VIKAS KUMAR ROORKEWAL versus STATE OF UTTARAKHAND AND ORS,

Citation: [2011] 1 S.C.R. 279 · Decided: 11-01-2011 · Supreme Court of India · Bench: J.M. PANCHAL · Disposal: Disposed off
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Judgment (excerpt)

[2011] 1 S.C.R. 279 
VIKAS KUMAR ROORKEWAL 
A 
• >-
v. 
STATE OF UTTARAKHAND AND ORS, 
(Transfer Petition (Crl.) No. 29 of 2008) 
JANUARY 11, 2011 
B 
(J.M. PANCHAL AND H.L. GOKHALE, JJ.] 
-i· 
Code of. Criminal Procedure, 1908: 
s. 406 - "f ransfer petition - Petitioner's father brutally c 
murdered in broad daylight - Accused belonging to powerful 
gang operating in the State -
Records showed threat 
administered to the petitioner and family by accomplices of 
the accused - No action taken by police or State Government 
to afford protection to petitioner/his family or to thwart threats 
D 
made by accused - Four accused already enlarged on bail 
but police or State Agency not taken steps for cancellation of 
their bai( order- Sincerity/effectiveness of prosecuting agency 
apparent from such conduct - The reluctance of the witnesses 
to go to the court at Haridwar in spite of receipt of repeated 
E 
summons bound to hamper the course of justice - Petitioner 
able to make out a case that thete would be failure of justice 
. ..,. 
and resuitant acquittal of the accused only on account of 
threats to the witnesses - On the facts and circumstances of 
the case and in the interest of justice, the transfer of the case 
F 
from Haridwar to Delhi ordered. 
s. 311 -
Power of court to summon and examine 
witnesses - Role of F';9siding Judge ..;.. Held: The Judge has 
to take participatory role in the trial - He is not to act like a 
)-. 
mere tape-recorder to record whatever is stated by the 
G 
witnesses- s.311 and s.165 of the Evidence Act confers vast 
and wide powers on court to elicit all necessary materials by 
playing an active role in the evidence collecting process -
Evidence Act - s. 165. 
279 
H 
280 
SUPREME COURT REPORTS 
[2011) 1 S.C.R. 
A 
The petitioner's case was that his father was the 
Superintending Engineer and in-charge of a project. 
involving huge amount. He was brutally murdered in 
broad day light by three persons at his residence at i 
Roorkee (Uttarakhand). He filed the instant transfer 
B petition seeking transfer of criminal case against the 
accused (involved in his father's murder) from court at 
Uttarakhand to Delhi. The transfer of case was sought on 
the ground of coercion and threat to the witnesses as well 
as doubtful sincerity of the investigating agency and 
c prosecuting agency. The petitioner stated in the petition 
that the driver of his father who was an eye witness had 
turned hostile and the other witnesses who were 
regularly receiving summons for appearing in Court to 
give testimony were unable to appear and depose due 
0 to regular threats administered to them. Further, it was 
also mentioned in the petition that the petitioner, his wife · 
and mother had already left Roorkee on account of fear 
and threats and have started staying in Delhi and were 
thus unable to depose before the court at Haridwar. 
E 
Disposing of the transfer petition, the Court 
HELD: 1.1. The record of the case showed that 
several letters were written and/or applications were made 
by the petitioner making grievances about the threats 
F administered to him and his family by the accomplices of 
the accused, however, no action was taken either by the 
SSP, Haridwar or by Government of Uttarakhand eitl;ler 
to afford protection to the petitioner and his family or to 
thwart such threats made by the accused and/or their 
G accomplices. It was not disputed that the driver of the 
~ 
deceased had turned hostile. The fact that in spite of 
rece.ipt of several summons neither the petitioner nor his 
wife nor his family members nor other witnesses have 
been able to go to Haridwar to depose before tile Court 
H 
was not denied by the State Government. There is no 
VIKAS KUMAR ROORKEWAL v. STATE OF 
281 
UTIARAKHAND AND ORS. 
manner of doubt that because of chasing of the petitioner A 
and his relatives by the accomplices of the accused, they 
have not been able to attend the Court and tender 
evidence. If this situation continues then the prosecution 
would not be able to lead any evidence in such a brutal 
murder case and the accused will have to be acquitted. 
B 
The record indicates that four accused have been already 
enlarged on bail but neither the police nor the State 
agency has taken any steps for the purpose of getting 
their bail order cancelled. [Para 13] [288-8-G] 
Himanshu Singh Sabharwa/ v. State of M.P. and others 
C 
(2008) 4 SCR 783 - relied on. 
Abdul Nazar Madani v. State of Tamil Nadu AIR
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