Free And Fair Trial Sine Qua Non Of Article 21 | P&H HC Transfers Cheating Case Against District Court Lawyer | Advocates’ Reluctance To Take Brief Undermines Justice
Isabella Mariam
The High Court of Punjab and Haryana Single Bench of Justice Harpreet Singh Brar held that a litigant's inability to secure effective legal representation due to a hostile local environment, particularly where the accused are practicing advocates in the same district, constitutes a valid ground for transfer of trial. In view of this, the Court allowed transfer of proceedings in a criminal matter from Amritsar to Hoshiarpur. It directed that all records pertaining to the concerned FIR and pending bail application be transmitted to the jurisdictional Sessions Judge, Hoshiarpur, in the interest of justice. The trial court in Hoshiarpur was also instructed to adjudicate the matter without being influenced by any prior observations.
The matter pertained to two connected petitions seeking transfer of criminal proceedings arising out of FIR No. 89 dated 04.09.2018 registered under Sections 420, 467, 471, 468, and 120-B of the Indian Penal Code at Police Station Khilchiyan, District Amritsar. The petitions were filed under Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), formerly Section 407 of the Code of Criminal Procedure. The FIR was registered at the instance of the petitioner against certain private respondents who were accused of preparing a forged will in the name of the petitioner’s deceased uncle, Manjit Singh, allegedly to usurp his property.
The petitioner submitted that the private respondents Nos. 2 to 4 were practicing advocates in District Amritsar, where the trial was currently pending. Due to their standing and presence in the local legal community, the petitioner claimed he was unable to secure any advocate from the Ajnala Bar Association or the surrounding region to represent him. He contended that this created a serious impediment to securing legal representation, violating his right to a fair trial.
Advocate Mr. Pratap Singh Gill appeared on behalf of the petitioner. The prayer in both petitions was that the trial and the pending bail application be transferred to any court outside District Amritsar to ensure an impartial and fair adjudication.
Counsel appearing on behalf of the private respondents, Mr. Lokesh Garg, Advocate for Mr. Kushagra Mahajan, opposed the plea, asserting that attending proceedings in a distant district would cause hardship and inconvenience to the private respondents. It was submitted that the petitions did not justify a departure from the settled rule that a complainant cannot dictate the place of trial.
The State was represented by Mr. Nitesh Sharma, Deputy Advocate General, Punjab. The State submitted that Assistant Sub-Inspector Rajwinder Singh had conducted an inquiry into the petitioner’s claim that no lawyer in Ajnala was willing to represent him. The report substantiated the petitioner’s claim. However, it was also brought to the notice of the Court that the advocates of Ajnala Bar Association had declined to formally record statements affirming the same.
The petitioner's grievance centered on being effectively denied access to legal counsel due to the accused being practicing advocates in the same court where the trial was scheduled. He submitted that the reluctance of local lawyers to act against fellow Bar members had caused grave prejudice.
Justice Harpreet Singh Brar observed, "It has been brought to the notice of this Court that the petitioner is facing genuine difficulty in securing legal representation in district Amritsar, owing to the fact that respondents No.2 to 4-accused are Advocates in the same district where the trial is currently pending." The Court noted that this resulted in "local lawyers [being] either reluctant or unwilling to accept a brief against fellow members of the Bar." It recorded that the circumstances had "seriously impeded the petitioner’s right to a fair trial and his effective participation in the proceedings, creating a reasonable apprehension of denial of effective access to justice."
Quoting the decision in Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158, the Court stated, "The inability of a litigant to secure effective legal assistance due to reluctance caused by undue influence or creation of a hostile environment by the opposite party, especially where the accused is an Advocate practicing in the same Court, compromises the foundational principles of fair trial."
The Court further referred to the Supreme Court's observations that "a trial which is primarily aimed at ascertaining truth has to be fair to all concerned" and that "denial of a fair trial is as much injustice to the accused as is to the victim and the society." The judgment quoted the Supreme Court’s observation that "Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm."
It also drew upon the precedent laid down in Maneka Sanjay Gandhi and another v. Rani Jethmalani (1979) 4 SCC 167, where Justice V.R. Krishna Iyer stated, "Assurance of a fair trial is the first imperative of the dispensation of justice... Something 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."
Justice Brar further relied on K. Anbazhagan v. Superintendent of Police and Others (2004) 3 SCC 767 to state that "justice should not only be done but it should be seen to have been done." The Court acknowledged that while the private respondents had a right to convenience, the overriding concern was whether a "reasonable apprehension in the mind of the petitioner" regarding access to justice existed.
In view of the findings, the Court allowed both petitions. It directed that "the trial in FIR bearing No.89 dated 04.09.2018 registered under Sections 420, 467, 471, 468 and 120-B of IPC at Police Station Khilchiyan, District Amritsar (Annexure P-4) pending before learned Sub-Divisional Judicial Magistrate, Ajnala as well as the application bearing No.CRM-81-2024 for cancellation of bail pending before learned Additional Sessions Judge, Amritsar are ordered to be transferred to the jurisdiction of Sessions Judge, Hoshiarpur."
The Court instructed that "the learned Sessions Judge, Amritsar is directed to transfer the record pertaining to the aforesaid case to learned Sessions Judge, Hoshiarpur, who will assign the same to the Court of competent jurisdiction at Hoshiarpur." It further directed that "the parties are directed to appear before the learned trial Court at Hoshiarpur within a period of 04 weeks from today."
The Court clarified that "nothing observed hereinabove shall be construed as expression of this Court on the merits of the case. The learned trial Court is directed to adjudicate upon the present case, strictly in accordance with law, without being prejudiced by any observations made by this Court."
Advocates Representing the Parties:
For the Petitioners: Mr. Pratap Singh Gill, Advocate
For the Respondents: Mr. Lokesh Garg, Advocate for Mr. Kushagra Mahajan, Advocate; Mr. Nitesh Sharma, Deputy Advocate General, Punjab
Case Title: Daljit Singh v. State of Punjab and Others
Neutral Citation: 2025: PHHC:078002
Case Number: CRM-M-45786-2024 & CRM-M-45787-2024
Bench: Justice Harpreet Singh Brar
