CAPT. AMARINDER SINGH v. PRAKASH SINGH BADAL & ORS

Citation: [2009] 9 S.C.R. 194

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, P. SATHASIVAM, J.M. PANCHAL

Case summary

CAPT. AMARINDER SINGH v. PRAKASH SINGH BADAL & ORS.pdf

Judgment text

[2009] 9 S. C. R. 194 r ,_ CAPT. AMARINDER SINGH v. ·- PRAKASH SINGH BADAL & ORS. (Transfer Petition (Criminal) No. 235 of 2008) MAY 14, 2009 [K. G. BALAKRISHNAN, CJI. , P. SATHASIVAM AND J. M. > PANCHAL, JJ. ] Code of Criminal Procedure, 1973: ss. 406, 407 - Transfer petition - Maintainability of - Held: Maintainable when there is reasonable apprehension on the part of party to case that justice would not be done - Mere allegations that there is apprehension· that justice would not be done would not suffice - Assurance of fair trial is the first imperative '-\Ji'. ' of the dispensation of justice - When it is shown that public confidence in the fairness of a trial would be seriously undermined, th_e· aggrieved party can seek the transfer of a case within the State under s. 407 and anywhere in the country under s. 406 :- Free and fair trial is sine qua non of Article 21 of the Constitution - On facts, accused 11·1ere Chief Minister .

and his relatives and friends - Information furnished showed that except one or two, others were businessmen, agriculturists, ). , employed as Special Inspector in U. T. Chandigarh, and one as Hindi teacher - In that event, if transfer is ordered outside the State of Punjab, it would be difficult for the other accused to attend the Court proceedings on several occasions - Same hurdle would be for other witnesses both on the prosecution as well as defence - Transfer petitions dismissed - Administration ofjustice - Constitution of India, 1950 - Article 21. - ··- ~ The first accused was the Chief Minister of the State of Punjab during the period 1997-2002. The others accused were his family members and his close BADAL & ORS. ' . ,. associates. An FIR was filed against them for alleged acts of corruption committed during the tenure of first accused for collecting black money, owning/possessing Nammi and Benami movable and immovable properties in India and abroad.

Summons were issued by the Special Judge, Ropar. The accused persons filed application before the Special Judge, Ropar raising question relating to the competence and jurisdiction of ·• Special Court, which was dismissed. They filed writ petition which was also rejected. Aggrieved accused filed SLP before this Court, which was also dismissed. As the outcome of the dismissal of SLP, the trial before the Special Court which was suspended all this while was to proceed. Election took place in 2007 and the first accused again assumed power as Chief Minister of "' Punjab. The transfer petitions were filed before this Court on the ground that trial became a sham and a farce designed to meet the ends of the accused who were in the complete control of every aspect of it; the prosecution witnesses were becoming hostile; and the investigating officer virtually resiled from every aspect of investigation. '' Dismissing the transfer petitions, the Court HELD: 1. 1.

A criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of ma/a tides or political mandate of the informant or the complainant. However, if justifiable and reasonable apprehension of miscarriage of justice and likelihood of bias is established, undoubtedly, the proceeding has to be transferred ,. elsewhere by exercise of power under Section 406 Cr. P. C. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice would not be done. It is one of the principles of administration of justice that justice should . not only be done but it shou1d be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. The court has further to see whether apprehension alleged is reasonable or not.

The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. [Para 12] [214-G-H; 215-A~C] Prakash Singh Badal and Ors v. State of Punjab and Ors. (2007) 1 SCC 1; K. Anbazhagan v. Superintendent of Police & Ors. (2004) 3 SCC 767; Abdul Nazar Madani v. State of Tami/Nadu and Anr. (2000) 6 SCC 204; Sri Jayendra Saraswathy Swamigal (//) T. N. v. State of T. N. & Ors. (2005) 8 sec 771, relied on. 1. 2. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispen~e fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr. P. C.

However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the Court to be a reasonable one. [Para 13] [215- 0-F] 2. During the period 1997-2002, the first Respondent was the Chief Minister. An· FIR was launched on 24. 06. 2003 and chargesheet was filed on 22. 11. 2003, BADAL & ORS. ii' citing 138 witnesses to be examined. A supplementary chargesheet was filed on 04. 01. 2004 citing more witnesses. The first Respondent came back to power as the Chief Minister in February, 2007. Out of 138 witnesses only 59 were examined, out of which 35 turned hostile.

Though, it was highlighted that the first respondent was 8 Chief Minister and all other accused were his relatives and friends, the information furnished showed that except .. one or two, others were businessmen, agriculturists, employed as Special Inspector in U. T. Chandigarh, and one as Hindi teacher. In that event, if transfer is ordered outside the State of Punjab, it would be difficult for the other accused to attend the Court proceedings on several occasions. The same hurdle is there for other witnesses both on the prosecution as well as defence. [Paras 14 and 16) [215-G-H; 216-A; 219-E-F] o 3. 1. It is upon the presiding officer/Special Judge and not this Court to evaluate witnesses and arrive at conclusion one way or other depending on the charges leveled against the accused. It would not be fair on the part of this court either to assess and arrive at an opinion about the same.

Even after closing of the prosecution side by the Public Prosecutor, if the Court wants to •, examine some more witnesses from the list furnished by the prosecution, it is for the presiding Judge to take a decision in accordance with the law and issue appropriate direction. [Para 21] [222-H; 223-A-B] 3. 2. The analysis of all the materials, the transfer of the case as sought for; at this stage, is not only against the interest of prosecution but also against the interest of other accused persons, the prosecution witnesses and the convenience of all concerned in the matter. When the complainant was examined as PW 56, he disowned his complaint and asserted that the complaint was not filed by him though he admitted his signature found therein. Further, all important witnesses particularly government officials informed that what they said before the Court was absolute truth and they were forced to make false statement at the time of registering the complaint.

Similar transfer petition which was filed before the High Court ended in dismissal and it became final. The presiding officer of the Special Court is conscious of his power and how to conduct fair trial at the same place. The public prosecutor cannot act on the dictates of the State Government. He has to act objectively as he is also an Officer of the Court. The Special Court is free to assess whether prosecution has established its case. Considering the totality of all circumstances, in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial. trial to the accused, notwithstanding, the nature 0 of the accusations made against them. In the case on hand, the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.

Taking into consideration the entire facts and circumstances of the case and the materials on record, the petitioners have not made out a case that they have reasonable apprehension of not availing justice in the State of Punjab. [Paras 23 and 24] [223-E-H; 224-A-E] Case Law Reference: (2001) 1 sec 1 relied on Para 2 (2004) 3 sec 767 relied on . Para 9 (2000) 6 sec 204 relied on Para 10 (2005) s sec 111 relied on Para 11 CRIMINAL ORIGINAL JURISDICTION : Transfer Petition (Criminal) No. 235 of 2008. BADAL & ORS. .. «. . •> WITH T. P. (CRL) No. 179 of 2008. Altaf Ahmed, P. S. Narasimha, Gaurav Agarwal and Abhijat P. Medh for the Appellant. B' Harish N. Salve, Ashok Desai, Dr. Rajiv Dahavan, Ravi -4. Shanker Prasad, C. S. Vaidyanathan, Vikram Chaudhari, Nikhil Jain, Aparajita Singh, Madhur Seth, D. Mahesh Babu Ajay Pal, Jaishree Anand, Ajay Bansal, Kuldip Singh, Gagan Deep Sharma and Sunil Kumar Jain for the Respondents. The Judgment of the Court was delivered by P. SATHASIVAM, J. 1.

These two transfer petitions have been preferred under Section 406 of the Code of Criminal ~ Procedure, 1973 seeking transfer of the case titled as "State • of Punjab vs. Prakash Singh Badal and Ors. " relating to FIR No. 15 dated 24. 06. 2003 filed under Sections 420, 467, 468, 471 and 120-8 of the Indian Penal Code, 1860 read with Sections 7,8,9, 10, 13 (1) and (2) of the Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Ropar to any other ~ suitable Court of competent jurisdiction in New Delhi. 2. Capt. Amarinder Singh is the petitioner in Transfer i' Petition No. 235 of 2008. Mis Jeet Mohinder Singh, Sukhpal Singh, Gurpreet Singh and Mangat Ram Bansal who are all members of Legislative Assembly are the petitioners in Transfer Petition No. 179 of 2008. Respondent Nos. 1 to 10 are the accused in the case relating to FIR No. 15 and 11th Respondent is the State of Punjab.

Since, facts are common in both the transfer petitions, we propose to dispose of the same by this common judgment. For convenience, reference to parties will be as arrayed in Transfer Petition No. 235 of 2008. 3. Brief facts, as stated in the Transfer Petition No. 235 of 2008, are as follows:- t (a) FIR No. 15 dated 24. 06. 2003 filed under Sections 420. 467, 468, 471 and 120-B of Indian Penal Code, 1860 read with Sections 7, 8, 9, 10, 13(1) ~... and (2) of the Prevention of Corruption Act, 1988 ) was registered at the Police Station Vigilance Bureau, Flying Squad, Mohali on the complaint of one Mr. Balwant Singh son of Mr. Sukhdev Singh. This FIR was filed for offences committed by Mr. ~ Prakash Singh Badal (Accused No. 1 ), Mr. Sukhbir Singh Badal (Accused No. 2) and other family members for alleged acts of corruption committed during the previous tenure of Accused No.

1 as Chief Minister of the State of Punjab for the period 1997-2002, for collecting black money, owning/ possessing Nammi & Benami movable and immovable properties both in India and abroad. )' 4 Summons were issued by the Special Judge, Ropar, Punjab on 01. 12. 2003. (b) Against the summons, Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal filed a Special Leave Petition being SLP (Crl. ) No. 5252 of 2003. Along with these proceedings, they also filed a Transfer Petition before this Court being T. P. (Crl. ) No. 307 of 2003 challenging, inter alia, the jurisdiction of the Special Judge, Ropar. When both the petitions came up for hearing before this Court on 12. 12. 2003, the Special Leave Petition as well as the Transfer Petition were withdrawn by the Accused.. ;Petitioners. The above-said Transfer Petition was withdrawn with liberty to file any other Transfer Petition in future and the same will be considered on its own merits as pleaded in that -1 petition. (c) Mr.

Prakash Singh Badal and Mr. Sukhbir Singh Badal having withdrawn the above Special Leave _.. ... Petition and Transfer Petition, moved an application on 16. 01. 2004 before the Special -. Judge, Ropar raising question relating to the competence and jurisdiction of the Special Court. It was submitted that the Special Court had no jurisdiction in the matter of FIR No. 15 of . 24. 06. 2003 and that it could neither proceed nor adjudicate upon the said matter. By order dated 29. 05. 2004, the learned Special Judge, dismissed the said application holding that it had the requisite jurisdiction in the matter. Aggrieved by that order, on 30. 06. 2004, the accused filed CWP No. 9410 of 2004 before the High Court of Punjab and Haryana at Chandigarh. (d) The High Court heard the said Writ Petition and D. after considering all the legal issues raised by the accused, rejec. dd the same by a detailed judgment dated 02. 09.

2004 directing the Special Judge to conclude the trial as expeditiously as possible and in any case not later than a year from the ... pronouncement of the said judgment. Being aggrieved by this judgment, the accused filed Special Leave Petition being SLP (Civil) No. I, 19640 of 2004 before this Court. ..... (e) By this time, on the issue of law relating to sanction for prosecution in such cases, several Special Leave Petitions were filed before this Court by various Politicians across the country in separate matters relating to the jurisdiction of Special Courts dealing with such allegations of corruption, the cognizance and trial of such offences relating to v' ~ • corruption and other issues as to the requirement of sanction for prosecution. The entire batch of matters and all issues on law were decided by this Court by a detailed judgment dated 06. 12. 2006 in ..... f' the matter of Prakash Singh Badal and Ors vs. State of Punjab and Ors.

, (2007) 1 SCC 1 and the ,-, said special leave petitions filed by the accused came to be dismissed by this Court. As a natural outcome of this dismissal, the trial before the Special Court, which had been suspended all this while was to proceed. ... (f) Elections were to take place in the month of February, 2007 in the State of Punjab. Hence, the Accused (who were also contesting election) sought time before the learned Special Judge and requested that the trial be taken up after the election is over and the result is announced. Thereafter, Accused No. 1 assumed power and position as the Chief Minister of Punjab the entire criminal trial took a completely different turn. ~ (g) On 15. 02. 2007, an application was moved by one of the Accused regarding crucial witnesses and on 21. 02. 2007 another application was filed by the accused for discontinuation/termination of further .... proceedings.

Although both these applications would have serious ramifications on the case of the prosecution and the continuation of the trial, neither )· a cursory reply was filed by the public prosecutor ..... to the above applications nor were they objected to. Thus at this primary stage itself it can be seen that the powerful position of Accused No. 1 occupying the highest political chair in the State as Chief Minister of Punjab was being brought down in full measure on the prosecution. _. .. (h) The allegations against the accused were primarily that of corruption and of amassing assets which were disproportionate to their income. To support this case, one of the primary documents being relied on by the prosecution was a report prepared . ·- . Jr by the Income-Tax Department as regards the -· income/assets and other financial details of the ........ accused. Despite this document being absolutely necessary to prove the case of the prosecution, on 23. 02. 2007 the Investigating Officer, Mr.

Surinder Pal Singh, filed an affidavit before the Special B, Court/trial Court stating that the report prepared by the Income-Tax Department ought not to be considered by the Special Court at the stage of framing of charge. The Investigating Officer, clearly to favour the accused, virtually throttled the case of ~ the prosecution with his own hands by conceding before the Special Court/Trial Court that this crucial ~ piece of evidence in the form of the Income-Tax ·report ought not to be considered. (i) The prosecution and the free and fair trial of the ·matter was already t... ~ing further compromised, is · evident from the fact that while the public prosecutor continued to fail to tender a reply to the above crucial applications filed by the Accused. The accused themselves had stopped bothering to even appear before the Special Court. By this time, Accused No. 1 Mr.

Prakash Singh Badal had -\, formally occupied the chair of Chief Minister of Punjab and was also holding the Portfolio of the Department of Home. (j) When the matter came up for hearing on 01. 03. 2007 and the Special Public Prosecutor Mr. Amar Preet Singh Deal had closed his arguments, an application was moved by the Public Prosecutor Mr. Pardeep Mehta under Section 173 (8) of the _,. -. - Code of Criminal Procedure, 1973 seeking permission to conduct "further investigation". While strangely such an application was made after the Special Public Prosecutor had concluded his H- -, - . I, arguments, it was further made evident that the "". ~ Prosecution was under the pressure of, inter alia, ' Accused No. 1 who was now the Chief Minister of If"'"', Punjab to seek a medium through which the case of the prosecution against the Accused could be weakened. This would naturally be under the garb of such "further investigation" which had now become "necessary". . _}.

(k) Again when the matter came up for hearing on 06. 03. 2007, neither of the accused was present in the Court in spite of the express directions of the Special Court. As far as the applications were concerned, a vague and perfunctory reply was filed by Mr. Pardeep Mehta, the Public Prosecutor, -· which in fact did not even deal with the contentions set out in the said application. There was not even ' a word of objection or opposition to the said """' application. As a matter of fact, the reply filed by the prosecution requested the Court to adjourn these applications and keep them sine die. (I) The public prosecutor Mr. Pardeep Mehta, who had been protecting the interest of the Accused was now made "in charge" of the case, obvim1sly by the J Government headed by Accused No. 1. Further it may be important to note that by now, Accused No. 1 was now in charge of Home Department and more particularly, the Vigilance Department. (m) When the matter once again came up for hearing on 07. 03.

2007, the Court was constrained to note that no proper/final reply had been filed by the Prosecution with regard to the applications filed by _. ~ accused inter alia for discontinuation/termination. (n) Despite a complete lack of assistance and interest on the part of the prosecution, the Special Judge, _, Ropar framed charges against the Accused including Mr. Prakash Singh Badal (Chief Minister 11. In Sri Jayendra Saraswathy Swamigal (//) T. N. vs. State of T. N. & Ors. (2005) 8 SCC 771, this Court has held that if there is reasonable apprehension on the part of a party to a case that justice may not be done, he may seek transfer of the case. It also held that the apprehension and parties must be a reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done. 12.

It is a well-established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala tides or political mandate of the informant or the complainant. .. ... , "°' However, if justifiable and reasonable apprehension of miscarriage of justice and likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by exercise of power under section 406 Cr. P. C. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. 8 It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether apprehension alleged is reasonable or not.

The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. 13. Assurance of a fair trial is the first imperative of the .. dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that tile P~-~blic confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr. P. C. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system.

The apprehension must appear to the Court to be a reasonable one. 14. In the light of the above principles, let us analyse the claim of both parties and find out whether the criminal trial is to be transferred to other State. It was pointed out that with respect to offences committed during the period between 1997-2002, the time when the first Respondent was the Chief Minister, an FIR was launched on 24. 06. 2003 and chargesheet )'- ,... was filed on 22. 11. 2003, citing 138 witnesses to be examined. A supplementary chargesheet was filed on 04. 01. 2004 citing . J more witnesses. The first Respondent came back to power as I the Chief Minister in February, 2007. Out of 138 witnesses only '\ 59 were examined, out of which 35 turned hostile. Mr. Altaf Ahmad, learned senior counsel for the petitioner pointed out that the aspect of selective calling up of witnesses, dropping .

> crucial witnesses, most of the witnesses turning hostile one after another, non-examination of witnesses connected with the transaction and not citing certain witnesses hostile or cross examining them when they resile from the earlier statements, has virtually rendered the trial farcical. Though, in a transfer petition we are not expected to go into the veracity of the statement of the witnesses and their evidential value, since both side cited several instances, we may refer the same without expressing specific opinion on them. According to the counsel ). for the petitioners insofar as valuation of the properties of the accused, though, one Mr. Bharat Shah, Challan Witness No. 114 w~o had visited the properties of the Accused for the purpose of valuation and assessment of the assets of the accused and had recorded a statement under Section 161, was dropped by the prosecution.

On the request of the police that they would not help the case of the prosecution it was pointed out that on the same reasoning Mr. Surinderpal Mitra, . 't Challan Witness No. 116 and Mr. SJ~.. Srivastava were dropped by the prosecution. Likewise, it was pointed out that Mr. Sukhdip Singh Dhindsa, Mr. S. K. Jain, Mr. AK. Goel, Mr, Gurpratap Singh, Mr. Sawtantar Singh, and Mr. Vinarjit Singh were not examined. In the same manner, in respect of allegation relating to Benami transaction some of the prosecution witnesses were either dropped or declared as hostile. It was contended that same was the position in respect of charge relating to bribery; flow of illegal wealth and black money of the accused persons. 15. Though, Mr. Altaf Ahmad and Mr. P. S. Narasimha took us through their evidence let in before the Special Court and 1; their statement recorded earlier under Section 161 Cr. P. C. Mr.

Harish Salve, senior counsel appearing for one of the Respondents by taking us through the same materials demonstrated that there is no basis for the apprehension expressed by the petitioners. It was pointed out that initially Capt. Amrinder Singh was also a member of the same party along with Respondent No. 1 wtro subsequently left the Shiromani Akali Dal on being denied to contest the Assembly Election in 1997. Since then, the petitioner held Mr. Prakash Singh Badal who was the president of the Shiromani Akali Dal at that time, to be responsible for his fate. The petitioner had subsequently joined the Congress. It was further pointed out that in September, 2001 in the Assembly elections in Punjab, the petitioner wrote a letter to Mr. Badal alleging that the latter had amassed properties in India and Abroad which were disproportionate to his known sources of income.

The said ""'letter was published in the Press and wide publicity was given for the purpose of electoral gain in February, 2002. A criminal cony>laint for defamation was filed by Mr. Badal's son Mr. Sukhbir Singh Badal, 2nd Respondent herein against the petitioner. It was pointed out that in the same month i. e. in 2002, the Congress party came to power in Punjab and the petitioner was appointed as the Chief Minister and retained with himself the portfolio of Home and Vigilance. It was further pointed out -t.. that on account of the persistence of the petitioner with his defamatory allegations, the respondent herein also filed · criminal complaint for defamation against the petitioner. In both the said criminal complaints, the petitioner had been the same and served with notice of accusation by the Trial court to face the trial. It is claimed that FIR dated 24. 06. 2003 is almost a verbatim copy of the letter dated 04. 09. 2001 written by the petitioner.

In the counter affidavit filed before us the first ,. I,. respondent has highlighted various other proceedings between the respondents and the petitioner. In the same counter affidavit the evidence given by prosecution witnesses were catalogued and asserted that those witnesses have not supported the case of the prosecution and also emphasized the manner in which t the prosecution set up the false witnesses, pressurized and > threatened them. It is the claim of the learned senior counsel . , appearing for the petitioners that contrary to all known practice • of a conduct of a trial in which the prosecution examines the ~ Investigating Officer at the end of the prosecution evidence so that the statements of hostile witnesses may be proved, in the cases on hand the pub'lic prosecutor, Mr. Pardeep Mehta . > prematurely filed an application for examining the Investigating . , Officer, Mr. Surinaer Pal Singh.

By pointing out the same, learned senior counsel for the petitioners contended that prosecution was so keen that the Investigating Officer be examined out of turn. It is seen that the said application filed by the public prosecutor was dismissed by the trial Court by ~ order dated 20. 08. 2007. The special Court after finding that in case other witnesses turned hostile then Investigating Officer I is to prove their statement, therefore, it will be appropriate if >·· the Investigating Officer is ev:amined after examination of the remaining material witnesses. By saying so, the special Court disposed of the application filed by the public prosecutor. Against the said order, the State of Punjab appealed before the High Court of Punjab & Haryana in CrL Misc. Application No. 45232-M/07. The materials placed show that in the meantime before the Special Court three more witnesses were examined and they also turned hostile. They are: 1. PW 34: Mr. _,,..

Rajinder Singh Garewal, Deputy Director, Horticulture 2. PW ..... 35: Mr. Rajinder Singh, Sub Divisional Engineer, Irrigation, Bhatinda and 3. PW 36: Mr. Vijay Kumar, Junior Engineer, Drainage. · Ultimately, the High Court' disposed of Crl. Misc. Application and passed an order to the effect that in the light of any changed circumstances and/or subsequent events, the public prosecutor deems it appropriate to seek permission of the learned Special Judge to examine the Investigating Officer . ,.. ~ before the remaining witnesses are examined, he may move another application to this effect and if such an application is moved, the learned Special Judge was directed to consider and dispose of the same in accordance with law by ignoring "'. ). the previous order dated 20. 08. 2007. Even thereafter, three ' ~ more witnesses were examined on 26. 11. 2007 & 27. 11. 2007 and they too turned hostile. They are - 1. PW 43: Mr. .... Amandeep Singh Brar, Executive Engineer, PWD 2. PW 44: Mr.

Sukdhip Singh Dhindsa, Executive Engineer, PWD and 3. PW 46: Mr. Surender Singh, Cable Operator. It is further seen that on 04. 01. 2008 two more witnesses were examined who 8 also turned hostile. They are - 1. PW 50: Mr. Jit Singh, Agriculturist and 2. PW 52: Mr. Gurinder Pal Singh, lnspe~tor General of Police, Railways. It was highlighted that those witnesses i. e. PWs 9 to 14, 35 & 36 had not even seen Salasar Farm House, where their services were alleged to have been utilized. Likewise, the other witnesses PWs 1 to 7, 15, 23, 24, 27, 28, 43, 44 and 53 have denied their role in assessing the properties on 1st , 2nd and 3rd November, 2003 i. e. the date of the assessment alleged by the prosecution. Those witnesses filed separate affidavit in the High court stating that on 1st, , 0 " 2nd , 3rd November 2003, when the alleged assessment said to be taken place, they were doing their official work at their respective offices.

These witnesses admitted the fact that they assessed those properties in July, 2003, but their report did not find approval of the Vigilance Bureau. '16. Though, it was highlighted that the first respondent is a Chief Minister and all other accused are his relatives and -i.... friends, the information furnished show that except one or two ... others are businessmen, agriculturists, employed as Special Inspector in U. T. Chandigarh, and one as Hindi teacher. In that event, if transfer is ordered outside the State of Punjab, it would be difficult for the other accused to attend the Court proceedings on several occasions. The same hurdle is there for other witnesses both on the prosecution as well as defence. G· 17. It is relevant to point out that the complainant himself, ... , ,. , namely, Mr. Balwant Singh who was examined as PW 56 resiled stating that the affidavit supporting his private complaint was not filed by him.

He asserted that he had signed these papers for purchase of a vehicle. On the same day 17. 01. 2008/ ... ...... ;\ 18. 01. 2008 when the complainant resiled, PW 53: Mr. Amarjit Singh, SP Vigilance Bureau and PW 55: Mr. Jagdish Singh .. ,,- Khaloan, SP, Ferozepur who were examined on the same date also turned hostile. On the next hearing date i. e. 05. 02. 2008 when the prosecution examined the Investigating Officer, in his examination in chief, he resiled ,from every aspect of the investigation stating that he did not record the witness statements, he signed when he was told to and even the charge sheet was prepared on the computer of a Senior Officer and merely signed by him.

In those circumstances, in view of the fact that many of the officers asserted before the Special Court that neither they were in the respective position as claimed by the prosecutio~- nor they made a statement as recorded under -"I Section 161 which necessitated the public prosecutor closing the prosecution case by giving up remaining PWs as unnecessary. ,_ 18. Coming to the allegadon relating to removal of Special public prosecutors/special counsel and the conduct of the present Public Prosecutor Mr. Pardeep Mehta, on behalf of the S~ate of Punjab, Chief Secretary has filed a counter affidavit dated 29. 04. 2008 explaining the correct position. It is stated that the political system prevailing in India is such that whenever -Government changes or new political party forms the .

}- - Government, all the officers including the Advocate General and _ the Law Officers tender their resignation and new ones, in whom the Government of the day has confidence are appointed by the new Government/Political Parties. The same was also done by the government headed by the petitioner herein which came in power in the year 2002. Relating to the allegations that have been made against the Public Prosecutor Mr. Pardeep Mehta, the Chief Secretary has explained that Mr. Pardeep Mehta had been posted as Deputy District Attorney in the Vigilance ;.. ..... Bureau, Punjab on 26. 09. 2002. He was promoted as District Attorney by Order dated 29. 05. 2006. Pursuant to his promotion as District Attorney vide order 31. 05. 2006 passed by the Principal Secretary, Department of Home Affairs and Justice, : ( CAPT. AMARINDER SINGH v. PRAKASH SINGH .. ;,. -t State of Punjab, he was appointed as District Attorney, Ropi:ir.

Soon after his appointment as Deputy District Attorney, Vigilance Bureau,. Punjab, Mr. Pardeep Mehta had been conducting the prosecution of almost all the cases registered under the Prevention of Corruption Act at Mohali. He had also been assisting various special public prosecutors in the conduct of the trial of the present case, as well as the proceedings before the High Court and in this Court. He relied on the order sheet of the Trial Court with effect from 19. 12. 2096 which, according to him, reveal that Mr. Pardeep Mehta appeared on behalf of the prosecution on each and every date of hearing. I . _. 19. With regard to allegation regarding appointment and removal of other public prosecutors/special counsel, the Chjef Secretary has explained that on 28. 11. 2003 by separate -1, Notification Mr. Amar Pal Singh Randhawa, Advocate, Mr. H. S. Sandhu, Senior Advocate and Mr. Sukhdev Singh Tiwana, Advocate were appointed as Special Public Prosecutor in 'the present case.

On the same day i. e. 28. 11. 2003, Mr. Pardeep Singh, Advocate, Mr. Shiv Dutt Sharma, Advocate and Mr. Amar Ashok Pathak, District Attorney/PP were appointed to assist the prosecution. Mr. U. U. Lalit, Advocate, (now Senior Advocate) on 24. 04. 2004, Mr. Rajiv Dutta, Senior Advocate, -( on 17. 09. 2004, Mr. Amar Preet Singh Deol, Advocate, on 22. 12. 2006 and Mr. R. S. Cheema, Senior Advocate (the th~n Advocate General, Punjab) on 18. 01. 2007 were appointed as special public prosecutors respectively. It was further explained that the order sheet of the Trial Court from time to time shows that Mr. Amar Pal Singh Randhawa, Advocate had never conducted the proceedings before the Trial Court. Mr. Rajlv Dutta, Senior Advocate appeared on 18. 09. 2004 i. e. on one .... ( occasion only. Mr. U. U. Lalit, Senior Advocate, had appeared on 24. 04. 2004, 29. 04. 2004, 04. 05. 2004, 15. 05. 2004, 28. 09. 2004 and 30. 09. 2004, and not thereafter. . ,. 20. As regards the allegation that Mr.

Amar Preet Sing~ t Oedl, Special Public Prosecutor, was manhandled on 28. 02. 2007, Chief Secretary has stated that no complaint was """ filed by him in respect of any such alleged incident. On the other hand, it was pointed out that Mr. Amar Preet Singh Deol had himself written a letter on 12. 03. 2007 to the Secretary (Home); Punjab, Chandigarh, requesting, inter alia, for clearance of his fee bills, and even in this letter there was no mention of any such incident. It was further stated that Mr. H. S. Mattewal was J appointed as Advocate General for the State of Punjab on 02. 03. 2007 and he assumed his office on the said date. 21. As rightly highlighted by the learned senior counsel for the State of Punjab that there is no reason to disregard the above information furnished by the Chief Secretary of the State .... ;. 1 of Punjab. In those circumstances, the allegation relating to removal of Special Public Prosecutors and about Mr. Pardeep Mehta cannot be sustained.

It is also relevant to point out that }before the Court of Special Judge, Ropar, the present Public Prosecutor Mr. Pardeep Mehta made a statement on behalf of the State that on the basis of the police records he had given up prosecution witnesses Mr. Kuldeep Singh, Mr. Bharat Shah, Mr. Amolak Singh and Mr. Surender Pal Mitra as they will not support the case of the prosecution and also stated that he wanted to examine only the witness Jatinder Singh, Sr. No. 5 >--in the supplementary challan, Mr. C. Paramjit Singh, Sr. No. 5, main challan, Mr. Surinder Pal Singh, Sr. No. 137, in the main challan, Mr. Amarjit Singh SP, Sr. No. 99, main challan, Mr. J. S. Kahlon, Sr. No. 34 of main challan, Mr. S. Chatopadhya, Sr. No. 135, main challan and Mr. B. K. Uppal, Sr. No. 136 of main challan. We also verified the statement of the 59 witnesses of which 35 declared as hostile by Public Prosecutor.

The perusal leads to a conclusion that the presiding Judge has made an effort by putting relevant question to those witnesses and taking ,. __ ---.. note of their assertion that they were forced to make incorrect statement at the time of preliminary investigation, the public prosecutor Mr. Pardeep Mehta has declared them as hostile. Ultimately, it is upon the presiding officer/Special Judge and 111111 #. not this Court to evaluate those witnesses and arrive at a conclusion one way or other depending on the charges leveled against the accused. It would not be fair on the part of this court either to assess and arrive at an opinion about the same. Even after closing of the prosecution side by the Public Prosecutor, if the Court wants to examine some more witnesses from the list furnished by the prosecution, it is for the presiding Judge to take a decision in accordance with the law and issue appropriate direction. 22. Though, Mr.

Altaf Ahmad, Learned senior counsel relied on the decisions of this Court in K. Anbazhagan vs. Superintendent of Police & Ors. , S. K. Suk/a & Ors vs. State of U. P. & Ors. and Jayendra Saraswati Swamigal vs. State of Tamil Nadu, (supra) in view of the factual details as seen from the materials placed before the Special Court and the details shown in the form of reply affidavit on behalf of the Respondent -I No. 1 in response to the Transfer Petition No. 235 of 2008 as well as affidavit of the Chief Secretary placing certain factual details, we are of the view that those decisions are not helpful/ applicable to the cases on hand. . 't 23. The analysis of all the materials, the transfer of the case as sought for, at this stage, is not only against the interest of prosecution but also against the interest of other accused -1,. persons, the prosecution witnesses and the convenience of all concerned in the matter.

For the sake of repetition, it is relevant to mention that when the complainant was examined as PW 56, he disowned his complaint and asserted that it (complaint) was not filed by him though he admitted his signature found therein. Further, all important witnesses particularly government officials informed that what they said before the Court alone is absolute truth and they were forced to make false statement at ,. , . ~ the time of registering the complaint. As stated earlier, similar transfer petition which was filed before the High Court ended in dismissal and it became final. We are satisfied that the \ presiding officer of the Special Court is conscious of his power '>:'. and how to conduct fair trial at the same place. We are also of ~ the opinion that the public prosecutor cannot act on the dictates _. of the State Government, he has to act objectively as he is also an Officer of the Court. The Special Court is free to assess whether prosecution has established its case.

We have already pointed out that a mere allegation that there is apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all circumstances, we are of the opinion that in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial trial to the accused, notwithstanding, the nature of the accusations made against them. In the case on hand, the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be .... transferred on a mere allegationthat there is apprehension that justice will not be done. ,_ 24. Taking into consideration the entire facts and circumstances of the case and the materials on record, we are of the view that the petitioners have not made out a case that they have reasonable apprehension of not availing justice in the State of Punjab.

We would like to clarify that we have not i expressed anything on the merits neither of the prosecution case nor the defence of the accused and whatever said in the earlier paragraphs are applicable only for disposal of transfer _... petitions and ultimately it is for the Special Court to decide the issues in the light of the material placed and in accordance with the law. The inevitable conclusion is that both the transfer petitions filed by the petitioners deserve to be dismissed, which we direct. D. G. Transfer Petitions dismissed. >-- .. •