,  because


the   prayers   made   are   identical   and   are   based   on   the   same   grounds,


arising out of the same factual background.


2.     Before   dealing   with   the   grounds   raised   by   the   petitioners,   it   is


necessary to briefly record the sequence of events leading to the filing of


the instant transfer petitions.  The prosecution under reference pertains to


the   murder   of   Aarushi   Talwar,   daughter   of   the   two   petitioners,   namely,


Dr.   Rajesh   Talwar   and   Dr.   Mrs.   Nupur   Talwar,   on   the   night   intervening


15.5.2008   and   16.5.2008.     On   16.5.2008,   Dr.   Rajesh   Talwar   got   a   first


information   report   registered   at   police   station,   Sector   20,   Noida,   alleging


that   their   domestic   help   Hemraj   had   committed   the   murder   of   their


daughter   Aarushi   Talwar.     On   the   following   day,   i.e.,   on   17.5.2008,   the


body of Hemraj was  also found  on  the roof  of the petitioners'  residence.


Hemraj had also been murdered.   On 23.5.2008, Dr. Rajesh Talwar  was


arrested   by   the   State   Police.     On   24.5.2008,   Dr.   Rajesh   Talwar   was


produced before the Chief Judicial Magistrate, Gautam Buddh Nagar.  On


27.5.2008,   the   Chief   Judicial   Magistrate,   granted   police   custody   of


Dr.   Rajesh   Talwar   till   30.5.2008.     Even   though   the   matter   was   originally


investigated   by   the   State   Police,   on   29.5.2008,   investigation   was


transferred   to  the  Central   Bureau   of  Investigation   (hereinafter   referred   to


                                              3



as "the CBI").   The CBI then recorded a separate first information report.


On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.


3.     Having   concluded   the   investigation,   the   CBI   filed   an   application


(purported to be an application under Section 169 of the Code of Criminal


Procedure),   asserting   lack   of   incriminating   evidence   against   Dr.   Rajesh


Talwar.  In the application it was also asserted, that further judicial custody


of   Dr.   Rajesh   Talwar   was   unnecessary.     Accordingly,   on   11.7.2008,   the


Special   Judicial   Magistrate   (CBI)   Ghaziabad,   ordered   the   release   of   Dr.


Rajesh Talwar, on bail.


4.     On   29.12.2010,   a   closure   report   was   submitted   by   the   CBI   before


the   Special   Judicial   Magistrate   (CBI)   Ghaziabad.     It   was   contended


therein, that sufficient evidence was not available to prove the guilt of Dr.


Rajesh Talwar, in the murder of his daughter Aarushi Talwar.  Accordingly,


a prayer was made for the closure of the case due to insufficient evidence.


Since Dr. Rajesh Talwar was the author of the first information report dated


16.5.2008,   notice   of   the   aforesaid   application   came   to   be   issued   to  him.


On 25.1.2011,  Dr. Rajesh Talwar  filed  a  detailed  protest  petition.    By an


order   dated   9.2.2011,   the   Special   Judicial   Magistrate   (CBI)   Ghaziabad,


rejected   the   prayer   made   by   the   CBI   for   closure   of   the   case   due   to


insufficient   evidence.          Simultaneously,   the   Magistrate   summoned


Dr. Rajesh Talwar  and Dr. Mrs. Nupur Talwar  to face trial under Section


302   read   with   Section   34   and   Section   201   read   with   Section   34   of   the


                                              4



Indian Penal Code.  The summoning order dated 9.2.2011 was assailed by


the petitioners by filing Criminal Revision no. 1127 of 2011 before the High


Court   of   Judicature   at   Allahabad.     The   aforesaid   challenge   made   under


Section 482 of the Code of Criminal Procedure, was rejected by the High


Court on 18.3.2011.   Dr. Rajesh Talwar assailed the order passed by the


High   Court   by   filing   Special   Leave   Petition   (Crl.)   No.   2981   of   2011,


whereas,  the  said order  was  assailed  by Dr. Mrs.  Nupur  Talwar   by filing


Special Leave Petition (Crl.) No. 2982 of 2011.   The challenge raised by


the petitioners was declined by this Court vide an order dated 6.1.2012 (in


Special   Leave   Petition   (Crl.)   No.   2982   of   2011   filed   by   Dr.   Mrs.   Nupur


Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of


2011   filed   by   Dr.   Rajesh   Talwar).     The   aforesaid   rejection   order   dated


9.1.2012 is being extracted hereinbelow:-


       "We   have   heard   learned   counsel   for   the   parties.     It   appears   that

       pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68

       of   2012   titled   "Dr.   Mrs.   Nupur   Talwar   versus   C.B.I.   Delhi   &   Anr.",

       whereby this Hon'ble Court upheld the order dated 9.2.2011 of the

       Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01

       of 2011 whereby cognizance was taken, the petitioner herein would

       appear  before  the Special Judicial Magistrate  (CBI), Ghaziabad  on

       4.2.2012 which, we understand, is the date fixed for hearing.

               It is also not in dispute that the petitioner Dr. Rajesh Talwar is

       on bail since 2008 virtually by an order dated 11th July, 2008 and he

       also furnished bail bond pursuant to that order.   In that view of the

       matter,   we   direct   the   petitioner   -   Dr.   Rajesh   Talwar   to   remain   on

       bail.     It  is  understood   that   the   petitioner   has   already  deposited  his

       passport   and   the   same   is   lying   with   the   Court   of   the   learned

       Magistrate.  In the meantime, the petitioner shall not leave the local

       Police   Station   without   obtaining   the   permission   of   the   learned

       Magistrate.


                                                5



               With this order, the present Special Leave Petition is disposed

       of.     We  make   it   clear   that   this   order   will   not   prevent   either   of   the

       parties   from   moving   such   application   as   they   are   entitled   to   in

       accordance with law."


5.     The instant two transfer petitions seeking transfer of the proceedings


in Special Case No. 01/2011 from the Court of Special Judicial Magistrate


(CBI) Ghaziabad, to a Court of competent jurisdiction at Delhi/New Delhi,


have   been   separately   filed   by   Dr.   Rajesh   Talwar   and   Dr.   Mrs.   Nupur


Talwar,   primarily   on   the   grounds   of   convenience   and   personal   security.


During the course of hearing, learned counsel for the petitioners raised the


following contentions on the issue of convenience:-


       (i)     It  was  submitted,  that  after  the  murder  of  Aarushi  Talwar  on


               the   night   intervening   15.5.2008   and   16.5.2008,   for   the


               petitioners to reside in the same premises where the murder


               of   their   daughter   had   been   committed,   had   become


               impossible.     Consequently,   they   had   shifted   their   residence


               from   Noida   to   New   Delhi.     As   such,   it   was   submitted   that   it


               would   be   more   convenient   for   the   petitioners   to   face   trial   in


               Delhi/New Delhi rather than at Ghaziabad.


       (ii)    Ghaziabad,  it  was  pointed  out, was  farther  away  from  Noida


               (where   the   murder   was   committed)   than   New   Delhi.     In   this


               behalf,   it   was   submitted,   that   distance   between   Noida   and


               Ghaziabad is 35 kms., whereas, the distance between Noida


                                       6



         and New Delhi is only 17 kms.   Based on the traffic situation


         between   Delhi   and   Ghaziabad,   it   was   submitted,   that   the


         petitioners   would   have   to   undertake   several   hours   of   travel


         time   to   attend   Court   proceedings   on   each   date   of   hearing.


         This   inconvenience   could   be   avoided   if   the   proceedings   in


         question were transferred from Ghaziabad to Delhi/New Delhi.


(iii)    It was  pointed  out, that since the first information  report  was


         lodged   by   the   CBI   at   New   Delhi   itself,   there   would   be   no


         difficulty in proceeding with the case at Delhi itself.


(iv)     It   was   also   contended,   that   holding   trial   before   a   Court   of


         competent   jurisdiction   at   Delhi/New   Delhi   would   also   be   a


         matter   of   convenience   to   the   prosecuting   agency,   inasmuch


         as, the counsel, as also the officials/officers  of the CBI were


         Delhi/New Delhi based, and they too would not have to travel


         to Ghaziabad on each date of hearing.


(v)      Lastly,   it   was   asserted,   that   a   large   number   of   witnesses


         would  also   have   to  be  summoned  from  outside   U.P.    It  was


         also   pointed   out,   that   these   witnesses   would   have   to


         unnecessarily travel to Ghaziabad.  Just like the petitioners, all


         outside   witnesses   would   likewise   face   avoidable


         inconvenience,   if   the   prayer   made   in   the   instant   petition   is


         accepted.


                                               7



6.      On the issue of personal security, learned counsel for the petitioners


contended, that when the petitioners had gone to attend court proceedings


at   Ghaziabad   on   25.1.2011,   and   whilst   they   were   physically   inside   the


court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious


attack   at   the   hands   of   one   Utsav   Sharma,   with   a   cleaver   knife.     It   was


submitted,   that   Dr.   Rajesh   Talwar   suffered   grievous   injuries   and   was


rushed   to   undergo   several   reconstructive   surgeries   in   the   intensive   care


unit of the Indraprastha Apollo Hospital, New Delhi.   While explaining the


assault, it was pointed out, that Dr. Rajesh Talwar was given three blows


with   the   meat   cleaver   causing   a   grevious   injury   on   the   right   side   of   his


forehead,   which   also   resulted   in   the   rupture   of   a   major   artery,   and   also,


serious injuries on both of his hands.  It was also alleged, that Dr. Rajesh


Talwar was rendered handicapped as a result of the injuries inflicted upon


him by Utsav Sharma, for more than two months.  It was pointed out, that a


first information report was registered by Dr. Dinesh Talwar (brother of Dr.


Rajesh Talwar)  at police station Kavi Nagar, Ghaziabad on 25.1.2011, in


connection with the aforesaid assault.  The aforesaid encounter within the


court   premises,   according   to   learned   counsel   for   the   petitioners,   has


completely shaken  the  confidence  of the petitioners.    The petitioners  are


stated to be under deep fear of attending court-proceedings at Ghaziabad


after the said assault.   Relying on the judgment rendered by this Court in Maneka   Sanjay   Gandhi   Vs.   Rani   Jethmalani,   (1979)   4   SCC   167,   it   was  asserted,   that   this   Court   had   authoritatively   held,   that   the   safety   of   the person of an accused (as also, the complainant) is an essential condition for   participation   in   a   criminal   trial.     Where   safety   itself   is   put   in   peril   by commotion,   tumult   or   threat   on   account   of   pathological   conditions prevalent in a particular venue, it was submitted, a request as the one in the instant case, for transfer of proceedings should be acceded to.  Insofar as   the   present   case   is   concerned,   it   was   submitted   on   behalf   of   the petitioners,   that   the   circumstances   in   the   present   case   have   gone   far beyond the possibility of a physical assault, inasmuch as, a brutal physical attack   has   actually   been   made   on   Dr.   Rajesh   Talwar   (on   25.1.2011). Relying   on   the   judgment   rendered   by   this   Court   in   Zahira   Habibulla   H. Sheikh   Vs.   State   of   Gujarat,   (2004)   4   SCC   158,   it   was   contended,   that justice should not only be done but it should be seen to be done.   It was pointed out, that where circumstances are such that render holding of a fair and impartial trial, uninfluenced by extraneous considerations impossible, an   apprehension   expressed   by   an   individual   seeking   transfer,   should   be accepted   as   reasonable.     Inviting   the   Court's   attention   to   the   incident   of 25.1.2011,   it   was   submitted,   that   there   could   be   no   doubt,   that   in   the circumstances   prevalent   in   the   courts   at   Ghaziabad,   the   apprehension expressed by the petitioners, that they are unlikely to be subjected to a fair and   impartial   trial,   uninfluenced   by   extraneous   considerations,   is   not unreal.  Relying on the judgment rendered by this Court in Central Bureau of   Investigation   (CBI)   Vs.  Hopeson   Ningshen,   (2010)   5   SCC   115,   it  was submitted, that in a case wherein the CBI itself felt that there was  a real  danger of the accused being physically attacked during the course of the trial,   this   Court   came   to   be   approached   (by   the   CBI)   for   transfer   of   the venue of prosecution.  The prayer made by the CBI was acceded to by this Court by observing,  that there could be no quarrel, that there  was  a real possibility of a  physical  attack on  the respondent-accused  so long as he was   at   Manipur.     Yet   again,   it   is   emphasized   by   the   learned   counsel appearing on behalf of the petitioners, that the present case stands on a


far   better   footing,   inasmuch   as,   a   factual   assault   resulting   in   serious


injuries has actually been  suffered  by Dr. Rajesh Talwar  within  the court


premises   at   Ghaziabad.     It   is,   therefore,   contended,   that   the   fear   in   the


minds   of   the   petitioners,   is   not   imaginary.     The   fear   in   the   minds   of   the


petitioners, is very real and bonafide.  In order to support the prayer of the


petitioners   on   the   facts   delineated   hereinabove,   learned   counsel   for   the


petitioners placed reliance on the judgment rendered by this Court in Ravir


Godbole Vs. State of M.P., (2006) 9 SCC 786.   The order relied upon by


the petitioners is being extracted hereinbelow:-


        "1.     We have heard counsel for the parties.

        2.      The   petitioner   is   being   tried   of   an   offence   punishable   under

                Section 307 IPC.   The trial was to take place at Indore but, in

                view  of   the   fact   that   the   rival   gang   has   been   after   his   blood

                and   two   attempts   were   made   on   his   life,   the   High   Court

                transferred his trial to Bhopal.  It appears that even during the

                trial   at   Bhopal   he   was   attacked   a   third   time   and   serious


                                             10



               injuries   were   caused   to   him   which   necessitated   his   being

               admitted to the hospital and an operation being performed to

               repair his damaged liver.

       3.      In these circumstances, the petitioner has prayed that his case

               may   be   transferred   to   any   court   outside   the   State   of   M.P.

               Counsel   for   the   State   does   not   dispute   the   fact   that   the

               petitioner has been attacked  thrice during  this period  and he

               does   face   danger   to   his  life.     Of  course,   the   State   contends

               that   it  will   provide   him   with   protection   such   as   is   considered

               necessary.  We notice that a gunman was deputed to provide

               security   to   the   petitioner   but   despite   that   he   was   attacked   a

               third   time   causing   him   serious   injuries,   and   the   gunman

               deputed   to   protect   him   could   do   nothing   except   to   make

               himself scarce.

       4.      In these facts and circumstances,  we  transfer  Sessions Trial

               No. 65 of 2004 pending before the Special Court (Atrocities),

               Bhopal Sessions Court, Bhopal to the Court of the District and

               Sessions Judge, Nasik who may try the case himself or assign

               the trial to a court of competent jurisdiction.  The record of the

               case shall be immediately transmitted by the Bhopal Sessions

               Court to the Court of the District and Sessions Judge, Nasik.

       5.      This transfer petition is allowed."

                                                                         (emphasis is ours)


7.     It   would   be   relevant   to   notice,   that   in   the   pleadings   of   the   two


transfer petitions, the petitioners have raised a third ground (besides those


of   convenience   and   personal   security,   referred   to   in   the   foregoing


paragraphs).     No   submissions   were   addressed   in   connection   therewith


during   the   course   of   hearing.     Reference   to   the   third   ground   has   been


made in this order only because it was pointed out by the learned counsel


representing the CBI, that the petitioners had alleged, that they were  not


likely to get justice, as it appeared to them, that the Ghaziabad court was


proceeding with the matter with a pre-determined mind.  The cause of the


petitioners   instant     impression   (as   per   the   pleadings),   emerges   from   an


                                               11



application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of


the Code of Criminal Procedure.   In the aforesaid application, Dr. Rajesh


Talwar   had   sought   exemption   from   personal   appearance,   on   the   ground


that he had suffered a physical assault in the court premises on 25.1.2011,


and   had   been   advised   bed   rest.     The   Special   Judicial   Magistrate   (CBI)


Ghaziabad, had rejected the application for exemption, and issued bailable


warrants against Dr. Rajesh Talwar.   Insofar as Dr. Mrs. Nupur Talwar is


concerned,  she too  had  sought  exemption  from  personal  appearance  on


the   ground,   that   she   had   to   file   an   affidavit   at   Allahabad   in   a   criminal


revision   petition,   to   assail   the   summoning   order   dated   9.2.2011(refer   to


paragraph 4 above).   It is submitted, that the application filed by Dr. Mrs.


Nupur Talwar was also declined.  In the order dated 28.2.2011 the Special


Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants


against the petitioners.  From the aforesaid determination, it was sought to


be   inferred,   that   the   petitioners   were   not   likely   to   get   justice,   as   the


Ghaziabad   Court   was   proceeding   with   the   matter   with   a   pre-determined


mind.


8.       During  the  course  of hearing,  another  ground  was   also canvassed


on behalf of the petitioners, although no mention thereof had been made in


the pleadings of the two transfer petitions.   During the course of hearing,


our attention was invited by the learned counsel appearing on behalf of the


petitioners,   to   an   affidavit   dated   24.2.2012   filed   by   Shri   Praveen   Kumar


                                            12



Rai, Advocate.  The said Shri Praveen Kumar Rai, in his affidavit, interalia


deposed,   that   on   25.1.2011,   the   Special   Judicial   Magistrate   (CBI)


Ghaziabad, had noticed the sensitivity of the case and had, by invoking the


court's   inherent   power   under   Section   327   of   the   Code   of   Criminal


Procedure, directed,  that no person would  be allowed  to enter  the court-


room except the parties to the case or their respective counsel; yet during


the course of hearing on 4.2.2012, a lot of media-persons and advocates


unrelated to the case, were present inside the court-room.   While dilating


on   the   court   proceedings   conducted   on   4.2.2012,   without   disclosing   the


identity of any particular counsel/advocate, it was averred in paragraphs 5


and 6 (of the affidavit dated 24.2.2012) as under:-


       "5.    That one of the advocates, who on earlier occasion has been

              rebuked by the Ld. Magistrate and certain strictures have also

              been   passed   against   him   as   well,   was   also   present   in   the

              Court room.   It is pertinent to mention  here that on 7.1.2011

              the said counsel had filed an application and thereafter during

              the course of arguments on the said application misbehaved

              with the Court and others therein.   The Ld. Magistrate in her

              order   dated   21.1.2011   while   dismissing   the   application

              disapproved   the   behaviour   of   the   counsel   and   passed

              strictures   after   warning   him   for   future.     However,   the   said

              warning   and   strictures   have   not   affected   him   at   all.     He   not

              only   interfered   in   the   case,   but   also   attempted   to   stop   the

              counsels   for   the   petitioner   herein   from   advancing   their

              submissions.     The   deponent   immediately   brought   this   to   the

              notice   of   the   Ld.   Magistrate   but   to   no   avail   and   the

              interruptions   continued   in   the   proceedings.     It   is   germane   to

              state   that   the   concerned   advocate   does   not   represent   either

              the prosecution or the accused persons and thus, no privilege

              of hearing can be extended to the concerned advocate.  A true

              translated   copy   of   the   order   dated   21.1.2011   is   annexed

              herewith and marked as Annexure A-2.


                                                13



        6.       That faced with such a perilous situation the counsels did not

                 have   any   option   but   to   file   an   application   before   the   Ld.

                 Magistrate   for   taking   appropriate   actions   and   passing

                 necessary directions in the matter.  The said application is still

                 pending.  A photocopy of certified copy of the said application

                 dated 4.2.2012 is annexed herewith and marked as Annexure

                 A-3."


It   is   also   necessary   to   extract   hereunder   the   application   dated   4.2.2012


(appended   as   Annexure   A-3   to   the   affidavit   dated   24.2.2012)   of   Shri


Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar:-


        "Sir,

                 It is most respectfully submitted that in the above noted case

                 the applicants counsels appear before the Hon'ble Court today

                 to   move   application   in   the   light   of   order   passed   by   Hon'ble

                 Supreme   Court   in   Transfer   Petition.     The   counsel   for

                 applicants   were   restrained   by   some   other   Advocates   who

                 have   no   concern   with   the   case   during   the   course   of   their

                 submission.   This happened even when, the order passed by

                 Hon'ble Court dated 25.1.2011 U/s 327 Cr.P.C. is still in force.

                          It   is,   therefore,   most   humbly   prayed   that   in   the   above

                 said   reason   and   in   the   interest   of   justice  Hon'ble   Court   may

                 kindly   restrained   the   persons   and   advocates   who   have   no

                 concerned   in   the   case   by   entering   in   the   Court   room   during

                 the hearing of the case."


Based on the aforesaid factual position it is contended that the petitioners


have   strong   reservations   whether   unimpaired   proceedings   are   at   all


possible in the case in hand.  It is therefore contended, that it would be in


the   fitness   of   the   matter,   to   transfer   proceedings   in   the   case,   from


Ghaziabad to Delhi/New Delhi


9.      We   have   recorded   hereinabove   the   four   different   grounds   under


which   the   petitioners   have   sought   to   press   their   claim   for   transfer   of   the


                                              14



proceedings   pending   before   the   court   of   the   Special   Judicial   Magistrate


(CBI), Ghaziabad, U.P., to a court of competent  jurisdiction at Delhi/New


Delhi.   It would be appropriate and in the fitness of matters to first record


the response of the learned Senior Counsel representing the CBI to each


of   the   issues.     The   submissions   of   the   learned   counsel   representing   the


respondents are therefore being summarized hereinafter:-


10.    As   noticed   in   paragraph   5   hereinabove,   the   foremost   contention


seeking   transfer   of   proceedings   from   Ghaziabad   to   Delhi/New   Delhi   is


based on the inconvenience of the petitioners to travel from New Delhi to


Ghaziabad on each date of hearing.  In so far as the instant aspect of the


matter  is concerned, it was  the contention of the learned counsel for the


respondents, that shifting of the residence of an accused cannot be a valid


justification for seeking transfer, nor is the place where the first information


report   was   registered   by   the   CBI   relevant   for   the   said   purpose.     It   is


submitted  that the identity of the jurisdictional court is determined  on the basis   of   the   provisions   of   the   Code   of   Criminal   Procedure,   wherein


residence   of   the   accused   and   the   place   of   registration   of   the   first


information   report   are   inconsequential.     In   so   far   as   the   inconvenience


alleged   by   the   petitioners   to   travel   to   Ghaziabad   is   concerned,   it   was


brought to our notice that 72 of the witness likely to be produced during the


course of the prosecution under reference, are located in the State of Uttar


Pradesh,  whereas, 61 witnesses are from Delhi or from outside  U.P.   Of


                                             15



the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees


of   the   Central   Forensic   Science   Laboratory   or   the   All   India   Institute   of


Medical Sciences, New Delhi; 6 witnesses are from telephone companies,


20 witnesses have been examined earlier out of which some are relations


of the petitioners  themselves; and of the remaining  two  witnesses one is


from Punjab and the other is from Haryana.  It is also submitted, that none


of the 61 witnesses, to be produced from Delhi or from outside U.P., have


expressed inconvenience to depose before the Special Judicial Magistrate


(CBI), Ghaziabad, U.P.   It is contended, that the distance between Noida


and   Ghaziabad,   as   also,   between   Noida   and   Delhi   depicted   in   the


submissions   advanced   by   the   learned   counsel   for   the   petitioners   are


irrelevant.  It is submitted, that the issue of jurisdiction is never determined  on the basis of distance(s), but is based on the territorial jurisdiction of the court within which an offence has been committed.  It is submitted that Dr.


Rajesh   Talwar   and   Dr.   Mrs.   Nupur   Talwar   have   been   attending   court


proceedings at Ghaziabad since 2008, i.e., for the last about three years.


It   is   pointed   out,   that   neither   of   the   petitioners   ever   expressed


inconvenience to participate in the court proceedings at Ghaziabad hitherto


before.    However,  all these pleas are being  raised  only after  the  Special


Judicial   Magistrate   (CBI),   Ghaziabad,   U.P.,   by   his/her   order   dated


9.2.2011   had   summoned   the   petitioners   to   face   trial   under   Section   302


read with Section 34 of the Indian Penal Code, and Section 201 read with


                                               16



Section   34   of   the   Indian   Penal   Code,   in   connection   with   the   murder   of


Arushi   Talwar.     It   is   accordingly   submitted   that   the   plea   raised   by   the


petitioners   for   transfer   of   proceedings   on   the   basis   of   inconvenience,   is


wholly trumped up and ought to be rejected.


11.     In   so   far   as   the   second   issue   canvassed   at   the   hands   of   the


petitioners on the ground of personal security is concerned (see paragraph


6   hereinabove),   learned   Senior   Counsel   representing   the   respondents


invited   our   attention   to   the   counter   affidavit   filed   on   behalf   of   the


respondent-CBI, wherein, while repudiating the contention advanced at the


hands   of   the   petitioners,   it   has   been   pointed   out   that   the   attack   on   Dr.


Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011 was at the


hands   of   a   psychologically   disturbed   person   hailing   from   Varanasi,   who


had come to Ghaziabad from Ahmedabad (in Gujarat).   It is therefore the


contention of the learned counsel for the respondents, that the attack was


not aimed at interfering with the petitioners right to defend themselves, but


because   of   mental   imbalance   of   the   attacker.     It   is   submitted,   that   the


same   person   Utsav   Sharma   had   also   attacked   DGP   Rathore   in   a   court-


premises at Chandigarh, prior to having attacked Dr. Rajesh Talwar.   It is


therefore   contended,   that   the   physical   attack   on   Dr.   Rajesh   Talwar   was


certainly not aimed  at disrupting   court-proceedings  or interfering  with  the


defence of the petitioners.  As such, it is submitted that the aforesaid stray


incident   cannot   be   a   justifiable   basis   for   seeking   transfer   of   proceedings


                                            17



under Section 406 Cr.P.C. from the court of the Special Judicial Magistrate


(CBI),   Ghaziabad,   U.P.   to   some   other   court   of   competent   jurisdiction   in


Delhi/New   Delhi.     Learned   counsel   representing   the   respondents   also


pointed out, from the counter affidavit filed by the CBI, that the Sessions


Judge,  Ghaziabad   had  personally   reviewed   the  security  arrangements  in


the   entire   court-premises   at   Ghaziabad,   whereupon,   security/police


personnel have been deployed to prevent any similar untoward incident in


future.  It was also brought to our notice, from the counter affidavit filed by


the CBI, that the venue of the proceedings relating to the petitioners, has


been  shifted   to  a  new  building,   which  has  a  proper   boundary   wall  on  all


sides, with only one small entrance.  The counter affidavit also records an


assurance,  that  as  and  when  the  case of  the  petitioners  will  be  fixed  for


hearing, proper police force will be deployed by the local administration, to


ensure safety and security of the petitioners.  It is therefore the contention


of the learned Senior Counsel representing the CBI, duly supported by the


learned counsel for the State of Uttar Pradesh, that all possible care will be


taken, for the safety and welfare of the petitioners.


12.    Even   though   learned   counsel   representing   the   petitioners   did   not


canvass the third ground (see paragraph 7 hereinabove) during the course


of hearing, yet learned counsel for the respondents had expressly drawn


our attention to the same.  The purpose of inviting our attention to the third


ground was to demonstrate, that the petitioners have not even spared the


                                             18



presiding officer of the court.  The petitioners have cast aspersions on the


court itself.   It has been averred in the pleadings, that the petitioners are


not   likely   to   get   justice   from   the   Ghaziabad   court,   because   the   Special


Judicial   Magistrate   (CBI),   Ghaziabad,   U.P.   by   his/her   order   dated


28.2.2011 had declined the prayer made by the petitioners for exempting


them   from   personal   appearance,   and   since   the   petitioners   had   not


appeared on 28.2.2011, the court had issued bailable warrants against the


petitioners.     This,   according   to   the   learned   Senior   Counsel   representing


the   respondents,   can   never   constitute   a   valid   basis   for   drawing   any


inference   against   a   court,   specially   when   the   challenge   raised   by   the


petitioners   in   assailing   the   order   dated   28.2.2011   (declining   exemption


from   personal   appearance,   and   ordering   issuance   of   bailable   warrants),


before the High Court of Judicature at Allahabad was rejected.  In fact, it is


the contention of the learned Senior Counsel for the respondents, that the


insinuation levelled on behalf of the petitioners is contemptuous in nature,


and   calls   for   initiation   of   proceedings   against   the   petitioners   under   the


Contempt   of   Courts   Act,   1971.     Based   on   all   the   submissions   recorded


hereinabove,   it   was   the   contention   of   the   learned   counsel   for   the


respondents,   that   even   the   third   ground   raised   by   the   petitioners   for


seeking transfer of proceedings under Section 406 of the Code of Criminal


Procedure, cannot be accepted.


                                                 19



13.     In   so   far   as   the   last   contention   is   concerned   (see   paragraph   8


hereinabove), the same was based on the affidavit of Shri Praveen Kumar


Rai,   Advocate,   dated   24.2.2012.     It   was   submitted   at   the   hands   of   the


learned   counsel   for   the   respondents,   that   there   was   no   occasion   for   the


respondents to repudiate the same, as the factual position depicted therein


does  not emerge  from the pleadings  of the transfer  petitions  filed  by the


two petitioners.  It is therefore the contention of the learned counsel for the


respondents,   that   the   petitioners   should   not   be   permitted   to   press   the


instant   ground   for   seeking   transfer.     Be   that   as   it   may,   it   is   further   the


contention   of   the   learned   Senior   Counsel   representing   the   respondents,


that the allegations  contained  in the affidavit dated  24.2.2012 are vague,


as   the   identity   of   the   counsel   who   attempted   to   stop   the   counsel


representing the petitioners from advancing their submission, has not been


disclosed.     In   the   application   allegedly   filed   on   4.2.2012   (appended   as


Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the


counsel   who   restrained   the   counsel   representing   the   petitioners,   from


making   his   submissions   has   also   not   been   disclosed.     Accordingly,   it   is


asserted   that   the   allegations   made   in   the   last   submission   being   vague


cannot be relied upon to accept the prayer of the petitioners for transfer of


proceedings under Section 406 of the Code of Criminal Procedure.


14.     We have noticed hereinabove the grounds of challenge canvassed


at   the   hands   of   the   learned   counsel   for   the   petitioners,   as   also,   the


                                              20



response   thereto   at   the   hands   of   the   learned   counsel   representing   the


respondents.  In so far as the issue of transfer of criminal proceedings from


one court to another under Section 406 of the Code of Criminal Procedure


is   concerned,   it   would   be   in   the   fitness   of   matters   to   examine   the


parameters   laid   down   by   this   Court   for   transfer   of   proceedings.     In   this


behalf reference may, first of all, be made to the decision rendered in Sri


Jayendra  Saraswathy  Swamigal   (II), Tamil Nadu  v. State  of  Tamil  Nadu,


(2005)   8   SCC   771,   wherein   in   paragraph   5,   this   court   recorded   the


grounds   on   which   transfer   was   sought   and   thereafter,   recorded   its   own


determination in paragraph 23.   Accordingly,  paragraphs 5 and 23 of the


judgment are being extracted hereunder:


       "5. The transfer of the case has been sought on several grounds and

       basically speaking they are as under:

       (i)   The   State   machinery   in   Tamil   Nadu   and   specially   the   Special

       Investigation Team headed by Shri Prem Kumar, Superintendent of

       Police,   has   shown   great   zeal   and   has   made   extraordinary   efforts,

       much beyond what is required under the law to anyhow secure the

       conviction  of  the  accused  and   to  achieve   that  object  has  procured

       and fabricated false evidence.

       (ii) The Chief Minister of the State of Tamil Nadu, who is also holding

       the Home portfolio, has made statements on the floor of the House

       that the petitioner and the other co-accused are actually involved in

       the   murder   of   Sankararaman   and   has   also   given   some   press

       statements   and   has   thereby   pre-empted   a   fair   decision   in   the

       criminal trial, as statements of persons holding such high offices and

       specially   those   made   on   the   floor   of   the   House,   are   generally

       believed to be correct and thus the accused stand condemned even

       before the commencement of the trial.

       (iii) A solatium of Rs 5 lakhs was paid by the Chief Minister of Tamil

       Nadu to Padma Sankararaman (widow of deceased Sankararaman)

       on   24-11-2004,   long   before   completion   of   investigation   and


                                      21



submission of charge-sheet, and this was given wide publicity in the

electronic media and newspapers, etc., which shows that the State

Government is taking special interest in the case and is too keen to

secure conviction of the accused in order to justify the stand taken

by it.

(iv) Concocted and false cases have been registered against 16 co-

accused.   Even   before   their   bail   applications   in   the   present   case

could  be  heard,  detention  orders   were  passed  against  them  under

the  Tamil Nadu  Prevention  of Dangerous   Activities  of Bootleggers,

Drug   Offenders,   Forest   Offenders,   Goondas,   Immoral   Traffic

Offenders,   Slum   Grabbers   and   Video   Pirates   Act,   1982   (for   short

"the Goondas  Act") between  16-1-2005 and 6-2-2005 so that even

after grant of bail by the Court they may remain in custody.

(v) The advocates appearing for the petitioner and other co-accused

have been put under great threat on account of lodging of false and

fabricated   criminal   cases   against   them   and   a   situation   has   been

created wherein they may not be in a position to defend the accused

properly. This will also have a general effect as other lawyers would

feel hesitant to conduct the case on behalf of the accused.

(vi) The Mutt  and  other  associated  and  connected  trusts have  183

accounts   in   banks,   which   were   all   frozen   by   SIT   resulting   in

paralysing   the   religious   and   other   activities   of   the   Mutt   and   other

connected bodies.

(vii)   Criminal   cases   have   been   lodged   against   some   leading

journalists of the country and other prominent personalities, who had

written articles criticising the arrest of the petitioner, which not only

violates   right   of   free   speech   but   also   creates   an   atmosphere   of

threat   against   anyone   daring   to   speak   or   write   in   favour   of   the

accused and thus the accused seriously apprehend that they would

not get a fair trial in the State of Tamil Nadu.

(viii)   Shri   Prem   Kumar,   who   is   heading   the   Special   Investigation

Team,   is   not   a   fair   and   upright   officer   and   superior   courts   have

passed   strictures   against   him   several   times   in   the   past   for   his

uncalled-for   actions   in   going   out   of   the   way   to   implicate   innocent

persons in criminal cases.



23.  We   have   discussed   above   many   facets   of   the   case   which   do show that the State machinery in Tamil Nadu is not only taking an undue interest but is going to any extent in securing the conviction of the   accused   by   any   means   and   to   stifle   even   publication   of   any article  or expression  of dissent  in the media  or press,  interview by journalists or persons who have held high positions in public life and are   wholly   unconnected   with   the   criminal   case.   The   affidavits   and the   documents   placed   on   record   conclusively   establish   that   a serious   attempt   has   been   made   by  the   State   machinery   to   launch criminal   prosecution   against   lawyers,   who   may   be   even   remotely connected with the defence of the accused. The Superintendent of Police, SIT and the Police Inspector connected with the investigation even   went   to   the   extent   of   prompting   the   approver   Ravi Subramaniam   to   make   insinuation   against   a   very   Senior   Counsel, who   has   been   practising   for   over   43   years   and   is   appearing   as counsel for the petitioner. The other counsel had to file writ petitions in   the   Madras   High   Court   for   seeking   a   direction   for   transferring investigation of the criminal cases registered against them from the local police  to CBI.  The police  submitted  charge-sheet  against  two junior lady lawyers under various sections of IPC including Section 201 IPC when even accepting every word in the FIR lodged by Smt Chitra, wife of Ravi Subramaniam (approver) as correct, no offence under the said provision is made out. Clause (1) of Article 22, which finds   place   in   Part   III   of   the   Constitution   dealing   with   fundamental  rights,   gives   a   guarantee   to   a   person   arrested   and   detained   to   be defended   by   a   legal   practitioner   of   his   choice.   Section   303   of   the Code   of   Criminal   Procedure   says   that   any   person   accused   of   an offence   before   a   criminal   court   or   against   whom   proceedings   are instituted under the Code, may of right be defended by a pleader of his   choice.   Even  under   the   British  rule   when   the   Code   of  Criminal Procedure, 1898 was enacted, Section 340(1) thereof gave a similar right   to   an   accused.  It   is   elementary   that   if   a   lawyer   whom   the accused   has   engaged   for   his   defence   is   put   under   a   threat   of criminal prosecution,  he can hardly discharge his professional  duty of defending his client in a fearless manner. A senior and respected counsel is bound to get unnerved if an insinuation is made against him in court that he approached the wife of a witness for not giving evidence against the accused in the court. From the material placed before us we are prima facie satisfied that a situation has arisen in the present case wherein the lawyers engaged by the petitioner and other co-accused cannot perform their professional duty in a proper and dignified manner on account of various hurdles created by the State   machinery.   The   lawyers   would   be   more   concerned   with shielding   their   own   reputation   or   their   liberty   rather   than   cross-examining   the   prosecution   witnesses   for   eliciting   the   truth.   The constant   fear   of   not   causing   any   annoyance   to   the   prosecution witnesses specially those of the Police Department would loom large over their mind vitally affecting the defence of the accused. Passing of the detention order against 16 co-accused soon after grant of bail


                                              23



       to the petitioner by this Court on 10-1-2005, which order could be of

       some support in seeking parity or otherwise for securing bail in the

       present   murder   case,   is   a   clear   pointer   to   the   fact   that   the   State

       wanted   to   deprive   them   of   any   chance   to   secure   release   from

       custody.   Even   though   this   Court   has   issued   notice   on   the   special

       leave petition filed by the State against the order of the High Court

       by which habeas corpus petition of the 16 co-accused was allowed,

       yet  the   observations  made  in  the  said   order   show  in  unmistakable

       terms that the even tempo of life was not disturbed, nor was public

       order   affected   by   the   murder   of   Sankararaman   and   the   detention

       order was passed without any basis. Again, the action of the State in

       directing the banks to freeze all the 183 accounts of the Mutt in the

       purported exercise of the power conferred under Section 102 CrPC,

       which   had   affected   the   entire   activities   of   the   Mutt   and   other

       associated   trusts   and   endowments   only   on   the   ground   that   the

       petitioner, who is the head of the Mutt, has been charge-sheeted for

       entering   into   a   conspiracy   to   murder   Sankararaman,   leads   to   an

       inference that the State machinery is not only interested in securing

       conviction   of   the   petitioner   and   the   other   co-accused   but   also   to

       bring to a complete halt the entire religious and other activities of the

       various   trusts  and  endowments   and   the   performance   of  pooja  and

       other rituals in the temples and religious places in accordance with

       the custom and traditions and thereby create a fear psychosis in the

       minds of the people. This may deter anyone from appearing in court

       and   give   evidence   in   defence   of   the   accused.   Launching   of

       prosecution against prominent persons who have held high political

       offices   and   prominent   journalists   merely   because   they   expressed

       some dissent against the arrest of the petitioner shows the attitude

       of the State that it cannot tolerate any kind of dissent, which is the

       most cherished right in a democracy guaranteed by Article 19 of the

       Constitution."                                                    (emphasis is ours)



Reference   may   also   be   made   to   the   decision   rendered   by   this   Court   in


Central Bureau of Investigation (CBI) v. Hopeson Ningshen, (2010) 5 SCC


115,   wherein   this   Court   recorded   its   conclusion   in   the   following


paragraphs:



   "18.  CBI   in   its   capacity   as   the   investigating   agency   has   clearly

   conveyed   the   risks   associated   with   conducting   the   trial   in   Manipur.


                                            24



   Even if one were to concede that the apprehension about social unrest

   and communal tension between the Meteies and the Nagas were a little

   exaggerated, there can be no quarrel that there exists a real possibility

   of   a   physical   attack   on   the   respondent-accused   as   long   as   he   is   in

   Manipur.   It   was   precisely   because   of   this   consideration   that   the

   respondent-accused   is   being   held   in   custody   at   a   distant   location   in

   Delhi.   Furthermore,   conducting   the   trial   in   Manipur   could   also

   reasonably  lead  to more  friction  in  the State  of  Manipur  which  in turn

   could affect the trial proceedings themselves.



   19. We must especially take note of the fact that the killings took place

   in  a  region  where   opinions   are  sharply  divided   on  the   justness  of  the

   causes espoused by NSCN(IM) and that the respondent-accused is a

   member of the same organisation. This creates a risk of intimidation of

   the   witnesses   as   well   as   undue   prejudice   seeping   into   the   minds   of

   those   who   may   be   involved   in   the   legal   proceedings   in   different

   capacities.



   20. In this scenario, in our considered view it would be expedient in the

   ends of justice to conduct the trial in Delhi. We accordingly direct that

   the impugned cases be transferred from the Court of the Chief Judicial

   Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a

   judicial officer of the rank of a Sessions Judge) in New Delhi."

                                                                (emphasis is ours)


The   scope   of   jurisdiction   under   Section   406   of   the   Code   of   Criminal


Procedure was also considered by this Court in Surendra Pratap Singh v.


State   of   Uttar   Pradesh,   (2010)   9   SCC   475,   wherein   this   Court   held   as


under:



   14.  Mr  Gupta  submitted  that   except   for  wild  allegations   made   against

   the investigating authorities and the officials of the State Government,

   nothing substantial has been disclosed from the submissions made on

   behalf of the petitioner which would indicate that either the investigating

   agencies or the prosecuting agency was in any way biased in favour of

   Respondent 2. On the other hand, upon a fair investigation undertaken

   by two  separate  agencies,  which  included  CB CID, it had  been  found

   that   Respondent   2   was   not   in   any   way   connected   with   the   alleged

   incident of 24-6-2005. In fact, at the relevant time, the party to which he


                                             25



   belonged   was   not   in   power   which   would   enable   him   to   influence   the

   course   of  investigation.  Mr.   Gupta  submitted   that   no   interference  was

   called   for   with   the   investigation   reports   submitted   both   by   the   local

   police as also by CB CID, and the transfer petition was, therefore, liable

   to be dismissed.



   15.  We have carefully considered  the submissions  made  on behalf  of

   the respective parties. While the arrest of Respondent 2 may have been

   stayed by the High Court, the circumstances in which the incident had

   occurred   on   24-6-2005   coupled   with   the   fact   that   Respondent   2   was

   returned as an MLA in the same elections, does to some extent justify

   the   apprehension   of   the   petitioner   that   the   perspective   of   the

   prosecution   may  become   polluted.   There  is  no  getting   away  from  the

   fact that Respondent 2 is an MLA and that too belonging to the present

   dispensation. Since justice must not only be done but must also seem to   be   done,   this   case,   in   our   view,   is   an   example   where   the   said idiomatic expression is relevant.



   16.  It would not be proper on our part to dilate on this question further

   during  the pendency of the trial.  We are, however, of the view that in

   order to do fair justice to all the parties, the trial should be held outside

   the   State   of   Uttar   Pradesh   and,   accordingly,   we   allow   the   transfer

   petition   and   direct   that   the   matter   be   transferred  to   the   High  Court  of

   Madhya   Pradesh   which   shall   decide   the   place   and   the   court   before

   which the trial may be conducted."                                    (emphasis is ours)


The issue in hand was also examined by this Court in Nahar Singh Yadav


v.   Union   of   India,   (2011)   1   SCC   307.     Relevant   extract   including   the


parameters delineated by this Court which ought to be kept in mind while


considering an application for transfer and the consideration of the factual


matrix   involved   in   the   controversy   dealt   with   are   being   extracted


hereunder:



       "21. Reverting to the main issue, a true and fair trial is sine qua non of Article 21 of the Constitution, which declares that:

    "21.  Protection   of  life  and  personal   liberty.--No  person  shall  be deprived   of   his   `life'   or   `personal   liberty'   except   according   to procedure established by law."

It   needs   no   emphasis   that   a   criminal   trial,   which   may   result   in depriving   a  person   of   not   only  his   personal   liberty   but   also   his   life has   to   be   unbiased,   and   without   any   prejudice   for   or   against   the accused.  An   impartial   and   uninfluenced   trial   is   the   fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the   confidence   of   a   common   man   in   the   system,   which   would   not augur   well   for   the   society   at   large.   Therefore,   as   and   when   it   is shown that the public confidence in the fairness of a particular trial is likely   to   be   seriously   undermined,   for   any   reason   whatsoever, Section   406   CrPC   empowers   this   Court   to   transfer   any   case   or appeal   from   one   High   Court   to   another   High   Court   or   from   one criminal   court   subordinate   to   one   High   Court   to   another   criminal
court   of   equal   or   superior   jurisdiction   subordinate   to   another   High Court, to meet the ends of justice.


22.  It is, however, the trite law that power under Section 406 CrPC has to be construed strictly and is to be exercised sparingly and with great   circumspection.  It   needs   little   emphasis   that   a   prayer   for transfer   should  be  allowed  only  when   there  is  a   well-substantiated apprehension   that   justice   will   not   be   dispensed   impartially, objectively   and   without   any   bias.   In   the   absence   of   any   material demonstrating   such   apprehension,   this   Court   will   not   entertain application   for   transfer   of   a   trial,   as   any   transfer   of   trial   from   one State to another implicitly reflects upon the credibility of not only the
entire State judiciary but also the prosecuting agency, which would include the Public Prosecutors as well.


XXX     XXX      XXX     XXX



29.  Thus, although  no rigid and inflexible rule or test could  be laid  down   to   decide   whether   or   not   power   under   Section   406   CrPC should   be   exercised,   it   is   manifest   from   a   bare   reading   of   sub-sections   (2)   and   (3)   of   the   said   section   and   on   an   analysis   of   the decisions of this Court that an order  of transfer  of trial is not to be passed as a matter of routine or merely because an interested party has   expressed   some   apprehension   about   the   proper   conduct   of   a trial.  This power  has  to be  exercised   cautiously  and  in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind  while considering an application for transfer of the trial are:

        (i)  when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of
miscarriage   of   justice   due   to   the   lackadaisical   attitude   of   the prosecution;

        (ii)  when   there   is   material   to   show   that   the   accused   may influence   the   prosecution   witnesses   or   cause   physical   harm   to the complainant;

        (iii)  comparative   inconvenience   and   hardships   likely   to   be caused to the accused, the complainant/the prosecution and the witnesses,   besides   the   burden   to   be   borne   by   the   State exchequer in making payment of travelling and other expenses of the official and non-official witnesses;

        (iv)  a   communally   surcharged   atmosphere,   indicating   some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and

        (v)  existence   of   some   material   from   which   it  can   be   inferred that some persons are so hostile that they are interfering or are likely   to   interfere   either   directly   or   indirectly   with   the   course   of justice.



30.  Having   considered   the   rival   claims   of   both   the   parties   on   the

touchstone of the aforestated broad parameters, we are of the view

that the apprehension entertained by CBI that the trial of the case at

Ghaziabad   may   not   be   fair,   resulting   in   miscarriage   of   justice,   is

misplaced and cannot be accepted. From the material on record, we

are unable to draw any inference  of a reasonable  apprehension of

bias   nor   do   we   think   that   an   apprehension   based   on   a   bald

allegation that since the trial Judge and some of the named accused

had been close associates at some point of time and that some of

the   witnesses   are   judicial   officers,   the   trial   at   Ghaziabad   would   be

biased and not fair, undermining the confidence of the public in the

system.   While   it   is   true   that   Judges   are   human   beings,   not automatons,   but   it   is   imperative   for   a   judicial   officer,   in   whatever capacity he may be functioning, that he must act with the belief that he   is   not   to   be   guided   by   any   factor   other   than   to   ensure   that   he shall   render   a   free   and   fair   decision,   which   according   to   his conscience is the right one on the basis of materials placed before him. There is no exception to this imperative. Therefore, we are not
disposed  to  believe  that   either  the   witnesses  or  the   Special  Judge

       will get influenced in favour of the accused merely because some of

       them   happen   to   be   their   former   colleagues.  As   already   stated,

       acceptance of such allegation, without something more substantial,

       seriously   undermines   the   credibility   and   the   independence   of   the

       entire   judiciary   of   a   State.   Accordingly,   we   outrightly   reject   this

       ground   urged   in   support   of   the   prayer   for   transfer   of   the   trial   from

       Ghaziabad.



       31.  As   regards   the   plea   that   the   Court   of   Special   Judge,   CBI,

       Ghaziabad   is   already   heavily   overburdened,   in   our   opinion,   that   is

       again   not   a   ground   for   transfer   of   trial.   If   at   all   the   said   court   is

       overburdened, it will be open to the High Court to request the State

       Government   to   create   another   court   of   a   Special   Judge   at

       Ghaziabad and we are confident that having regard to the nature of

       the   case   and   the   serious   concern   already   shown   by   the   State

       Government   by   issuing   Notification   dated   10-9-2008   promptly   and

       expeditiously,   the   State   Government   will   take   appropriate   steps   in

       that behalf  so that the guilty are brought to book at the earliest not

       only in this case but in other sensitive trials, stated to be pending in

       that court, as well.


       32.  For the aforestated reasons, as at present,  we  do not find any

       merit in the request of CBI for transfer of the trial from Ghaziabad to

       any other place. Accordingly, the prayer is declined. The trial court is

       directed to proceed with the case expeditiously."                      

                                                                              (emphasis is ours)


The   issue   of   transfer   of   proceedings   under   Section   406   of   the   Code   of


Criminal   Procedure   was   examined   by   this   Court   in     Vikas   Kumar


Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178, wherein this Court


observed as under:



       "23.  It   is   true   that   there   must   be   reasonable   apprehension   on   the part  of the party to a case that  justice may not be done  and mere allegation   that   there   is   apprehension   that   justice   will   not   be   done cannot   be   the   basis   for   transfer.   However,   there   is   no   manner   of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused  only because the witnesses are threatened is made out by the petitioner.


       24. This Court, on various occasions, had opportunity to discuss the

       importance   of   fair   trial   in   criminal   justice   system   and   various

       circumstances in which a trial can be transferred to dispense fair and

       impartial justice. It would be advantageous to notice a few decisions

       of this Court with regard to the scope of Section 406 of the Code of

       Criminal Procedure.


       XXX     XXX     XXX     XXX


       29.  From   the   averments   made   in   the   petition   it   is   evident   that   the

       accused belong to a powerful gang operating in U.P. from which the

       State of Uttarakhand is carved out. The petitioner has been able to

       show   the   circumstances   from   which   it   can   be   reasonably   inferred

       that it has become difficult for the witnesses to safely depose truth

       because of fear of being haunted by those against whom they have

       to   depose.   The   reluctance   of   the   witnesses   to   go   to   the   court   at

       Haridwar   in   spite   of   receipt   of   repeated   summons   is   bound   to

       hamper   the   course   of   justice.   If   such   a   situation   is   permitted   to continue, it will pave way for anarchy,  oppression, etc., resulting in breakdown   of   criminal   justice   system.  In   order   to   see   that   the incapacitation of the eyewitnesses is removed and justice triumphs, it   has   become   necessary   to   grant   the   relief   claimed   in   the   instant
petition. On the facts and in the circumstances of the case this Court is of the opinion that interest of justice would be served if transfer of the case from Haridwar to Delhi is ordered."

                                                                               (emphasis is ours)


Last of all reference may be made to the decision rendered by this Court in


Jahid   Shaikh   v.   State   of   Gujarat,   (2011)   7   SCC   762.     The   observations


made by this Court with reference to Section 406 of the Code of Criminal


Procedure, are placed below:



       "39. However, such a ground, though of great importance, cannot be

       the only aspect to be considered while deciding whether a criminal

       trial could be transferred out of the State which could seriously affect

       the prosecution case, considering the large number of witnesses to


                                       30



be   examined   to   prove   the   case   against   the   accused.  The   golden thread   which   runs   through   all   the   decisions   cited   on   behalf   of   the parties, is that justice must not only be done, but must also be seen to be done. If the said principle is disturbed, fresh steps can always  be   taken   under   Section   406   CrPC   and   Order   36   of   the   Supreme Court Rules, 1966 for the same reliefs.



40. The offences with which the accused have been charged are of a   very   serious   nature,   but   except   for   an   apprehension   that   justice would not be properly administered, there is little else to suggest that the   charged   atmosphere   which   existed   at   the   time   when   the offences  were   alleged   to  have  been  committed,   still  exist  and   was likely   to   prejudice   the   accused   during   the   trial.   All   judicial   officers cannot   be   tarred   with   the   same   brush   and   denial   of   a   proper opportunity at the stage of framing of charge, though serious, is not insurmountable.   The   accused   have   their   remedies   elsewhere   and the prosecution still has to prove its case.



41.  As   mentioned   earlier,   the   communally   surcharged   atmosphere

which existed at the time of the alleged incidents, has settled down

considerably  and  is no longer  as volatile  as it was  previously.  The

Presiding   Officers   against   whom   bias   had   been   alleged,   will   no

longer be in charge of the proceedings of the trial. The conditions in

Gujarat today are not exactly the same as they were at the time of

the   incidents,   which   would   justify   the   shifting   of   the   trial   from   the

State   of   Gujarat.   On   the   other   hand,   in   case   the   sessions   trial   is

transferred outside the State of Gujarat for trial, the prosecution will

have   to   arrange   for   production   of   its   witnesses,   who   are   large   in

number, to any venue that may be designated outside the State of

Gujarat.

42.  At the present moment, the case for transfer of the trial outside

the   State   of   Gujarat   is   based   on   certain   incidents   which   had

occurred   in   the   past   and   have   finally   led   to   the   filing   of   charges

against the accused. The main ground on which the petitioners have

sought   transfer   is   an   apprehension   that   communal   feelings   may,

once again, raise its ugly head and permeate the proceedings of the

trial if it is conducted by the Special Judge, Ahmedabad. However,

such an allegation today is more speculative than real, but in order  to dispel such apprehension, we also keep it open to the petitioners that in the event the apprehension of the petitioners is proved to be real during the course of the trial, they will be entitled to move afresh before   this   Court   for   the   relief   sought   for   in   the   present   transfer petition."                                                      (emphasis is ours)


It   is   in   light   of   the   parameters   recorded   by   this   Court   that   we   shall


endeavour to determine the veracity of the prayer made by the petitioners


for transfer of proceedings from the court of the Special Judicial Magistrate


(CBI), Ghaziabad,  U.P., to a court of competent  jurisdiction in Delhi/New


Delhi.


15.     First   and  foremost  we  shall  deal   with   the  ground  of  inconvenience


raised by the petitioners for seeking transfer of proceedings.   In so far as


the   instant   issue   is   concerned,   besides   the   judgments   referred   to


hereinabove,  reference  may be made  to the decision  rendered  in Bhairu


Ram   v.   Central   Bureau   of   Investigation,   (2010)   7   SCC   799,   wherein   the


issue of inconvenience was considered, and this Court held as under:



        "10.  In the case on hand, except convenience, the petitioners have

        not   pressed   into   service   any   other   ground   for   transfer.   In   fact,   Mr

        P.H.   Parekh,   informed   this   Court   that   the   petitioners   are   willing   to

        attend the proceedings at Delhi, if the case is transferred to Special

        Court, CBI, Delhi.



        11.  Mr H.P. Raval, learned Additional Solicitor General, after taking

        us through specific averments made in the counter-affidavit filed on

        behalf   of   Respondents   1   and   2   (CBI),   submitted   that   the   main

        accused Shri B.R. Meena is a very influential person in the State of

        Rajasthan and there is strong apprehension that due to influence of

        Shri B.R. Meena, there would be no fair trial at Jaipur or any other

        place in the State of Rajasthan. He also pointed out that the Court of

        Special Judge, CBI at Greater Mumbai has ample jurisdiction to try

        this   case   because   various   movable   properties   have   been   found   in

        Mumbai   and   the   main   accused,   Shri   B.R.   Meena,   was   posted   in

        Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and


                                    32



this is the period during which most of the properties were allegedly

acquired by him and his family members.



12.  We   have   already   adverted   to   the   fact   that   against   the   main

accused   Shri   B.R.   Meena,   (IRS   1977),   Commissioner   of   Income

Tax,   Income   Tax   Appellate   Tribunal,   Mumbai,   a   case   has   been

registered on 29-9-2005 under Section 13(2) read with Section 13(1)

(e)   of   the   Prevention   of   Corruption   Act,   1988   for   possession   of

assets in his own  name and in the name of his family members to

the extent of Rs 43,29,394 which were disproportionate to his known

sources  of  income   and  could   not  be   satisfactorily  accounted   for.  It

further  shows  that  Respondent  3,  during  the  check  period  i.e.  1-4-

1993   to   4-10-2005,   acquired   assets   disproportionate   to   his   known

sources of income to the extent of Rs 1,39,39,025.



13.  The   petitioners   have   been   charge-sheeted   for   commission   of

offences   under   Section   109   read   with   Section   193   IPC   read   with

Section   13(2)   read   with   Section   13(1)(e)   of   the   Prevention   of

Corruption   Act,   1988   for   having   actively   aided   and   abetted

Respondents   3   to   4   by   fabricating   false   evidence   through

preparation   of   false   agreements   to   sell   with   the   object   to

justify/explain   the   huge   cash   recoveries   from   the   residential

premises   of   Respondent   3.   It   further   reveals   that   the   petitioners

entered into false transactions with Respondent 3 showing receipt of

cash   amounts   against   alleged   purchase   of   immovable   properties

from   him.   The   stamp   papers   were   purchased   against   (sic  after)

registration   of  case  and   false  agreements  to  sell  were  prepared   in

connivance with each other.



14. A perusal of the charge-sheet containing all these details clearly

shows   that   witnesses   to   be   examined   are   not   only   from   Jaipur,

Rajasthan,   but   also   from   various   other   places   including   Mumbai.

Though   the   petitioners   may   have   a   little   inconvenience,   the   mere

inconvenience   may   not   be   sufficient   ground   for   the   exercise   of

power  of transfer  but  it must be  shown  that  the trial in the chosen

forum will result in failure of justice.



15.  We   have   already   pointed   out   that   except   the   plea   of

inconvenience   on   the   ground   that   they   have   to   come   all   the   way

from Rajasthan no other reason was pressed into service. Even, the

request  for transfer to Delhi cannot be accepted  since it would  not

be beneficial  either to the  petitioners  or to the  prosecution. In fact,


                                                33



       the main accused, Respondents 3 and 4 have not filed any petition

       seeking  transfer.  In such circumstances, the plea of the petitioners

       for   transfer   of   the   case   from   the   Court   of   Special   Judge,   CBI,

       Greater   Mumbai   to   Special   Judge,   CBI,   Jaipur   on   the   ground   of

       inconvenience cannot be accepted."                                       (emphasis   is

       ours)


The ground of inconvenience for transfer again came up for consideration


before this Court in Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803,


wherein the Court observed as follows:



       "5.  It   is   true   that   in   cases   of   dissolution   of   marriage,   restitution   of conjugal rights or maintenance,  this Court shows  much  indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings. But a criminal case is on a somewhat different footing. The accused may not   be   able   to   attend   the   court   proceedings   at   Indore   for   many reasons,   one   of   which   may   be   financial   constraints,   but   the consequences of non-appearance of the accused before the Indore Court would be quite drastic.


       6.  Having   regard   to   the   consequences   of   non-appearance   of   the accused in a criminal trial, we are loath to entertain the petitioner's prayer for transfer. In a criminal proceeding, the right of the accused to a fair trial and a proper  opportunity to defend  himself cannot be ignored for the convenience of the complainant simply because she happens to be the estranged wife."                                  (emphasis is ours)


From the two  judgments, referred to hereinabove, it clearly emerges that


inconvenience cannot be a valid basis for transfer of "criminal proceedings"


from   one   court   to   another   under   Section   406   of   the   Code   of   Criminal


Procedure.     Be   that   as   it   may,   we   are   of   the   view   that   the   instant


contention advanced at the hands of the learned counsel for the petitioner


is   wholly   frivolous.     According   to   the   factual   position   depicted   by   the


learned   counsel   for   the   petitioners   themselves,   the   distance   between


                                              34



Noida and Ghaziabad is 35 kms. whereas the distance between Noida and


Delhi is 17 kms.  Based on a simple mathematical conclusion the distance


between   Delhi   and   Ghaziabad   must   be   approximately   52   kms.


(35+17=52).   It  is  ununderstandable  how  a  plea  of   inconvenience   can  be


based   to   avoid   travelling   a   distance   of   merely   52   kms.     Even   if   it   is


assumed that a couple of hours would be consumed for travelling to and


fro   (from   Delhi   to   Ghaziabad   and   back)   the   inconvenience   would   not   be


such   as can   be  the  basis  for   seeking   transfer.    Jurisdiction  of  a  court   to conduct   criminal   prosecution   is   based   on   the   provisions   of   Code   of Criminal Procedure.   Often either the complainant or the accused have to
travel   across   an   entire   State   to   attend   to   criminal   proceedings,   before   a jurisdictional court.   In some cases to reach the venue of the trial court, a complainant   or   an   accused   may   have   to   travel   across   several   States. Likewise, witnesses too may also have to travel long distances, in order to depose   before   the   jurisdictional   court.     If   the   plea   of   inconvenience   for transferring the cases from one court to another, on the basis of time taken to   travel   to   the   court   conducting   the   criminal   trial   is   accepted,   the provisions   contained   in   the   Criminal   Procedure   Code     earmarking   the courts   having   jurisdiction   to   try   cases   would   be   rendered   meaningless. Convenience or inconvenience are inconsequential so far as the mandate of   law   is   concerned.     The   instant   plea   therefore,   deserves   outright rejection.


                                                35



16.     In   so   far   as   the   second   contention   advanced   at   the   hands   of   the


counsel   for   the   petitioner   is   concerned,   transfer   has   been   sought   on   the


issue of threatened personal  security.    The petitioners  believed that their


personal security is at risk on account of a vicious attack with a cleaver's


knife on Dr. Rajesh Talwar, which resulted in his having suffered grievous


injuries not only on his face but on both his hands as well.  The injuries are


stated to have rendered Dr. Rajesh Talwar handicapped for more than two


months.     The   aforesaid   incident   has   allegedly   had   the   effect   of   making


both   the   petitioners   scared   to   attend   any   court-proceedings   at   the


Ghaziabad court-complex.   The case set up by the petitioners is, that the


incident   in   question   has   completely   shaken   the   confidence   of   the


petitioners,   and   that,   it  is   unsafe   for   the   petitioners   to   appear   before   the


Special Judicial Magistrate (CBI), Ghaziabad, U.P. to defend themselves.


Whilst we are of the view that all preventive measures should have been in


place   to   avoid   any   assault   of   the   nature   which   Dr.Rajesh   Talwar


encountered on 25.1.2011, we appreciate the impossibility of the aforesaid


task   specially   when   the   attacker   is   a   person   suffering   from   a   mental


disability.     Such   an   attack   cannot   be   deemed   to   have   been   aimed   at disabling   the   petitioners   to   defend   themselves.     The   physical   assault


suffered by the petitioner was clearly unrelated to their court-proceedings.


In the aforesaid view of the matter, the incident relied upon by the learned


counsel   for   the   petitioners   to   seek   transfer   of   proceedings   by   invoking


                                               36



Section  406  of   the   Code   of  Criminal   Procedure,   is  clearly   misconceived.


Even   otherwise,   the   counter   affidavit   filed   on   behalf   of   the   CBI   is


categorical   on   the   issue   in   hand,   to   the   effect   that   the   Sessions   Judge,


Ghaziabad,   has   personally   reviewed   the   security   system   in   the   entire


court-premises,  security/police  personnel  have been  deployed  so that no


untoward   incident   occurs   in   future.     Additionally,   the   venue   of   the   court-


proceedings   of   the   petitioners   has   been   shifted   to   a   new   building   which


has proper boundary walls on all sides, with only one small entrance.  The


building where the petitioners are required to attend the court proceedings


is therefore totally safe.  In the counter affidavit filed by the CBI it has been


expressed,   that   whenever   the   case   of   the     petitioners'   is   to   be   heard,


adequate police force would be deployed by the local administration.  The


aforesaid undertaking (expressed in the counter affidavit, filed on behalf of


the CBI has been endorsed by the learned counsel representing the State


of Uttar Pradesh.  Even though it has been pointed out that the petitioners


have  not  moved   any  application  either   to  the   Special   Judicial  Magistrate


(CBI),   Ghaziabad,   U.P.   or   to   the   police   for   seeking   protection;   we   are


assured,   if   such   a   request   is   made   at   the   hands   of   the   petitioners,   the


same will be duly considered in accordance with law.   We have extracted


a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar


Rai, Advocate in paragraph 8 hereinabove.   While perusing the aforesaid


affidavit we noticed reference therein to an order dated 25.1.2011 passed


                                                37



in   respect   of   the   proceedings   pending   before   the   Special   Judicial


Magistrate   (CBI),   Ghaziabad,   U.P.     While   dealing   with   the   contention   in


hand,   it   is   necessary   to   place   on   record   the   aforesaid   order   dated


25.1.2011, the same is accordingly being extracted hereunder:-


       "Under   the   circumstances   seeing   the   sensitivity   of   the   case,   by

       invoking   inherent   provisions   under   section   327   Cr.P.C.   the   court

       feels   it   in   the   interest   of   justice   that   during   the   proceedings   of   the

       instant   case   no   person   shall   be   allowed   to   enter   in   the   courtroom

       except for the parties to the case and their respective counsels.

                                                                                                Sd/-

                                                                Special Judicial Magistrate

                                                                             (CBI),Ghaziabad"

                                                                                                   


The   aforesaid   order   reveals   the   seriousness   of   the   presiding   officer


concerned.   So as to ensure not only the safety of the petitioners but also


a free and fair trial, keeping in mind the sensitive nature  of the case, an


appropriate order has already been passed by the presiding  officer.   We


have   no   doubt   in   our   mind,   that   the   order   dated   25.1.2011   shall   be


enforced in letter and in spirit.   In case of breach thereof we would expect


the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate


steps including coercive measures if necessary, to enforce the same.  The


majesty of law must be maintained at all costs.   In the background of the


aforesaid   developments,   we   are   of   the   view   that   the   proceedings   being


conducted   at   the   court-complex   at   Ghaziabad,   cannot   be   termed   as


unsafe, so as to be considered as threatening the personal security of the


petitioners.     As   such,   we   find   no   merit   in   the   prayer   for   transfer   of


                                              38



proceedings   from   Ghaziabad   to   Delhi/New   Delhi   even   on   the   ground   of


personal security.


17.     The   third   ground   raised   by   the   petitioners,   noticed   in   paragraph   7 hereinabove,   needs   no   adjudication   at   our   hands   on   account   of   the   fact that   the   same   was   not   pressed   by   the   learned   counsel   representing   the
petitioners   during   the   course   of   hearing.     The   details   depicting   the   third ground   have   been   noticed   only   because   the   learned   Senior   Counsel representing the respondents  insisted on inviting our attention to the fact that   the   petitioners   had   expressed   baseless   insinuations   against   the presiding officer of the court.  Based on certain insinuations the petitioners
had   asserted,   that   they   were   not   likely   to   get   justice,   as   the   concerned court   was   proceeding   in   the   matter   with   a   pre-determined   mind.     The insinuations levelled by the petitioners  are based on an order  passed by the   Special   Judicial   Magistrate   (CBI),   Ghaziabad,   U.P.   dated   28.2.2011. Learned  counsel for the petitioners advisedly refrained  from pressing  the instant ground during the course of hearing.  Even raising such a ground in the   pleadings,   to   state   the   least,   can   certainly   be   termed   as   most irresponsible.     The   impertinence   of   the   petitioners   in   the   instant   case,   is magnified   manifold   because   the   order   dated   28.2.2011   was   assailed   by the   petitioners   before   the   High   Court   of   Judicature   at   Allahabad,   but   the challenge  failed.    In this view of the matter,  the  insinuations  can also be stated   to   have   been   aimed   even   at   the   High   Court.     Although   we   could have   initiated   action  against  the   petitioners,  yet  in  the  peculiar  facts  and circumstances of this case, we refrain ourselves from doing so.  However, we  consider it just and appropriate to warn the petitioners from any such impertinence in future.


18.    In so far as the last contention advanced at the hands of the learned


counsel   for   the   petitioners   is   concerned,   the   same   was   based   on   the


affidavit  of Shri Praveen  Kumar Rai, Advocate  dated  24.2.2012,  as also,


an application filed by the said counsel on 4.2.2012 (Annexure A-3 with the


affidavit,   independently   extracted   hereinabove).     We   find   merit   in   the


contention   advanced   at   the   hands   of   the   learned   Senior   Counsel


representing   the   respondents,   that   the   application   dated   4.2.2012


(Annexure A-3) as also the affidavit of Shri Praveen Kumar Rai, Advocate,


dated   24.2.2012   are   vague,   and   as   such,   cannot   be   the   basis   of   a


justifiable claim for supporting a prayer for transfer of proceedings, under


Section   406   of   the   Code   of   Criminal   Procedure.     As   pointed   out   by   the


learned  counsel  for the  respondents,  even though  allegations  have been


levelled in the application (dated 4.2.2012) as well as the affidavit (dated


24.2.2012),  that the petitioners  counsel  were  prevented  from  discharging


their   responsibility   appropriately;   neither   the   application   nor   the   affidavit


disclose   what   the   petitioners   counsel   were   prevent   from,   as   also,   the


identity   of   those   responsible.     Therefore,   the   last   contention,   in   our


                                                 40



considered   view,   is   also   devoid   of   any   merit   and   as   such   deserves


rejection.


19.     For the reasons stated hereinabove, we find no merit in the Transfer


Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar.


It   is   not   possible   in   the   facts   and   circumstances   of   this   case   for   us   to


conclude,     that   the   petitioners   will   be   deprived   of   a   free   and   fair   trial   at


Ghaziabad.     We   are   also   satisfied   that   there   is   no   well-substantiated


apprehension,   that   justice   will   not   be   dispensed   to   the   petitioners


impartially, objectively and without any bias.  It is also not possible for us to


accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the


hands   of   a   psychopath   can   be   a   valid   basis   for   transfer   of   the   present


proceedings from Ghaziabad to Delhi/New Delhi.  In view of the measures


adopted   by   the   Sessions   Judge,   the   CBI   and   the   State   Administration


towards  security arrangements  in the court-premises  generally,  and also,


the   special   arrangements   which   the   respondents   have   undertaken   to


make,   with   particular   reference   to   the   petitioners,   we   are   satisfied   that


justice will be dispensed to the petitioners in an atmosphere shorn of any


fear   or   favour.       We   have   extracted   the   order   passed   by   the   Special


Judicial  Magistrate  (CBI), Ghaziabad,  U.P. dated  25.1.2011  in paragraph


16 hereinabove.  We wish to reiterate, that the order dated 25.1.2011 shall


be   enforced   in   letter   and   in   spirit.     In   case   of   breach   thereof   we   would


expect   the   Special   Judicial   Magistrate   (CBI),   Ghaziabad,   U.P.   to   take


                                             41



appropriate steps including coercive measures if necessary, to enforce the


same.   The majesty of law must be maintained at all costs.   We have no


doubt,   that   the   basis   on   which   the   petitioners   are   seeking   transfer   of


proceedings   are   just   speculative   and   unjustified   apprehensions   based


interalia   on   vague   and   non-specific   allegations.     The   instant   Transfer


Petitions   are   accordingly   dismissed.     We   also   wish   to   caution   the


petitioners,   from   making   any   irresponsible   insinuations   with   reference   to


court-proceedings.     The   proper   course   would   be,   to   assail   before   a


superior   court,   any   order   which   may   not   be   to   the   satisfaction   of   the


petitioners, in accordance with law.




                                                          ..................................J.

                                                          (B.S. Chauhan)




                                                          ..................................J.

                                                          (Jagdish Singh Khehar)

New Delhi;

March 2, 2012