In the case of Umesh Kumar Sharma Vs State of Uttarakhand & Ors. [Transfer Petition Crl No. 534-536 of 2019] Supreme Court held that only when fair justice is in peril, a plea for transfer might be considered.

The present petitions were filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand.

The petitioner submitted that he apprehends a threat to his life and will be prejudiced in conducting his defense in the courts at Dehradun. The basic premise for such apprehension was on account of his work as an investigative journalist against the Ruling dispensation, the State was targeting the petitioner for vindictive prosecution. It was pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister, his relatives, and associates in the State of Uttarakhand and therefore he was being targeted for malicious prosecution within the State.

The Respondent State submitted that the petitioner has failed to demonstrate how and in what manner, he will be prejudiced if the trials continue in the courts at Dehradun. According to the respondent, the effort of the petitioner was filed only to delay the proceedings. It was also pointed out that since the investigation in all three cases is concluded and the charge sheet has been filed, the apprehension of interference in the cases by the State administration as contended was wholly unfounded. The government advocate then submitted that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand.

The court referred to the list of cases pending against the petitioner. Out of those cases, 17 cases were related to the State of Uttarakhand, 4 cases were from the State of Uttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases were from Delhi out of which one is under investigation of the CBI, and another one at Ranchi, Jharkhand. Whether those cases are without merit or otherwise, can be determined only through trial. However, the numbers do suggest that the petitioner is not an ordinary person. It was also noted that the State had withdrawn prosecution in many cases filed against the petitioner.

The court relied on the case of Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, where the three-Judge Bench, had enunciated the law on transfer under Section 406 CrPC with the following observation – “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances”.

The court observed that “The above legal enunciations made it amply clear that transfer power under section 406 of the Code was to be invoked sparingly. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person.”

Court further re-iterated that, “While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.”

Finally, after hearing both the parties court held that, “When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this court finds it difficult to accept that the cases are on account of journalistic activities of the petitioner. In view of the forgoing, these Transfer Petitions are dismissed.”

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