_________________________________________________________

IN THE HONOURABLE SUPREME COURT OF INDIA

__________________________________________________________

NAHAR SINGH YADAV

(APPELLANT)

v.
UNION OF INDIA
(RESPONDENT)

WRITTEN SUBMISSION FOR APPELLANT

COUNSEL ON BEHALF OF APPELLANT

ARSH KAUL
SEM III
SEC C
ROLL NO. 29
 NAHAR SINGH YADAV v. UOI

TABLE OF CONTENT
List of Abbreviations .................................................................................................... iii

Index of Authorities ....................................................................................................... iv

 Statutes .................................................................................................................... iv

 Case Laws ..................................................................................................................... iv

 Books And Websites Referred… ............................................................................. iv

Statement of Facts .............................................................................................. 1

Issues Raised… ................................................................................................................ 3

Summary of pleadings ......................................................................................................... 4

Pleadings ................................................................................................................................. 5

Prayer for Relief ............................................................................................................... 8

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 NAHAR SINGH YADAV v. UOI

LIST OF ABBREVIATIONS

§ Section

¶ Paragraph

AC Appeal Case

AIR All India Reporter

ed. Edition

p. Page no.

SC Supreme Court

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 NAHAR SINGH YADAV v. UOI

INDEX OF AUTHORITIES

STATUTES

 Section 406 in The Code Of Criminal Procedure, 1973

 the Delhi Special Police Establishment Act, 1946

 Section 406(2) in The Code Of Criminal Procedure, 1973

 Section 6 in the Delhi Special Police Establishment Act, 1946

 Article 21 in The Constitution Of India 1949

WEBLIOGRAPHY
 www.manupatra.com

 www.advocatekhoj.com

 www.legalservicesindia.com

 www.indianlawcases.com

JUDICIAL DECISIONS:
 A.R. Antulay v. R.S. Nayak and Anr

 Shyam Singh v. State of Rajasthan

 Captain Amarinder Singh v. Parkash Singh Badal and Ors

 State of U.P. v. Naresh and Ors

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 NAHAR SINGH YADAV v. UOI

STATEMENT OF JURISDICTION

The present Special Leave Petition has been filed under the
Article 136 of the Constitution of India which vests power in
the Hon’ble Supreme court to entertain such petitions.

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STATEMENT OF FACTS
1. Pursuant to and in furtherance of the findings of the Vigilance Department of the High Court
of Judicature at Allahabad and subsequent authorisation given by the High Court, Case
Crime No.152/2008 under Sections 409, 420, 467, 468, 471, 477-A, 120-B of the Indian
Penal Code, 1860 (for short "the IPC") and Sections 8, 9, 13(2) read with Sections 13(1)(d)
and 14 of the Prevention of Corruption Act, 1988 (for short "the Act") was registered at PS
Kavi Nagar, Ghaziabad on the written complaint of Smt. Rama Jain, Special Judge and
Vigilance Officer, District Court, Ghaziabad on 15th February 2008 against one late
Ashutosh Asthana, the then Central Nazir, District Court, Ghaziabad and 82 other accused
persons which included 13 Class-III employees, 30 Class-IV employees of District Court,
Ghaziabad and 39 outsiders. It was alleged that late Ashutosh Asthana in collusion with other
accused named in the FIR fraudulently withdrew huge sums of money in the name of GPF of
Class-IV employees of District Court, Ghaziabad.
Subsequently, the present special leave petition was filed with a request to transfer the
investigation of Case Crime No.152 of 2008, PS Kavi Nagar, Ghaziabad to the CBI. During
pendency of the proceedings, Government of Uttar Pradesh issued a Notification dated 10th
September 2008, under Section 6 of the Delhi Special Police Establishment Act, 1946 (for
short "the DSPE Act") for the transfer of above mentioned case to the CBI, which was also
placed before this Court for consideration. Vide order dated 23rd September 2008, this Court
transferred the investigation in the said case to CBI, inter alia, observing that "It is made
clear that though we have directed the matters to be listed after three months, the CBI, shall
be free to file the final report or charge sheet, as the case may be at an earlier point of time
and to proceed thereafter in accordance with law. The court before which the final report or
charge sheet is filed shall deal with the report or charge sheet, as the case may be, as required
in law." In view of the aforesaid order of this Court, the instant case was registered by the Anti-
Corruption Branch, CBI, Ghaziabad as Case RC- 1(A)/2008/CBI/ACB/Ghaziabad against late
Ashutosh Asthana and 82 other accused persons on 1st October 2008.

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The CBI filed periodical status reports in this Court with regard to the progress made in the
investigations from time to time. Ultimately, the final report was filed by the CBI on 30th
July 2010. According to the final report, the investigations had revealed that during the
period 2001-2008, late Ashutosh Asthana while working as Bill Clerk and Central Nazir,
District Court, Ghaziabad, by abusing his official position as public servant entered into a
criminal conspiracy with 6 District Judges/Incharge District Judge and 71 others with the
intent to cheat the District Courts, Ghaziabad/Government of U.P., fraudulently and
dishonestly withdrew over `6 Crores from the District Treasury as GPF withdrawals, creating
fake/forged documents for withdrawing money in the name of GPF of Class-IV employees
using them as genuine, thereby causing a loss of over `6 Crores to the Government
Exchequer and corresponding gains to themselves. According to the report, a charge sheet
under Section 120-B read with Sections 420, 467, 468 and 471 of the IPC and Section 13(2)
read with Section 13(1)(d) of the Act against accused persons, as named in the charge sheet,
has been filed in the Court of Special Judge, CBI, Ghaziabad on 3rd July 2010.

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ISSUES RAISED
1. Whether it would be desirable to transfer the trial from Ghaziabad?

2. Whether the CBI has the capacity to move an application for transfer of
the instant case?

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SUMMARY OF PLEADINGS

I. IT WOULD NOT BE DESIRABLE TO TRANSFER THE TRIAL FROM

GHAZIABAD.
The transfer of trial would cause immense hardship to the accused, who would not only
have to travel long distances but will also have to engage expensive lawyers in Delhi.
There must be a reasonable apprehension on the part of the party to a case that
justice will not be done, which is not there in the present petition.

II. THE CBI DOES NOT HAS THE CAPACITY TO MOVE AN

APPLICATION FOR TRANSFER OF THE INSTANT CASE.

The CBI which is the investigating agency cannot be said to be an interested party
within the meaning of the said provision and entitled to move such an application
for transfer of the trial.

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PLEADINGS
I. IT WOULD NOT BE DESIRABLE TO TRANSFER THE TRIAL FROM
GHAZIABAD.

The transfer of trial would cause immense hardship to the accused, who would not only
have to travel long distances but will also have to engage expensive lawyers in Delhi.
Learned Counsel also contended that the CBI has not produced any evidence, much less
credible material in support of its apprehension that there would be a miscarriage of
justice if the trial is held at Ghaziabad.

It is, however, the trite law that power under Section 406 of the Code of Criminal
Procedure has to be construed strictly and is to be exercised sparingly and with great
circumspection. It needs little emphasis that a prayer for transfer should be allowed only
when there is a well-substantiated apprehension that justice will not be dispensed
impartially, objectively and without any bias. In the absence of any material
demonstrating such apprehension, this Court will not entertain application for transfer of
a trial, as any transfer of trial from one State to another implicitly reflects upon the
credibility of not only the entire State judiciary but also the prosecuting agency, which
would include the public prosecutors as well.

For a transfer of a criminal case, there must be a reasonable apprehension on the part of
the party to a case that justice will not be done. It is one of the principles of
administration of justice that justice should not only be done but it should be seen to be
done. On the other hand, mere allegations that there is apprehension that justice will not
be done in a given case does not suffice. In other words, the court has further to see

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whether the apprehension alleged is reasonable or not. The apprehension must not only
be entertained but must appear to the court to be a reasonable apprehension.

The right to a fair trial is a fundamental safeguard to ensure that individuals are protected
from unlawful or arbitrary deprivation of their human rights and freedoms, most
importantly of the right to liberty and security of person.

In State of U.P. v. Naresh and Ors. the Supreme Court observed “every accused is
presumed to be innocent unless his guilt is proved. The presumption of innocence is a
human right subject to the statutory exceptions. The said principle forms the basis of
criminal jurisprudence in India.” Hence, if none of the accused are holding any judicial
office then it is a fair to assume that there can be no impartiality.

Further, In Shyam Singh v. State of Rajasthan, the court observed that the question is
not whether a bias has actually affected the judgement. The real test is whether there
exists a circumstance according to which a litigant could reasonably apprehend that a bias
attributable to a judicial officer must have operated against him in the final decision of
the case. There is nothing as such in the present matter that suggests a reasonable
apprehension to be made that there can be a influence on the case.

In Captain Amarinder Singh v. Parkash Singh Badal and Ors, P. Sathasivam, J.,
speaking for a three-judge Bench has observed, “for a transfer of a criminal case, there
must be a reasonable apprehension on the part of the party to a case that justice will not
be done. It is one of the principles of administration of justice that justice should not only
be done but it should be seen to be done. On the other hand, mere allegations that there is
apprehension that justice will not be done in a given case does not suffice. In other words,
the court has further to see whether the apprehension alleged is reasonable or not. The
apprehension must not only be entertained but must appear to the court to be a reasonable
apprehension.

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II. THE CBI DOES NOT HAS THE CAPACITY TO MOVE AN APPLICATION
FOR TRANSFER OF THE INSTANT CASE.

Section 406(2) of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.")
provides that an application for transfer can be moved only by an interested party, and
therefore, the CBI which is the investigating agency cannot be said to be an interested
party within the meaning of the said provision and entitled to move such an application
for transfer of the trial. Commending us to the decision of this Court in A.R. Antulay v.
R.S. Nayak and Anr.1, learned Counsel contended that the power to enlarge the
jurisdiction of a Special Judge under Section 4 of the Act is legislative in nature, and
therefore, an application under Section 406 of the Code of Criminal Procedure is
misconceived. It is next contended that none of the named accused are holding a judicial
office, and therefore, there is no reason to believe that they will influence the witnesses,
especially when 13 witnesses are themselves judicial officers. It was argued that if the
sole ground for transfer is the fact that the witnesses might be influenced because of the
past status of some of the accused, the location of the trial has no bearing in that regard. It
was stressed that transfer of trial would cause great hardship to the accused persons, as
they would have to re-locate themselves to Delhi, far away from Lucknow or Allahabad,
where they are residing after retirement and engage new counsel for their defence.

1
(1988) 2 SCC 602

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PRAYER FOR RELIEF

Wherefore, In the light of facts stated, arguments advanced, issues raised and authorities cited,

The Counsel on behalf of the respondent humbly prays before the Honorable Supreme Court of

India that:

1. To allow this special leave petition.

2. To allow the cost of litigation.

The Honorable Court may also be pleased to pass any other order which the Court may deem fit in

the spirit of Justice, Equity and Good Conscience.

DATE: 23th Oct 2018 COUNSEL ON BEHALF OF APPELLANT

NEW DELHI Arsh Kaul

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