Supreme Court on Transfer of Criminal Cases

 

Introduction

 

Today we will discuss another judicial pronouncement by the Hon’ble Supreme Court of India in the case of Rajkumar Sabu v. Sabu Trade Private Limited, 2021 SCC OnLine SC 378, wherein vide Order dated 07.05.2021, Section 406 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) that talks about power of the Supreme Court to transfer of criminal cases, was discussed.

 

Facts in Brief

 

In this case, transfer of a Criminal Trial from the Court at Salem (Tamil Nadu) to Patiala House Court, New Delhi, was sought by the Petitioner. A private complaint was filed before a Magistrate in respect of illegal use of a Trademark and in the said Criminal Trial, the evidence of prosecution witnesses was over, and the matter was fixed for appearance of the accused.

 

Some civil suits were also filed in the said trademark dispute matter by the Respondents and the same were transferred by the Supreme Court from Salem to Delhi in the year 2018.

 

Provision of Law Involved

 

406. Power of Supreme Court to transfer cases and appeals.

(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.

 

Grounds of the Petitioner

 

1. Point involved in the Criminal Case is similar to one in the Civil Suits that are now being contested under the jurisdiction of the Delhi Courts.

 

2. Proceedings in Salem are conducted in Tamil language that the Petitioner does not understand.

 

3. It would be more convenient for both the parties if the criminal matter is also heard in Delhi.

 

4. There is a distance of 2000 km from Salem to Petitioner’s place of residence at Indore (MP) and there is no direct connectivity between two places.

 

5. The case of Mridum M. Damle v. CBI, (2012) 5 SCC 706, was also cited to buttress the submission that when a number of witnesses are gravely inconvenienced due to large distance between their place of residence and the place of trial, then there could be deleterious effects on the conduct of the trial and in such cases, a criminal case may be transferred.

 

6. Respondents have influence in Salem and there is apprehension that the Petitioner may not a fair Trial at Salem.

 

Grounds of the Respondents

 

1. There is delay by the Petitioner in approaching the Supreme Court as the Trial that commenced in the year 2018 has already reached the stage of leading of evidence.

 

2. Personal appearance of the Petitioner in the Criminal Trial has been dispensed with by the Trial Court at Salem.

 

3. A criminal case cannot be equated and mixed with a civil case. And there is no bar in law that civil and criminal proceedings cannot go on simultaneously.

 

4. The case of Umesh Kumar Sharma v. State of Uttarakhand, 2020 SCC OnLine SC 845, was cited to argue that mere apprehension that the Petitioner would not get a fair trial at Salem is not enough and he must bring credible evidence or material to support his contention. No such material or evidence has been brought by the Petitioner in the present case.

 

Held by the Court

 

1. Even if it is conceded that the civil cases would have points which could overlap with those involved in the criminal case, yet the same would not justify the transfer. And two different judicial fora are hearing the civil and criminal cases respectively.

 

2. Substantial progress has been made in the criminal case.

 

3. The apprehensions and allegations of the Petitioner do not show any unjust influence of the Respondents in respect of the criminal case at Salem. Therefore, the Petitioner’s case of having a possible tainted trial is unfounded.

 

4. Problem in understanding the language is in itself not a ground for transfer of a case. It may be a weighing factor when the decision to transfer has already been taken by the Court.

 

5. Power under Section 406 of CrPC to transfer a case is to be sparingly used and cannot be exercised on mere apprehensions of one of the parties.

 

6. If the Court hearing a case has jurisdiction to hear the matter, then grounds such as unfamiliarity with the language of the Court cannot be a ground for transfer. Aid of translator could be sought in this regard.

 

7. Convenience of one of the parties cannot be a ground for transfer and powers under Section 406 of CrPC can be exercised only when it is “expedient for the ends of justice.” The present case is not the one.

 

8. The case of Mridul M. Damle (supra) is of no help to the Petitioner as in that case, 88 out of 92 witnesses were from different parts of Maharashtra and it was difficult for them to travel to Delhi.

 

9. The Court cited the case of Rajesh Talwar v. CBI, (2012) 4 SCC 217, wherein it was held that often one of the parties have to travel in a case to reach the court and if the plea of inconvenience is accepted every time, then the contents of Section 406 of CrPC would have no meaning left. It was further stated that “convenience or inconvenience are inconsequential so far as the mandate of law is concerned.”

 

10. Therefore, the Transfer Petition was dismissed.

 

Concluding Remarks

 

Section 406 of CrPC shall come into effect only when it is expedient for the ends of justice. But what is justice? I think in terms of Section 406 of CrPC, justice would mean anything that does not lead to some serious financial disadvantage or evidence regarding possibility of a mistrial or loss of rights or other such issues, to any of the parties. If the mere location of a Court is leading to any of the above, then it would not be expedient for the ends of justice to continue the criminal trial at such a place.

 

Suppose a person is hand to mouth and he is asked to travel long distances, then I think that it would be a travesty of justice in such a case and the case must be transferred in order to do justice to such a person. In the present case, the parties were well-off. Both of them had engaged Senior Advocates and the dispute between them had commercial origins. Further, the Petitioner failed to bring on record any evidence that would justify his apprehensions of not having a fair Trial.

 

I concur with the reasoning of the Court that issues like language and convenience are quite trivial in nature when it comes to transfer of cases. The Code of Criminal Procedure has granted jurisdiction to a particular criminal court to hear and try the matter. Such jurisdiction cannot be taken away so lightly. There must be cogent reasons for doing so.

 

Further, equating civil and criminal cases is never a good idea. Both of them have different courts, different grounds, different procedure and different law that governs them. Just because a criminal matter and a civil matter stem from the same subject-matter, that by itself cannot mean that a transfer of criminal case to the place of the civil case would be justified.

 

Wealthy parties waste a fortune in contesting such frivolous simply because of petty ego issues. I consider such kind of litigation wasteful, not for the advocates but for the parties themselves. I feel that lack of efficacious and speedy modes of alternate dispute resolution is one of the reasons for litigating for the sake of litigating. People think that they can achieve anything with the help of law, but they cannot for law takes its own course and take into consideration the larger picture.