# GURCHARANDASCHADHA v. STATE OF RAJASTHAN

- **Citation:** [1966] 2 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 1965-11-24
- **Case number:** Criminal Procedure for the transfer of a criminal case (No. 2 D of 1964
- **Bench:** P. B. Gajendragadkar, M. Hidayatullah, V . .Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurcharandaschadha-v-state-of-rajasthan-3739
- **Pages:** 10

## Headnote

Code of Criminal Procedure, s. 5!7-Supreme Court's power to transfer caus from one State to anoth-Power whether inconsistent
with
1. 7(2) of the Prevention of Corruption Act, (Act 2 of 1941)-Case
triable before special judge of area
within which offence committed,
1vhether can be transferred outside such area.
'Ihe petitioner was a member of an All India Service serving in the
State of Rajasthan. The State Government ordered his trail before the
Special Judge of Bharatpur under s. 120B/ 161 of the Indian Penal Code
uid s. 5(1) (a)(d) and s. 5(2) of the Prevention of Corruption Act.
He moved the Supreme Court under s. 527 of the Code of Criminal
Procedure praying for the transfer of his case to another Stale on various
grounds. On behalf of the State it was contended that the
Supreme
Court could not exercise its powers under s. 527 of the Code of Criminal
Procedure in the matter because s. 7 ( 1) of the Prevention of Corruption
Act required the offences in question to be tried by a special judge only,
and s. 7(2) of the, Act required the offence to be tried by a Special Judge
for the area within which they were committed which condition could
never be satisfied if there was a transfer.
HELD : (i) The, condition in sub-section (I) of s. 7 of the Prevention of Corruption Act that the case must be tried by special judge is
.a sine qua non for the trial of offences in Section 6. This cvndHion can
be satisfied by transferring the case from one special judge to another
special Judge. [684 BJ
Sub-section (2) of s. 7 merely distributes work between special judges
appointed in a State with reference to territory.
This Provision is on a
•
c
D
par w:th the section of the Code of Criminal Procedure whi~h confer
territorial jurisdiction on Sessions Judges and Magistrates.
An order of
F
transfer by the very nature of things must sometimes result in taking the
.case out of the territory. [685 DJ
(ii) The third sub-section of s. 8 of the, Act preserves the application
·of any provision of the Code of Criminal Procedure if it is not inconsistent with the Act save as provided in the first tw.J sub-sections of that
section.
Section 527 of the Code therefore remains applicable, if it is
not inconsistent with s. 7(2) of the Act. There is no inconsistency bet-
·ween s. 527 of the Code and s. 7(2) of the Act because the territorial
jurisdiction created hy the latter operates in a diffe.rent sphere and under
·different circumstances. Inconsistency can only be found if two provisions of law apply in identical circumstances, and create contradictions.
·such a situation does not arise when either this Court or the High Court
-exercises the pQwer of transfer.
Therefore this Couiit in exercise of its
jurisdiction and power under s. 527 of the Code can transfer a case from
a special judge subordinate to one High Court to another special judge
subordinate to another Hii:h Court [ 685 E]
Ramchandra Prasad v. State of Bihar, A.I.R. 1961 S.C. 129, referred
to.
G
H
•
•
•
•
•
G. D. CHADHA v. STATE (Hidayatullah, J.)
6 79
A
(iii) On merits however the petition in the present case could not
succeed. There was nothing in it which would show that there was any
interference direct or indirect
with the
investigation of the
offences
alleged against the petitioner or the trial of the case by the .special judge.
A general feeling that some persons are hostile to the pet1!Ioner 1s n~t
sufficient. The Court has further to see whether the apprehension 1s
reasonable. [686 HJ
·
B
ORIGINAL JuRiSDICTioN: Transfer Petition No. 7 of 1965.
(Under Section 527 of Criminal Procedure Code).
T. R. Bhasin, for the petitioner.
G. c. Kas/iiva/, Advocate-General for the State of Rajasthan,
C K. K. Jain and R. N. Sachthey for the Respondent.

## Text

678
GURCHARANDASCHADHA
v.
STATE OF RAJASTHAN
November 24, 1965
'
{P. B. GAJENDRAGADKAR, c.r., M. HIDAYATULLAH AND
V . .RAMASWAMI, JJ.J
Code of Criminal Procedure, s. 5!7-Supreme Court's power to transfer caus from one State to anoth-Power whether inconsistent
with
1. 7(2) of the Prevention of Corruption Act, (Act 2 of 1941)-Case
triable before special judge of area
within which offence committed,
1vhether can be transferred outside such area.
'Ihe petitioner was a member of an All India Service serving in the
State of Rajasthan. The State Government ordered his trail before the
Special Judge of Bharatpur under s. 120B/ 161 of the Indian Penal Code
uid s. 5(1) (a)(d) and s. 5(2) of the Prevention of Corruption Act.
He moved the Supreme Court under s. 527 of the Code of Criminal
Procedure praying for the transfer of his case to another Stale on various
grounds. On behalf of the State it was contended that the
Supreme
Court could not exercise its powers under s. 527 of the Code of Criminal
Procedure in the matter because s. 7 ( 1) of the Prevention of Corruption
Act required the offences in question to be tried by a special judge only,
and s. 7(2) of the, Act required the offence to be tried by a Special Judge
for the area within which they were committed which condition could
never be satisfied if there was a transfer.
HELD : (i) The, condition in sub-section (I) of s. 7 of the Prevention of Corruption Act that the case must be tried by special judge is
.a sine qua non for the trial of offences in Section 6. This cvndHion can
be satisfied by transferring the case from one special judge to another
special Judge. [684 BJ
Sub-section (2) of s. 7 merely distributes work between special judges
appointed in a State with reference to territory.
This Provision is on a
•
c
D
par w:th the section of the Code of Criminal Procedure whi~h confer
territorial jurisdiction on Sessions Judges and Magistrates.
An order of
F
transfer by the very nature of things must sometimes result in taking the
.case out of the territory. [685 DJ
(ii) The third sub-section of s. 8 of the, Act preserves the application
·of any provision of the Code of Criminal Procedure if it is not inconsistent with the Act save as provided in the first tw.J sub-sections of that
section.
Section 527 of the Code therefore remains applicable, if it is
not inconsistent with s. 7(2) of the Act. There is no inconsistency bet-
·ween s. 527 of the Code and s. 7(2) of the Act because the territorial
jurisdiction created hy the latter operates in a diffe.rent sphere and under
·different circumstances. Inconsistency can only be found if two provisions of law apply in identical circumstances, and create contradictions.
·such a situation does not arise when either this Court or the High Court
-exercises the pQwer of transfer.
Therefore this Couiit in exercise of its
jurisdiction and power under s. 527 of the Code can transfer a case from
a special judge subordinate to one High Court to another special judge
subordinate to another Hii:h Court [ 685 E]
Ramchandra Prasad v. State of Bihar, A.I.R. 1961 S.C. 129, referred
to.
G
H
•
•
•
•
•
G. D. CHADHA v. STATE (Hidayatullah, J.)
6 79
A
(iii) On merits however the petition in the present case could not
succeed. There was nothing in it which would show that there was any
interference direct or indirect
with the
investigation of the
offences
alleged against the petitioner or the trial of the case by the .special judge.
A general feeling that some persons are hostile to the pet1!Ioner 1s n~t
sufficient. The Court has further to see whether the apprehension 1s
reasonable. [686 HJ
·
B
ORIGINAL JuRiSDICTioN: Transfer Petition No. 7 of 1965.
(Under Section 527 of Criminal Procedure Code).
T. R. Bhasin, for the petitioner.
G. c. Kas/iiva/, Advocate-General for the State of Rajasthan,
C K. K. Jain and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
Hidayatullah, J.
This is a petition under s. 527 of the Code
of Criminal Procedure for the transfer of a criminal case (No. 2
D
of 1964--State v. Gurcharan Dass Chadha I.P.S.) which is pending in the Court of the Special Judge, Bharatpur, Rajasthan to another criminal court of equal or superior jurisdiction subordinate
to a High Court other than the High Court of Rajasthan. The
petitioner is the accused in that case and he is being tried under
ss. 120B/161, Indian Penal Code ands. 5(1)(a)(d) and 5(2) of
E
the Prevention of Corruptir,n Act.
The petitioner is a member of an All India Service and his
prosecution has been sanctioned by the Government of India. In
December, 1962, he was serving as Superintendent of Police and
was selected to be Commandant of 8th Batallion of Rajasthan
:F
Armed Constabulary. He avers that he took over as Commandant
on January 7, 1963 but was placed under suspension the same day
and a case was registered on January 12, 1963 which has resulted
in the present prosecution against him. The petitioner apprehends
for reasons to be stated presently that he is not likely to get a fair,
just and impartial trial in the State of Rajasthan owing to the
G
hostility and influence of the then Law Minister who was also
Minister incharge of Home Department of the State, the Additional
Inspector General of Police, Anti-Corruption, and the Deputy
Inspector General of Police, Ajmer Range, Jaipur. In support of
his petition he has referred to many incidents and filed many
docu.ments. He has sworn an affidavit that he entertains an appreH
hens10n that these persons would interfere with the trial of the
case in the State of Rajasthan and that a transfer of the case out·
-side the State is in the interest of ju~tice.
680
SUPREME COURT
REPORTS
(1966] 2 S.C.R.
The State Government has opposed the application strenuA
ously and has questioned the jurisdiction of this Court to transfer
under the powers conferred on it by s. 527 Code of Criminal
Procedure a case made over by the Government of the State of
Rajasthan for trial to a Special Judge under the Criminal Law
Amendment Act, 1952 (Act 46 of 1962). In addition, the State
Government joins issue on the facts alleged and the merits of the
B
claim for the transfer of the case.
While this petition was pending the State Government served
the petitioner with a notice and a charge•sheet to show cause why
he should not be proceeded against for breach of Rule No. 8 of the
All India Services (Conduct) Rules, 1954, because he had communicated "directly /indirectly official documents and information to Government servants/ other persons to whom he was not
authorised to communicate such documents/information" as
indicated and detailed in a statement of allegations accompanying
the notice and the charge. The State Government has appended
c
to this charge two appendices giving details of 31 and 16 docuI>
ments respectively, which were said to have been so communicated
by the petitioner to his counsel Messrs. R. K. Rastogi and D. P.
Gupta, Advocates of Jodhpur and others named as "non-petitioners" in a writ petition which he harl filed in the High Court
of Rajasthan (No. 794 of 1964) and which he subsequently withdrew on December 23, 1964 before taking action to file the present petition. The notice, the charge and the statement of allegations accompanying them were signed by Mr. Vishnu Dutt Sharma,
Special Secretary to Government. On receiving this charge, the
petitioner moved another petition in this Court for taking action
against Mr. Shrama and the· Government of Ra)asthan for contempt of this Court. At an earlier hearing, where we were considering the petition for transfer, the other petition was brought
to our notice and we were about to order issuance of notices to
the contemners but the 'Advocate General of the Government of
Rajasthan took notice of the petition and offered to take action in
respect the~eof. As a result the State of Rajasthan through the
Chief Secretary to the Government and Mr. Sharma separately
filed their replies to the second petition and attempted justification.
Mr. Sharma abjured knowledge of th~ contents of the petition for
transfer and denied any malice, ill-will or grudge, pleading good
faith.
The matter would have received serious attention from us
E
F
G
but for the fact that at t.he next hearing the plea for justification
H
was abandoned and an unconditional apology was entered on
behalf of the State Government as well as Mr. Sharma. The latter
was present in Court and expressed regret for what had happened.
•
.
'
•
,
G. D. CHADHA v. STATE (Hidayatullah, !.)
681
A
We accepted the apology and do not, therefore, feel called upon to
consider the plea of justification which, in any event, is not a plea
heard in bar when contempt is clear and manifest.
There could
be no question in the present case that by charging the petitioner
with proceedings of a different kind there was, if not direct, at least
indirect pressure brought upon him in the prosecution of his petiB
tion for transfer.
Of this we would have taken serious note because it was likely to have hampered the petitioner in prosecuting
his petition freely before this Court and would have resulted in
obstruction of administration of justice. If the petitioner was
guilty of any lapse under the Services (Conduct) Rules or even
guilty of an offence the action to which he would be otherwise
C
subject could wait till the present proceedings had terminated and ·
there was really no reason to hurry with a charge against the petitioner which charge would have put him under duress of some
kind.
Such a course of action is to be deprecated and we are
glad to note that the Government of Rajasthan and the Secre~ary
concerned have seen the matter in this light and have made amends
D by proper contrition. We do not feel called upon to say;,nlQrn
than this on. the petition for contempt which shall be filed .. ·re ·~.
We shall now take up the objection that this Court lacks jurisdiction to transfer the case pending before the special Judge,
Bharatpur. This objection goes to the root of the matter. QuesE
tions of inherent jurisdiction must always be decided before the
merits are considered because! to dismiss the petition after consideration of merits itself involves an assumption of jurisdiction.
W~ must accordingly consider the objection even though we are
satisfied tha~-the petition must fail on merits.
F
The power which the petitioner is invoking flows from s. 527
of the Code of Criminal Procedure. The first two sub-sections of
that section are material here and they read :
G
H
"527. Power of Supreme Conrt to transfer cases and
appeal~.-
·
(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
~1g~ _C?ur~ t? another Criminal Court of equal or supenor 1unsd1ct10n subordinate to another High Court.
(2) The Supreme Court may act under this section
only on the application of the Attorney-General of India
I
682
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
or of a party interested, and every such application shall
be made by motion which shall, except when the appli·
cant is the Attorney-General of India or the AdvocateGeneral, be supported by affidavit or affirmation.
"
It is conceded by the Advocate General that the power to
transfer criminal cases as laid down in the section is ordinarily
available but he contends that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a
special Judge cannot be transferred at all because under the terms
of that Act, which is a self-contained special Jaw, such a case must
be tried by the special Judge designate only.
The argument is
extremely plausible but does not bear close scrutiny. To understand the argument and how it is refuted certain provisions of the
Act may be seen. The first section of the Act gives the short title
A
B
c
of the Act. Sections 2 and 3 of the Act introduce changes in the
Indian Penal Code by increasing the punishment ins. 165 and by D
inserting s. l 65A which provides for punishment for abetment of
offences defined in ss. 161 and 165.
Sections 4 and 5 of the
Act make some amendments ins. 164 of the Indian Penal Code
and s. 337 of the Code of Criminal Procedure. These four sections have been repealed by the Repealing and Amending Act,
1957 as they were no longer necessary. The sections which we
&
have to consider are ss. 6, 7 and 8 of the Act. Section 6 confers
power on the State Government to appoint special Judges for the
trial of certain offences. The parts relevant to our purpose read :
"6. Power to appoint special judges.
(1) The State Government may, by notification in
F
the official Gazette, appoint as many special Judges ;is
may be necessary for such area, or areas as may be specified in the notification to try the following offences,
namely:-
(a) an offence punishable under section 161, section
162, section 163, section 164, section 165, or section
165-A of the Indian Penal Code (Act XLV of 1860),
br sub-section ( 2) of section 5 of the Prevention of
Corruption Act, 1947 (II of 1947);
(b) Any conspiracy to commit or any attemp~ to
commit or any abetment of any of the offences specified
in clause (a).
"
G
H
'
•
-
G. D. CHADHA v. STATE (Hidayatullah, J.)
683'
A
Section 7 next provides what cases shall be tried by special Judges.
•
The first two sub-sections read :
•
'
B
c
"7. Cases triable by special Judges.
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1898 (Act V of 1898)
or in any other law the offences specified in sub-section
(1) of section 6 shall be triable by special Judges only.
(2) Every offence specified in sub-section (1) of section 6 shall be tried by the special Judge for the area
within which it was committed, or where there are more
special Judges than one for such area, by such one of
them as may be specified in this behalf by the State
Government."
The procedure which the special Judge has to follow is laid down
ins. 8 (I) and by sub-section (2) of the same section certain powers
D are confered on the special Judge. Sub-section (3) then provides:
E
F
"8. Procedure and Powers of Special Judges.
(1)
(2)
(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall so far as they are not inconsistent with
this Act, apply to the proceedings before a special Judge;
and for the purposes of the said provisions, the Court of
the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of
assessors and the person conducting a prosecution befon:
a special Judge shall be deemed to be a public prosecutor.
"
G There is no need to refer to other provisions of the Act which d<>
not bear upon this matter.
The Advocate General, Rajasthan in opposing the petition relies.
principally on the provisions of s. 7(1) and (2) and contends that
the two sub-sections create two restrictions which must be read
together. The first is that offences specified in s. 6(1) can be tried
H
by special Judges only. The second is that every such offence shaff
be tried by the special Judge for the area within which it is committed and if there are more special Judges in that area, by the
r·
~-.
684
SUPREME. COURT
REPORTS
[1966[ 2 S.C.R.
special Judge chosen by Government. These two conditions, being
A
statutory, it is submitted no order can be made under s. 527 because on transfer, even if a special Judge is entrusted with the case,
the second condition is bound to be broken.
No doubt sub-section ( l ) of s. 7 lays down that the trial of an
offence specified in sub-section (l) of s. 6 must be by a special Judge
B
only but that condition can be fully met by transferring the case to
another special Judge. Indeed section 527 itself contemplates that
the transfer should be to a court of equal or superior jurisdiction
and we presume that there are special Judges in every State of India.
The selection of a special Judge causes no difficulty. It is the
second condition which is really pleaded in bar. The provision of C
sub-section (2) of s. 7 is that an offence shall be tried by the special
Judge for the area within which it is committed.
This condition, if literaly understood would lead to the conclusion that a case once made over to a special Judge in an area where
there is no other special Judge, canuot be transferred at all. This
could hardly have been intended. If this. were so, the power to
transfer a case intra-state under s. 526 o, ~he Code of Criminal
Procedure, on a parity of reasoning, must also be lacking. But this
Court in Ramchandra Prasad v. State of Bihar(') upheld the transD
fer of a case by the High Court which took it to a special Judge who
had no jurisdiction in the area where the offence was committed.
E
In holding that the transfer was valid this Court relied upon the
third sub-section of s. 8 of the Act. That sub-section preserves the
application of any provision of the Code of Criminal Procedure if
it is not inconsistent with the,Act, save as provided in the first two
sub-sections of that section. The question, therefore, resolves itself
to this : is there an inconsistency between s. 527 of the Code and
the second sub-section of s. 7 ? The answer is that there is none
Apparently this Court in the earlier case found no inconsistency
and the reasons appear to be these : The condition that an offence
specified in s. 6(2) shall be ttied by a special Judge for the area
within which it is committed merely specifies which of several special Judges appointed in the State by the State Government shall
F .
G
try it. The provision is analogous to others under which the jurisdiction of Magistrates and Sessions Judges is determined on a
territorial basis. Enactments in the Code of Criminal Procedure
intended to confer territorial jurisdiction upon courts and Presiding
-Officers have never been held to stand in the way of transfer of
H
criminal cases outside those areas of territorial jurisdiction. The
(I) [196?.j 2 S.C.R. 50.
•
-
•
' -
•
A
B
c
D
G.D. CHADHA v. STATE (Hidayatullah, !.)
685
order of transfer when it is made under the powers given by the
Code invests another officer with jurisdiction although ordinarily
he would lack territorial jurisdiction to try the case. The order of
this Court, therefore, which transfer a case from one special Judge
subordinate to one High Court to another special Judge subordinate
to another High Court creates jurisdiction in the latter in much the
same way as the transfer by the High Court from one Sessions Judge
in a Session Division to another Sessions Judge in another Session
Division.
There is no comparison between the first sub-section and the
second sub-section of s. 7. The condition in the second sub-section
of s. 7 is not of the same character as the condition in the first
sub-section. The first sub-section creates a condition which is a
sine qua non for the trial of certain offences.
That condition is
that the trial must be before a special Judge. The second sub-section distributes the work between special Judges and lays emphasis
on the fact that trial must be before a spedal Judge appointed for
the area in.which the offence is committea. This second condition
is on a par with the distribution of work territorially between different Sessions Judges and Magistrates. An order of transfer, by the
very nature of things must, some times, result in taking the case out
of the territory and the provisions of the Code which are preserved
by the third sub-section of s. 8 must supervene to enable this to
E
be done and the second sub-section of S· 7 must yield. We do not
consider that this creates any inconsistency because the territorial
jurisdiction created by the second sub-section of s. 7 operates in a
different sphere and under different circumstances. Inconsistency
can only be found if two provisions of law apply in identical circumstances and create contradictions. Such a situation does not arise
when either this Court or the High Court exercises its powers o[
transfer. We are accordingly of the opinion that the Supreme Court
in exercise of its jurisdiction and power under s. 527 of the Code
of Criminal Procedure can transfer a case from a special Judge subordinate to one High Court to another 3pecial Judge subordinate
to another High Court.
!H
This brings us to the question of the merits of the petition. The
petitioner is being proseC\ed for offences under s. 120B/161 of the
Indian Penal Code and s. 5(1)(a)(d) and 5(2) of the Prevention of
Corruption Act. His apprehension is that the case against him is
the result of the machination of two Police Officers and one
Mr. Mathura Dass Mathur who was the Home Minister in 1962.
He also alleges hostility on the part of the State Government. He
has given instances which in his opinion prove that the above two
686
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
officers, the Home Minister and the State Government are hostile to
A
him. In relation to the State Government he has alleged that when
he was appointed Commandant of the 8th Battallion of Rajasthan
Armed Constabulary the State Government down-graded his post,
otherwise he would have received a higher starting pay. He also
alleges that his suspension and prosecution were made to coincide
with his assumption of new duties so that he might not be able to
join his new post.
With regard to the Home Minister the petitioner has given five
instances in which he apparently crossed the minister's path and
gave him room for annoyance. In regard to the two Police Officers
B
he has averred that the Deputy Inspector General of Police, Ajmer
C
Range (Hanuman Prasad Sharma) and he had some differences on
three occasions.
He has also given similar instances of hostility
towards him entertained by Sultan Singh, Deputy Inspector General
of Police. On the basis of these he says that he entertains an apprehension that he will not receive justice in the State of Rajasthan.
The law with regard to transfer of cases is well-settled. A case is
D
transferred if there is a reasonable apprehension on the part of a
party to a case that justice will not be done. A petitioner is not
required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be
inferred that he entertains an apprehension and that it is reasonable
in the circumstances alleged. It is one of the principles of the adminiE
stration of justice that justice should not only be done but it should
be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice.
The Court has further to see whether the apprehension is reasonable
or not. To judge of the reasonableness of the apprehension the
State of the mind of the person who entertains the apprehension is
F
no doubt relevant but that is not all. The apprehension must not
only be entertained but must appear to the Court to be a reasonable
apprehension.
Applying these principles it may be said that there is a possibility that the petitioner entertains an apprehension that certain persons are hostile to him but his apprehension that he will not receive
justice in the State of Rajasthan is not in our opinion reasonable.
All the facts which he has narrated bear upon past events in his
official life. Nothing has been said which will show that there is in
any manner an interference direct or indirect with the investigation
of the offences alleged against him or the trial of the case before the
special Judge, Bharatpur. A general feeling that some persons are
hostile to the petitioner is not sufficient. There must be material
G
H
•
•
..
•
•
, -
.,
-.-!"
• ..
•
-
A
B
G.D. CHADHA v. STATE (Hidayatu/lah, J.)
68T
from which it can be inferred that the persons who are so hostile·
are interfering or are likely to interfere either directly or indirectly
with the course of justice. Of this there is no trace either in his petition or in the arguments which were advanced before us.
Nor
does the petitioner allege anything against the special Judge who is
trying the case. In this view of the matter we decline to order transfer of the case from the special Judge, Bharatpur. The petition
accordingly fails and will be dismissed.
Petition dismissed ..