Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.This remarkable judgement was passed by the bench of the Supreme Court, consisting of Justice Hrishikesh Roy in the matter of Jatinderveer Arora v State of Punjab, [Transfer Petition (Criminal) No. 452 OF 2019].

5 petitions were filed at the Supreme Court seeking the transferring of proceedings from various courts in Punjab to either a court in Delhi or any state near Punjab owing to the prejudice the accused may suffer. The Guru Granth Sahibji is a religious text against which sacrilege had been committed by a member of the Dera Sacha Sauda Sect.

the petitioner, who is also the accused in the present case has alleged that the situation in Bhatinda and other places is communally surcharged where, fair trial is a near impossibility. To strengthen the contention of the petitioner, the counsel also stated the death of one individual in the jail premises who belonged to that particular sect. further, he also alleged that statement under Section 164 of the Cr.P.C has been forcefully taken from the petitioner.

The counsel representing the state contended that through various instances it can be observed that no prejudice has been caused to the accused. Have they not only been residing in the area without any disturbance but also have been represented by the same two counsels from the beginning of the trial.

The court while keeping in mind the logistical difficulties that might be caused to all other parties if the hearing gets shifted held, This Court is conscious that the matter emanates from the State of Punjab and the accused, the witnesses and the prosecutors are all from the State. If the trial is shifted out, all of them will face difficulties. The State's pleading shows that those accused who have a threat implication have been provided personal security by the district police.

Moreover, as the sacrilege incidents occurred in 2015, with passage of time, the atmosphere is expected to have mellowed down considerably. This can also be gathered from the fact that the petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition.

Further when the counsel for the petitioner relied on judgements like Zahira Habibullah H. Sheikh Vs. State of Gujarat, [(2004) 4 SCC 158] and Sri Jayendra Saraswathy Swamigal regarding the eminent factors that made the court exercise its power to transfer a case.

The Apex court opined:
The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone. One must also be mindful of the fact that when trial is shifted out from one State to another, it would tantamount to casting aspersions on the Court, having lawful jurisdiction to try the case.

Hence powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. If the Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted.

End-Notes:

1. https://www.primelegal.in/wp-content/uploads/2020/11/jatinderveer-j.pdf

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