G.X. Francis And Ors. vs Banke Bihari Singh And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 4 December, 1957

Coram: Vivian Bose

In this proceeding, an application was filed under Section 527 of the Criminal Procedure Code seeking to have a criminal case that originated in Jashpurnagar, a town in the State of Madhya Pradesh, transferred to another State. The applicant preferred that the case be transferred either to the Union Territory of New Delhi or to the State of Orissa, and also requested that the matter be tried before a higher authority, specifically a “Superior Court” such as a District Magistrate or a Sessions Judge. The substance of the criminal proceeding is a prosecution for defamation, pursued under Sections 501 and 502 of the Indian Penal Code together with Section 34, which deals with common intention.

The complainant in the defamation suit is identified as a member of the royal family of Jashpur and maintains his residence at Jashpurnagar. At present, there are seven accused persons who have been joined as respondents to the criminal case. All of the accused are adherents of the Catholic faith, except for one individual who belongs to the Jacobite Christian tradition. The original list of accused contained nine names; however, one of those individuals died, and another did not become a party to the present application, leaving the remaining seven as the respondents. These seven accused are geographically dispersed across the country. Their places of residence include Nagpur in the former Bombay State, Patna in the State of Bihar, Allahabad in Uttar Pradesh, and Raigarh, which lies within Madhya Pradesh. Among the accused, two are ordained priests and one holds the office of bishop; the remaining four are laypersons.

The complainant alleges that the accused participated, in various ways, in the preparation and dissemination of several publications that attacked a document known as the Niyogi Report and sought to question the accuracy of the statements contained in that report. According to the complaint, the accused’s actions in publishing these materials constitute defamation of the complainant. In support of this allegation, the complainant has identified specific passages from the publications that he claims are defamatory. Moreover, the complainant has not limited his grievance to those passages that directly impugn his personal reputation. He further asserts that similar defamatory remarks have been directed elsewhere at both senior and junior officers of the Government administration. The complainant contends that these additional aspersions demonstrate an intention on the part of the accused to persuade the public to doubt the correctness of judgments that have been rendered in the complainant’s favour, thereby creating a false perception of moral culpability against the complainant despite his legal exoneration. While the Court does not need to adjudicate the truth or falsehood of these additional allegations, the statements form material that may lead the accused to believe that the complainant is attempting to influence the magistracy and other officials, both “high and low,” against them.

Among the reasons cited for seeking transfer of the case are certain allegations made against the magistrate who is presently trying the matter. It is alleged that, early in 1955, a complaint was lodged by a group of Christians in Jashpurnagar against the complainant, accusing him of desecrating a Christian church. That complaint gave rise to Criminal Case No. 5 of 1955, in which the first court convicted the complainant but subsequently released him under the provisions of Section 562 of the Criminal Procedure Code. The complainant appealed that conviction, and the appeal was heard by the magistrate now presiding over the present defamation proceeding, identified as Shri K. T. Damle. These allegations against the magistrate form part of the basis for the applicant’s request that the case be transferred to another jurisdiction.

In this matter, the Court observed that the learned Magistrate had dismissed the prosecution’s evidence and, relying upon the defence evidence, had acquitted the complainant on 6 November 1956 in Criminal Appeal No. 1 of 1956. The accused alleged that such a decision indicated bias or at least created a reasonable apprehension of bias in their minds. The Court found no basis for drawing such an inference and held that an apprehension of bias on that ground was not reasonable. The Court therefore discouraged the making of such accusations and stated that it would be extremely reluctant to order a transfer on that basis. Consequently, the Court saw no necessity to summon the learned Magistrate for an explanation, as it rejected the ground outright.

The Court also rejected outright the claim that the accused could not receive a fair trial anywhere in Madhya Pradesh. It described that claim as overly broad and sweeping, noting that the record contained no material to justify such an apprehension. The Court pointed out that large portions of the newly formed State of Madhya Pradesh had no connection with the former State and that there was no evidence to support a fear that courts in places such as Bhopal, Gwalior, Indore, or other distant locales of the old Madhya Pradesh would be influenced by events that occurred in Jashpur and its neighbouring areas. However, the Court acknowledged that there were sufficient grounds to order a transfer from Jashpurnagar because of the bitterness of local communal feeling and the tense atmosphere prevailing there. It explained that public confidence in the fairness of a trial conducted under such conditions would be seriously undermined, particularly among reasonable Christians throughout India, not because the judge was unfair or biased, but because the justice system is not equipped to function effectively in an environment of heightened communal tension. Even if justice were done, it would not be seen to be done.

The Court noted that it had ordered transfers in earlier cases where similar conditions existed, for example in parts of South India where emotions ran high over the merger and re‑organisation of certain states, and in cases involving Communist defendants where local hostility was strong. The Court found the situation in Jashpurnagar comparable. In support of its conclusion, the Court referred to the complainant’s affidavit dated 26 October 1957, in which the complainant claimed that around 1922 a rebellion in Jashpur State had been secretly aimed at installing a Christian convert on the throne, an effort attributed to the Jashpur missionaries. The complainant alleged that since that time, Catholic missionaries harboured deep‑rooted ill‑will, enmity and hatred towards him. While the Court did not accept the veracity of this claim, it considered the statement material for indicating the beliefs and feelings of a section of the local community toward the Christians residing there.

In this case, the Court observed that if hostility rested solely on one side, it would probably not have permitted the accused, who were Christians, to exploit a circumstance that they themselves, or rather the community to which they belonged, were alleged to have created. The Court clarified that it did not accept the complainant’s statement as true; in fact, it had no material on which to base such a conclusion, and the mere assertion of those facts by the complainant did not constitute proof of their accuracy. Nevertheless, the Court considered the complainant’s allegation to be useful evidence for understanding the beliefs and feelings of a segment of the local community toward the Christians living there. The Court then noted that the complainant had been convicted in Sessions Case No. 4 of 1929 for attempting to murder two Catholic priests. The complainant acknowledged this conviction and linked it to his earlier claim of ongoing hostility from the Catholic missionaries dating back to 1922. Whether or not the Christians and missionaries were truly hostile toward him, the Court found it evident that any hostility could not have been one‑sided. If the complainant’s version were believed, there existed intense bitterness on the part of the Christians in the area against the local non‑Christians, and equally strong communal resentment by the other community toward the Christians. The Court further examined an affidavit filed by the accused, which stated that local Christians had reported a desecration of a church in a particularly offensive manner, but that no action was taken because of the complainant’s influence. The complainant replied that he knew nothing of such a report, a response that the Court said would not carry much weight on its own. However, the affidavit also claimed that the report had been mentioned in certain starred interpellations in the Madhya Pradesh Assembly and that the Government had not responded. The Court held that, together with the other matters previously outlined, this information was sufficient to create an uneasy feeling among reasonable persons that the State Government regarded the allegation as having some basis. The Court observed a distinctly communal dimension in the complaint, which asserted that all the accused had shown themselves to be adversaries of the Hindu religion to which the complainant belonged, and that their alleged policy was to diminish the prestige of prominent Hindu citizens in order to make the community more receptive to their activities. Two of the accused expressed fear of personal violence if the trial were conducted in any subordinate court in Madhya Praadesh, and the complainant shared a similar apprehension. He alleged that the accused had misused their high positions and that their united criminal conduct indicated a clear tendency to disturb the peace among peaceful citizens, thereby endangering his life. In view of these circumstances, the Court concluded that the local atmosphere was not conducive to a fair and impartial trial.

The Court observed that testimony from both parties uniformly confirmed the existence of heightened tension in the locality, and consequently concluded that the prevailing atmosphere was unsuitable for conducting a fair and impartial trial. In line with its prior decisions, the Court expressed the view that a transfer of proceedings was necessary. Ordinarily, the Court would have referred the matter to the High Court of Madhya Pradesh, reiterating that it does not accept the sweeping claim that every court in that state lacks impartiality. However, the Court found that the area surrounding Jashpurnagar was deeply unsettled by recent events, rendering it inappropriate to hold the trial within that region. Considering the geography of the newly formed state and the condition of its transport links, the Court determined that conducting the trial in the neighboring State of Orissa would be more convenient and accessible than locating it in Bhopal, Gwalior, Indore, or even Jabalpur, Saugor, or Hoshangabad. Accordingly, the Court ordered that the case be transferred to a magistrate in Sambalpur, Orissa, who is competent to try the matter as directed by the District Magistrate of that area. The Court declined the request that the case be heard by a “superior Court”. Further, the Court emphasized that the step of transferring the case was taken because what might otherwise have been a modest defamation proceeding had been amplified by the complainant and by local passions into a communal dispute, with large segments of the local population aligning themselves on opposing sides and exchanging verbal attacks that targeted entire communities rather than the individuals involved. In passing, the Court noted that the State of Madhya Pradesh had not objected to the application, despite having been served with notice.