Transfer of Criminal Trials & Fair Trial•3 min read•(2004) 3 SCC 767 : AIR 2004 SC 524

K. Anbazhagan v. Superintendent of Police and Others

Bench: Division Bench (S.N. Variava & H.K. Sema, JJ.)
Transfer Petitions — Civil & Criminal Across States
Read the full judgment on Indian Kanoon
Core Legal Ratio Decidendi

"A criminal trial may be transferred to another State where the circumstances give rise to a reasonable apprehension that a free and fair trial, a sine qua non of Article 21, cannot be had there; actual bias need not be shown, and the conduct of the prosecution and the course of the trial are relevant."

I
Step 1

Issues Before the Court

  1. (i)

    Whether two prosecutions under the Prevention of Corruption Act, 1988 against J. Jayalalithaa and others, pending before a Special Court in Chennai, should be transferred out of Tamil Nadu under Section 406 of the Code of Criminal Procedure, 1973?

  2. (ii)

    What must a party seeking the transfer of a criminal trial show: actual bias, or a reasonable apprehension that a fair trial cannot be had?

R
Step 2

Law & Rules Applicable

  1. (i)

    Code of Criminal Procedure, 1973, Section 406 (power of the Supreme Court to transfer criminal cases and appeals), now Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

  2. (ii)

    Constitution of India, Article 21, of which a free and fair trial is a sine qua non.

  3. (iii)

    Code of Criminal Procedure, 1973, Section 313 (examination of the accused) and Indian Evidence Act, 1872, Section 154 (questions by a party to its own witness).

A
Step 3

Application to Facts & Circumstances

The petitioner, a political opponent of the principal accused, sought the transfer of two corruption cases against J. Jayalalithaa and others, one of them alleging the acquisition of assets of about ₹66.65 crores disproportionate to known sources of income. Both were pending before a Special Court in Chennai. After the principal accused became Chief Minister in May 2001, the course of the trial changed markedly.

The Court noted that 76 prosecution witnesses had been recalled, many after they had already been cross-examined, and that 64 of them resiled from their earlier testimony; that the Public Prosecutor had not opposed the applications for recall and had taken no steps under Section 154 of the Evidence Act to treat them as hostile; that three Public Prosecutors had resigned after the change of government; and that the principal accused had been allowed to answer the questions under Section 313 through counsel, a procedure unknown to law.

A case is transferred where a party shows circumstances from which it can be inferred that he entertains a reasonable apprehension that justice will not be done. The question is not whether the court is actually biased, but whether the circumstances give rise to such an apprehension. Justice must not only be done but be seen to be done.

The circumstances created a reasonable apprehension, in the minds of the public at large, that a free and fair trial was not possible in the State.

C
Step 4

Conclusion & Ruling

  1. (i)

    The petition was allowed and the cases were transferred to Bangalore. The State of Karnataka was to constitute a Special Court there, and to appoint a Special Judge and a senior Public Prosecutor, with the trial to proceed from day to day.

  2. (ii)

    The Public Prosecutor was empowered to recall the witnesses who had resiled and to seek to treat them as hostile; all the accused were to appear in person for their examination under Section 313; and Tamil Nadu was to transmit the records and produce the witnesses.

  3. (iii)

    The decision is a leading example of a transfer ordered because the conduct of the prosecution undermined confidence in a fair trial in the State.

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