Case Note & Summary
The matter arose from a transfer petition filed by Hazara Singh Gill under Section 527 of the Code of Criminal Procedure, 1898, seeking transfer of two criminal cases under Section 52 of the Prisons Act from the Court of Magistrate First Class, Amritsar, to a competent court outside the State of Punjab. The petitioner was a resident of village Rattoke in Amritsar District and had been elected as a member of the Punjab Vidhan Sabha after defeating the brother-in-law of the Chief Minister. He alleged political victimisation and hostility from influential persons including relatives of the Chief Minister and a Senior Superintendent of Police. He had been arrested in multiple cases, including under the Arms Act and the Indian Opium Act, and had been convicted in the Arms Act case and a Prisons Act case, with sentences confirmed by the High Court. The two pending cases for which transfer was sought had been referred to the Magistrate by the Superintendent, Jail, Amritsar. In his affidavit, the petitioner made several serious allegations, including that excessive bail of rupees one lakh was demanded from him and his family, that his criminal complaint against the Chief Minister's son for threatening his wife was dismissed for default of appearance because he was in jail, and that the jail superintendent purposely referred the cases to the Magistrate to ensure severe punishment. The State of Punjab did not file an affidavit in reply, leaving these allegations uncontroverted. The court noted that in transfer proceedings, it does not examine witnesses and ordinarily acts upon the affidavit of one side or the other; if one side omits to make an affidavit in reply, the affidavit of the other side remains uncontroverted. The court observed that although a general allegation that the magistracy is under executive control cannot be accepted, the real question is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. Applying the principle that justice should not only be done but should be seen to be done, and relying on a previous instance where a case was transferred from Punjab to Saharanpur, the court held that the petitioner had made out sufficient circumstances to infer a reasonable apprehension of denial of justice. Accordingly, the Supreme Court allowed the petition and directed that the two cases be transferred to Saharanpur District and be tried there by a Magistrate chosen by the District Magistrate of Saharanpur according to law.
Headnote
A) Criminal Trial - Transfer of Criminal Case - Section 527 of the Code of Criminal Procedure, 1898 - Unrebutted Affidavit - Where serious allegations are made on affidavit and not specifically denied by the other side, the court must go by the affidavit of the petitioner; the court does not examine witnesses in such proceedings - Held that the petitioner's affidavit remained uncontroverted because the State did not file an affidavit in reply, and the absence of denial meant the allegations were accepted - Transfer petition allowed and cases directed to be transferred outside Punjab (Paras 1-4). B) Criminal Trial - Fair Trial - Reasonable Apprehension of Bias - Justice must not only be done but should be seen to be done - Section 527 of the Code of Criminal Procedure, 1898 - The petitioner, by affidavit, made out sufficient circumstances from which it could be inferred that he entertains a reasonable apprehension that he would not get justice in the State of Punjab because of political rivalry and influence of certain strong parties; the court held that the question is not whether any magistrate could withstand pressure but whether the petitioner reasonably entertains such apprehension - Held that interests of justice demand transfer of the cases outside the State of Punjab (Paras 1-4).
Issue of Consideration
Whether the criminal cases pending against the petitioner should be transferred outside the State of Punjab under Section 527 of the Code of Criminal Procedure, 1898 due to reasonable apprehension of not getting a fair trial.
Final Decision
The Supreme Court allowed the transfer petition and directed that Cases Nos. 33/3 and 33/4 of 1963 be transferred to Saharanpur District and tried there by a Magistrate chosen by the District Magistrate of Saharanpur for their disposal according to law. Held that the petitioner's affidavit, being unrebutted, established a reasonable apprehension of denial of justice; justice must not only be done but seen to be done.
Law Points
- In a transfer petition under Section 527 of the Code of Criminal Procedure
- 1898
- when serious allegations are made on affidavit and not denied by the other side
- the court must act on the uncontroverted affidavit
- the court does not examine witnesses
- transfer is warranted if the petitioner shows a reasonable apprehension that he would not get justice
- justice should not only be done but should be seen to be done.
