# THE SUPREME COURT REPORTS HAZARA SINGH GILL v. IBE STATE OF PUNJAB

- **Citation:** [1964] 4 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1963-05-10
- **Case number:** criminal cases (Nos. 33/3 and 33/4 of 1963
- **Bench:** A. K. Sarkar, M. HmAYATULLAH, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-hazara-singh-gill-v-ibe-state-of-punjab-3035
- **Pages:** 5

## Headnote

Critl}inal
Trial-Transfer
petition-serious
allegations-No
affidavit in reply~Duty of the Court--Code of Criminal Procedu1·c,
1898 (Act 5 of 1898), s. 527.
\\There in a petition for transfer of criminal case, very serious
allegations are made by the petitioner on affidavit which are not
denied specifically by the other side this court must go by the affidavit filed by the petitioner. In proceedings of this kind, the court
does not examine witnesses in support of allegations of fact made
by either side. Ordinarily, the court acts upon the affidavit of one
side or other, but if one side omits to make an affidavit in
reply, the affidavit of the other side remains uncontroverte<l.
Held, that where the petitioner, as in the present case, has by
his affidavit made out a sufficient case from which it is possible
for the court to infer that he reasonably
entertains apprehension
that he \Yould not get justice in his case, the interests of justice
demand that the case should be transferred outside the State.
ORIGINAL JuRISDICTION : Transfer Petition No. 9 of 1%3.
Petition under s. 527 Criminal Procedure Code for
Transfer of cases Nos. 33/3 and 33/4 of 1%3, under s. 52
of the Prisons Act, pending in the Court of Magistrate 1st
Class, Amritsar, to a competent Court outside the State of
Punjab.
G. S. Vohra and Harbans Singh, for the petitioner.
L. D. Kaushal, Deputy Advocate-General for the State
of Punjab and P. D. Menon, for the resoondent.
May 10, 1963. The Judgment of the court was delivered by
1963
May, 10.
HmAYATULLAH J.-This is a petition by one Hazara
Hidayatullak /.
Singh Gill for the transfer of two criminal cases (Nos. 33/3
and 33/4 of 1963) under s. 52 of the Prisons Act, pending
for trial in the court of Mr. Sant Singh, Magistrate, First
Class, Amritsar. The petitioner requests that <nese cases
be transferred outside the State of Punjab for disposal. The
facts, in so far as they have been admitted by the State of
_.,
Punjab, are as follows:
The petitioner is a resident of village Rattoke in the
1963
Hazara Singh
Gill
v.
The State of
Punjab
H idayatul/ah f.
2
SUPREME COURT REPORTS
[1964]
Amritsar District.
He was elected as member of the
Punjab Vidhan Sabha in the last General Elections after
defeating S. Hardip Singh, the brother-in-law of the Chief
Minister of the State.
S. Surrinder Singh Kairon, son of
the Chief Minister, and S. Ranjit Singh Grewal, who was
posted as Senior Superintendent of Police at Amritsar,
have married sisters.
S. Mukund Singh, the father-in-law
of S. Surrinder Singh, owned vast lands. S. Mukund
Singh died without leaving any male issue and the estate
came under the Court of Wards, and the petitioner obtained some of the lands from the Court of Wards. In May,
1960, the agi,tation for what is described as the 'Punjabi
Suba' was started and the petitioner was arrested under
ss. 411/414, Indian Penal Code, and a report was sent
against him under s. 107 /151, Cr. P. C., and a warrant was
also issued.
The petitioner was held for interrogation
on a remand by the court. The petitioner was also arrested in a case under the Arms Act, and another, under the
Indian Opium Act.
His father and six others were arrested on 26-1-1%1 under s. 107 /151, Cr. P. C., but were discharged as a result of compromise in court.
The petitioner was convicted and sentenced to two years' rigorous
imprisonment in the case under the Arms Act and that
sentence has been upheld by the High Court.
He was
also convicted in a case under the Prisons Act and sentenced to six months' rigorous imprisonment, which sentence was also confirmed by the High Court. These sentences are to run consecutively. The two cases in which
the transfer is asked for are now pending and they have
been referred to the Magistrate by the Superintendent, Jail,
Amritsar.
The petitioner points out that another petition
of S. Mohan Singh Tur was transferred from the Punjab
to Saharanpur by this Court.
What is not admitted or evasively denied in the affidavit of the State

## Text

-
THE SUPREME COURT
REPORTS
HAZARA SINGH GILL
v.
IBE STATE OF PUNJAB
(A. K. SARKAR, M. HmAYATULLAH AND J. C. SHAH, JJ.)
Critl}inal
Trial-Transfer
petition-serious
allegations-No
affidavit in reply~Duty of the Court--Code of Criminal Procedu1·c,
1898 (Act 5 of 1898), s. 527.
\\There in a petition for transfer of criminal case, very serious
allegations are made by the petitioner on affidavit which are not
denied specifically by the other side this court must go by the affidavit filed by the petitioner. In proceedings of this kind, the court
does not examine witnesses in support of allegations of fact made
by either side. Ordinarily, the court acts upon the affidavit of one
side or other, but if one side omits to make an affidavit in
reply, the affidavit of the other side remains uncontroverte<l.
Held, that where the petitioner, as in the present case, has by
his affidavit made out a sufficient case from which it is possible
for the court to infer that he reasonably
entertains apprehension
that he \Yould not get justice in his case, the interests of justice
demand that the case should be transferred outside the State.
ORIGINAL JuRISDICTION : Transfer Petition No. 9 of 1%3.
Petition under s. 527 Criminal Procedure Code for
Transfer of cases Nos. 33/3 and 33/4 of 1%3, under s. 52
of the Prisons Act, pending in the Court of Magistrate 1st
Class, Amritsar, to a competent Court outside the State of
Punjab.
G. S. Vohra and Harbans Singh, for the petitioner.
L. D. Kaushal, Deputy Advocate-General for the State
of Punjab and P. D. Menon, for the resoondent.
May 10, 1963. The Judgment of the court was delivered by
1963
May, 10.
HmAYATULLAH J.-This is a petition by one Hazara
Hidayatullak /.
Singh Gill for the transfer of two criminal cases (Nos. 33/3
and 33/4 of 1963) under s. 52 of the Prisons Act, pending
for trial in the court of Mr. Sant Singh, Magistrate, First
Class, Amritsar. The petitioner requests that <nese cases
be transferred outside the State of Punjab for disposal. The
facts, in so far as they have been admitted by the State of
_.,
Punjab, are as follows:
The petitioner is a resident of village Rattoke in the
1963
Hazara Singh
Gill
v.
The State of
Punjab
H idayatul/ah f.
2
SUPREME COURT REPORTS
[1964]
Amritsar District.
He was elected as member of the
Punjab Vidhan Sabha in the last General Elections after
defeating S. Hardip Singh, the brother-in-law of the Chief
Minister of the State.
S. Surrinder Singh Kairon, son of
the Chief Minister, and S. Ranjit Singh Grewal, who was
posted as Senior Superintendent of Police at Amritsar,
have married sisters.
S. Mukund Singh, the father-in-law
of S. Surrinder Singh, owned vast lands. S. Mukund
Singh died without leaving any male issue and the estate
came under the Court of Wards, and the petitioner obtained some of the lands from the Court of Wards. In May,
1960, the agi,tation for what is described as the 'Punjabi
Suba' was started and the petitioner was arrested under
ss. 411/414, Indian Penal Code, and a report was sent
against him under s. 107 /151, Cr. P. C., and a warrant was
also issued.
The petitioner was held for interrogation
on a remand by the court. The petitioner was also arrested in a case under the Arms Act, and another, under the
Indian Opium Act.
His father and six others were arrested on 26-1-1%1 under s. 107 /151, Cr. P. C., but were discharged as a result of compromise in court.
The petitioner was convicted and sentenced to two years' rigorous
imprisonment in the case under the Arms Act and that
sentence has been upheld by the High Court.
He was
also convicted in a case under the Prisons Act and sentenced to six months' rigorous imprisonment, which sentence was also confirmed by the High Court. These sentences are to run consecutively. The two cases in which
the transfer is asked for are now pending and they have
been referred to the Magistrate by the Superintendent, Jail,
Amritsar.
The petitioner points out that another petition
of S. Mohan Singh Tur was transferred from the Punjab
to Saharanpur by this Court.
What is not admitted or evasively denied in the affidavit of the State Government are the following facts
stated by the petitioner on affidavit : After his election
to the Vidhan Sabha, he has not been able to attend any
meeting because he has been arrested and continuously
kept in jail, that the petitioner is a protagonist of the
Punjabi Suba, and supported the Akali. candidates as against
the Sadh Sangat Board which is supported by the Chief
Minister; and that in the criminal cases in which the peti-
,-
-
-
/
4 S.C.R.
SUPREME COURT REPORTS
3
tioner was arrested, a bail of rupees one lakh was demanded from him as also from his father and six others.
1963
Hazara Singk
Since such a heavy bail could not be furnished, his
Gill
father and the other persons languished in jail for
four months till they were discharged on compromise
in court, while he continued in jail.
Further, a suit has
been filed against the petitioner by the widow of S.
v.
The State af
Punjab·
Mukund Singh for Rs. 12,500 for arrears of rent and for
Hidayatullah f.
eviction, and in the written statement made by the petitioner in that suit, he has alleged that the Court of Wards
is being specially continued to save the application of the
ceilings on land to the property left by S. Mukund Singh.
The petitioner has also claimed in that suit that if the
arrears of rent have to be paid, they are payable only by
S. Surrinder Singh and S. Ranjit Singh Grewal.
This
has annoyed them.
Further, while he was in jail, S.
Surrinder Singh with police force took possession of the
lands in September, 1%0, and though a criminal complaint
was filed against S. Surrinder Singh for threatening the
petitioner's wife with a gun, the complaint was dismissed
by the court for default of appearance of the petitioner
as he was in jail and could not attend it.
He alleged that
the Superintendent, Jail, has purposely referred these cases
to the Magistrate instead of dealing with them himself, so
that a severe punishment might be imposed upon the petitioner, and the intention is to keep him in jail, so that
he may be kept away from his lands, his property and
his other amenities.
These further allegations, which have not been either
admitted or denied, are of a very serious character, and
one would have expected that an affidavit in reply would
have been filed at least in respect of some of them, as
for example, that the Magistrate had asked for excessive
bail, or that the criminal complaint stood dismissed because
the petitioner could not attend his case. These allegations could have been either admitted or stated to be
false after looking into the records of the case.
Fmther,
the personal aspersions against the Chief Minister and
the Senior . Superintendent of Police, Amritsar, who have
been charged with improper conduct by taking advantage
of their official position, should have been denied by them
on affidavit, if they were untrue.
1963
H azara Singh
Gill
v.
The State of
Punjab
Hidayatullah /.
•
4
SUPREME COURT REPORTS
[1964]
In the absence of any specific denial on the part of
the State, the Chief Minister and the Superintendent of
Police concerned, we must reluctantly go by the affidavit
filed by the petitioner.
In proceedings of this kind, it
should be known that the Court does not examine witnesses in support of allegations of fact made by either
side.
Ordinarily, the Court acts upon the affidavit of one
side or that of the other.
But if one side omits to make
an affidavit in reply the affidavit of the other side remains
uncontroverted.
In the present case, the petitioner has asked for the
transfer of the cases from the State of Punjab, and his
allegation is that as there is no separation of the Judiciary
from the Executive, the magistracy is under the control
of the Executive and he would not get justice at the hands
of any magistrate in the State.
No doubt, an allegation
of this type cannot be accepted, because it is impossible
to think that there is no magistrate in the whole State
who can rise above pressure, if any, brought by the Executive.
However, the question is not one of finding such a
magistrate and entrusting the cases to him.
The ques.-
tion really is whether the petitioner can be said to entertain reasonably an apprehension that he would not get
justice.
One of the highest principles in the administration of law is that justice shonld not only be done but
should be seen to be done.
In the present case, there is
enough allegation to show that certain strong parties are
opposed to the petitioner in various ways.
Whether they
· would exercise any influence upon the magistracy and
whether magistracy would be able to withstand such a
pressure, if made, is not germane to the present petition.
Vv e are of opinion that the petitioner has, by his affidavit,
made out sufficient circumstances from which it can be
inferred that he does entertain, and entertain reasonably,
an apprehension that he would not get justice in these
<:ases.
In similar circumstances, this Court has not hesitated on an earlier occasion to transfer certain cases outside the State of Punjab.
In our opinion, the present
<:ase is also one in which the interests of justice demand
that the cases should be transferred outside the State of
Punjab.
We direct that the two cases shall be transferred
to Sharanpur District and shall be tried there by a Magisr
-
v
'
4 S.C.R ..
SUPREME COURT REPORTS
5
trate who shall be chosen by tbe District Magistrate of
Saharanpur for their disposal according to law.
Petition allowed.
NIHAL SINGH AND ORS.
fl.
STATE OF PUNJAB
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MuoHOLKAR,
JJ.)
Criminal Trial-Acquittal order set aside by High CourtAppeal preferred to this Court-Procedure to be followed by this
Court in hearing the appeal-Constitution of India, Art. 136.
The appellants formed themselves into an unlawful assembly
and in pursuance of their common object caused the death of two
persons.
They were tried under ss. 148 and 302/149 of Indian
Penal Code.
The trial Court acquitted them of all the charges.
On appeal, the High Court, on a review of the entire evidence, set
aside the order of acquittal and sentenced each of them to undergo
rigorous imprisonment for life and one year respectively under the
aforesaid charges.
Hence this appeal.
Held, (per Subba Rao and Mudholkar JJ.) This Court has
full discretion to hear an appeal under Art. 136 of the Constitution on facts and law.
But this wide jurisdiction has to be regu~
lated by the practice of this Court. There are two ways of approach to the hearing of such an appeal by this Court : one is
to go through the entire evidence and then come to a conclusion
whether the High Court has infringed the principles laid down in
Sanwat Singh's case or whether the appeal is an exceptional one
which calls for the interference of this Court in the interest of jus·
tice. The other and more convenient method is to allow the counsel
to state the case broadly and, after going through the judgments
of the lower courts, to come to a conclusion whether the appeal
falls under one or other of the two categories mentioned above
and then, if the court is satisfied that it is a fit case to review the.
entire evidence, to do so.
The second method is a more convenient one as it also prevents the unnecessary waste of time involved in adopting the alternative procedure of treating practically such an appeal as a regular
appeal.
Obviously this Court cannot lay down an inflexible rule
of practice in this regard and it must be left to the division benches
to follow the procedure that appears suitable to them.
1963
Hazara Singh
Gill
v.
The State
of Punjab
Hidayatullah f.
1963
May, JO