Hazara Singh Gill vs The State Of Punjab

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

Court: Supreme Court of India

Case Number: Transfer Petition No. 9 of 1963

Decision Date: 10 May 1963

Coram: M. Hidayatullah, A.K. Sarkar, J.C. Shah

In this case, the Supreme Court of India recorded that Hazara Singh Gill filed a petition against the State of Punjab on 10 May 1963, and that the judgment was authored by Justice M. Hidayatullah, who sat with Justices A. K. Sarkar and J. C. Shah. The petitioner was identified as Hazara Singh Gill and the respondent as the State of Punjab; the date of the judgment was 10 May 1963 and the bench was listed under the names Hidayatullah, M., Sarkar, A. K., and Shah, J. C. The official citation of the decision was reported as 1965 AIR 720 and 1964 SCR (4) 1, with citator information noting F 1986 SC1896 (6). The case concerned a criminal trial‑transfer petition that raised very serious allegations, was filed without a reply affidavit, and invoked the duty of the court under the Code of Criminal Procedure, 1898 (Act 5 of 1898), section 527.

The headnote of the decision explained that when a petitioner makes very serious allegations on affidavit in a transfer petition and the opposite side does not specifically deny those allegations, the court must rely on the petitioner’s affidavit. It further stated that in such proceedings the court does not examine witnesses to support factual allegations made by either side, and that ordinarily the court acts upon the affidavit of one side or the other; however, if one side fails to file a reply affidavit, the other side’s affidavit remains uncontested. The court held that where the petitioner, as in the present matter, has by his affidavit established a sufficient case from which the court could infer that the petitioner reasonably fears he would not obtain justice, the interests of justice require that the case be transferred outside the state.

The judgment clarified the original jurisdiction as Transfer Petition No. 9 of 1963, filed under section 527 of the Criminal Procedure Code seeking transfer of cases numbered 33/3 and 33/4 of 1963, which were filed under section 52 of the Prisons Act and were pending before the Court of the Magistrate First Class, Amritsar, presided over by Mr. Sant Singh. The petitioners were represented by counsel G. S. Vohra and Harbans Singh, while the State of Punjab was represented by the Deputy Advocate‑General L. D. Kaushal and counsel P. D. Menon for the respondent. The petition requested that the two criminal cases be transferred to a competent court outside the State of Punjab for disposal.

The facts admitted by the State of Punjab, as set out in the judgment, indicated that the petitioner was a resident of the village of Rattoke in the Amritsar District and had been elected as a member of the Punjab Vidhan Sabha in the most recent general elections, defeating S. Hardip Singh, who was the brother‑in‑law of the Chief Minister of the State. The judgment also noted that S. Surrinder Singh Kairon, the son of the Chief Minister, and S. Ranjit Singh Grewal, who held the position of Senior Superintendent of Police at Amritsar, were married to sisters. Moreover, the father‑in‑law of S. Surrinder Singh, namely S. Mukund Singh, owned extensive lands. The record concluded the paragraph with the name S. Mukund without further continuation.

Singh died without leaving any male heirs, and consequently his estate was placed under the jurisdiction of the Court of Wards, from which the petitioner subsequently obtained certain portions of the land. In May 1960, an agitation demanding the creation of a Punjabi Suba was launched, and during that period the petitioner was arrested under sections 411 and 414 of the Indian Penal Code; a police report was also filed against him under sections 107 and 151 of the Criminal Procedure Code, and a warrant for his arrest was issued. After his arrest, the petitioner was kept in custody for interrogation on a remand ordered by the court. In addition to the above, the petitioner faced separate arrests in connection with a case under the Arms Act and another case under the Indian Opium Act. On 26 January 1961, his father and six other individuals were arrested under sections 107 and 151 of the Criminal Procedure Code, but they were later discharged after a compromise was reached in the court.

The petitioner was convicted in the Arms Act case and sentenced to two years of rigorous imprisonment; this conviction and sentence were subsequently upheld by the High Court. He was also convicted under the Prisons Act and sentenced to six months of rigorous imprisonment, a judgment that likewise received confirmation from the High Court. Both sentences were ordered to be served consecutively. The two criminal matters for which the petitioner now seeks transfer have been referred to the Magistrate by the Superintendent of the Jail at Amritsar. In support of his request, the petitioner referenced a prior petition by S. Mohan Singh Tur that this Court had transferred from Punjab to Saharanpur.

The affidavit filed by the State Government neither admits nor expressly denies several factual assertions made by the petitioner. According to the petitioner’s affidavit, after being elected to the Vidhan Sabha he was unable to attend any legislative meetings because he had been arrested and continuously detained in jail. He further claimed that he was a leading advocate of the Punjabi Suba movement and that he supported Akali candidates in opposition to the Sadh Sangat Board, which was backed by the Chief Minister. The petitioner alleged that in the criminal matters leading to his arrest, the authorities demanded a bail amount of one lakh rupees from him, his father and the six other arrested persons. Because such a large bail could not be furnished, his father and the six others remained incarcerated for four months until they were released following a compromise, while the petitioner himself continued to be held.

In a separate civil suit filed by the widow of S. Mukund Singh, a claim of Rs 12,500 was made for arrears of rent and for eviction of the petitioner’s possession. In the written statement filed in that suit, the petitioner contended that the Court of Wards had been specially continued in order to circumvent the application of land ceiling provisions to the property left by S. Mukund Singh. He further asserted that any liability for the alleged rent arrears should rest solely with S. Surrinder Singh and S. Ranjit Singh Grewal, a claim that reportedly caused them annoyance. Moreover, while the petitioner was incarcerated, S. Surrinder Singh, together with police personnel, took possession of the lands in September 1960; although a criminal complaint was lodged against S. Surrinder Singh for allegedly threatening the petitioner’s wife with a firearm, that complaint was dismissed by the court on the ground that the petitioner, being in jail, could not appear to prosecute the case.

In September 1960 the force took possession of the lands, and although a criminal complaint had been lodged against S. Surrinder Singh for allegedly threatening the petitioner’s wife with a gun, the court dismissed that complaint because the petitioner, who was then incarcerated, failed to appear. The petitioner contended that the jail superintendent deliberately referred these matters to the magistrate rather than dealing with them directly, with a view to securing a harsh sentence, keeping the petitioner imprisoned and thereby depriving him of access to his lands, property and other amenities. These further allegations have neither been admitted nor denied and are of a very serious nature; it would have been reasonable for an opposing affidavit to have been filed addressing at least some of them, such as the claim that the magistrate demanded excessive bail or that the criminal complaint was dismissed solely because the petitioner could not attend. The records could have been inspected to either confirm or refute those statements. Moreover, personal attacks were made against the Chief Minister and the Senior Superintendent of Police, Amritsar, alleging that they abused their official positions; if those allegations were untrue, those officials could have responded by filing affidavits denying them. Because no specific denial has been offered by the State, the Chief Minister or the superintendent, the court is obliged, albeit reluctantly, to accept the petitioner’s affidavit as unchallenged. In matters of this kind the court ordinarily does not call witnesses to prove factual assertions made by either party; it relies on the affidavits submitted. When one side fails to file a reply affidavit, the affidavit of the other side remains uncontested. The petitioner now seeks transfer of the two criminal matters out of Punjab, asserting that the lack of separation between the judiciary and the executive places the magistracy under executive control, and that consequently he would not receive justice from any magistrate in the State. While it is not tenable to concede that no magistrate anywhere in the State could act independently of executive pressure, the real issue is whether the petitioner can be said to have a reasonable apprehension of denial of justice. A fundamental principle of law demands not only that justice be done but that it be seen to be done, and in the present circumstances the petitioner has set forth sufficient allegations to suggest the involvement of powerful interests opposed to him.

In this matter, the Court observed that the parties opposing the petitioner employed various methods of opposition. The Court held that it was not necessary to determine whether those opposing parties might attempt to influence the magistracy or whether the magistracy could resist such pressure, because that question was not relevant to the petition before the Court. The Court further expressed the view that, based on the affidavit filed by the petitioner, there existed sufficient factual circumstances from which a reasonable inference could be drawn that the petitioner genuinely feared, and reasonably so, that he would not receive justice in the pending proceedings. The Court referred to prior decisions in which, under comparable circumstances, it had not hesitated to order the transfer of cases outside the State of Punjab. Applying the same principle, the Court concluded that the interests of justice required that the two pending cases be removed from the jurisdiction of Punjab. Consequently, the Court directed that the two cases be transferred to Sharanpur District and that they be tried there by a magistrate who would be chosen by the District Magistrate of Saharanpur, in accordance with law. The petition was allowed.