LexMANEKA SANJAY GANDHI AND ANR. versus RANI JETHMALANI
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A B c D E F G B 378 MANEKA SANJA Y GANDHI AND ANR. v. RANI JETHMALANI November 23, 1978 [V. R. KRISHNA IYER, P. S. KAILASAM AND A. D. KOSHAL, JJ.] Petition for transfer of Crirninal Proceedings under Order XXXVI of Suprenie Court Rules 1966 read with section 406 Crin1inal Procedure Code 1973-Cen- tral criterion and guidelines to be followed by Courts, when a motion for tran.~fer is mnde. HELD : 1. Assurance of a. fair trial is the first imperative of the dis- pensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or rela-tive con- venience of a party or easy availability of legal services or the like m1n1- grievances. Somelhing more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment is necessitous, if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. c·ourts must test the petitioner's grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the Court may weigh the circumstances. [380F-I-I] 2., The meat of the matter, in a case of defamation is something different than the common ground usually urged like the avoidance of substantial pre- judice to a party or witnesses on account of logistics or like factors. especially when an .altemat.ive venue will not seriously handicap the complainant and °"·ill mitigate the serious difficulties of the accused. The main witnesses are those who speak to having read the offending, matter and other relevant cir- cumstances flowing therefrom. [381A-B] In this case, the v.·itnesses belong to Bombay and the suggestion that Delhi readers may be substitute witnesses and the complainant may consent herself with examining such persons is too presumptuous for serious considera- tion. [381C] 3. The sophisticated processes of a criminal trial certainly require compe· ten~ legal service to present a party's case. If an· accused person, for any particular reason, is virtually deprived of this facility, an essential aid to fair trial fails. If in a certain Court the whole Bar, for reasons of hostility or otherwise refuses to defend an accused person-an extraordinary situation difficult to imagine, having rega.rd to the ethics of the profession-it may \\''ell be put forward as a ground which merits the attention of the Supreme Court. Glib allegation like the services of an efficient advocate may not be easy to procure involves a reflection on the members of the Bar in Bombay and, therefore, it cannot be ea'iily accepted without incontestible testimony in that beh<11f, \Vhich is absent in this case. apart from the ipse dixit of the party; Popular frenzy or official wrath shall not deter a member of the Bar from ~ I --' ' > ~ I ~IANEKA GANDHI v. RANI JETHMALANI (Krishna Iyer, J.) 3 79 ()ffering his services to those who wear unpopular names or unpalatable causes and the Indian advocate may not fail this standard. [381C-E] 4. lt is true that a detached atmosphere of a fair and impartial judicial trial is a must. The tendency of toughs and street roughs to violate the ~erenity of Court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the Person of an accused or con1plainan!. is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions pre- valent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear present one's caise, bring one's witnesses or adduce evidence. Indeed, it is the duty of the Court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the ·Court hall ·may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likev,rise, if there is general constern
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