P. Sathasivam, J. - (1.) These two transfer petitions have been preferred under Section 406 of the Code of Criminal Procedure, 1973 seeking transfer of the case titled as "State of Punjab vs. Prakash Singh Badal and Ors.."relating to FIR No. 15 dated 24.06.2003 filed under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 read with Sections 7, 8, 9, 10, 13(1) and (2) of the Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Ropar to any other suitable Court of competent jurisdiction in New Delhi.
(2.) Capt. Amarinder Singh is the petitioner in Transfer Petition No. 235 of 2008. M/s. Jeet Mohinder Singh, Sukhpal Singh, Gurpreet Singh and Mangat Ram Bansal who are all members of Legislative Assembly are the petitioners in Transfer Petition No. 179 of 2008. Respondent Nos. 1 to 10 are the accused in the case relating to FIR No. 15 and 11th Respondent is the State of Punjab. Since, facts are common in both the transfer petitions, we propose to dispose of the same by this common judgment. For convenience, reference to parties will be as arrayed in Transfer Petition No. 235 of 2008.
(3.) Brief facts, as stated in the Transfer Petition No. 235 of 2008, are as follows :- a) FIR No. 15 dated 24.06.2003 filed under Sections 420, 467, 468, 471 and 120-B of Indian Penal Code, 1860 read with Sections 7, 8, 9, 10, 13(1) and (2) of the Prevention of Corruption Act, 1988 was registered at the Police Station Vigilance Bureau, Flying Squad, Mohali on the complaint of one Mr. Balwant Singh son of Mr. Sukhdev Singh. This FIR was filed for offences committed by Mr. Prakash Singh Badal (Accused No. 1, Mr. Sukhbir Singh Badal (Accused No.2) and other family members for alleged acts of corruption committed during the previous tenure of Accused No. 1 as Chief Minister of the State of Punjab for the period 1997-2002, for collecting black money, owning/possessing Nammi and Benami movable and immovable properties both in India and abroad. Summons were issued by the Special Judge, Ropar, Punjab on 01.12.2003. b) Against the summons, Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal filed a Special Leave Petition being SLP (Crl.) No. 5252 of 2003. Along with these proceedings, they also filed a Transfer Petition before this Court being T.P. (Crl.) No. 307 of 2003 challenging, inter alia, the jurisdiction of the Special Judge, Ropar. When both the petitions came up for hearing before this Court on 12.12.2003, the Special Leave Petition as well as the Transfer Petition were withdrawn by the Accused-Petitioners. The above-said Transfer Petition was withdrawn with liberty to file any other Transfer Petition in future and the same will be considered on its own merits as pleaded in that petition. c) Mr. Prakash Singh Badal and Mr. Sukhbir Singh Badal having withdrawn the above Special Leave Petition and Transfer Petition, moved an application on 16.01.2004 before the Special Judge, Ropar raising question relating to the competence and jurisdiction of the Special Court. It was submitted that the Special Court had no jurisdiction in the matter of FIR No. 15 of 24.06.2003 and that it could neither proceed nor adjudicate upon the said matter. By order dated 29.05.2004. the learned Special Judge, dismissed the said application holding that it had the requisite jurisdiction in the matter. Aggrieved by that order, on 30.06.2004, the accused filed CWP No. 9410 of 2004 before the High Court of Punjab and Haryana at Chandigarh. d) The High Court heard the said Writ Petition and after considering all the legal issues raised by the accused, rejected the same by a detailed judgment dated 02.09.2004 directing the Special Judge to conclude the trial as expeditiously as possible and in any case not later than a year from the pronouncement of the said judgment. Being aggrieved by this judgment, the accused filed Special Leave Petition being SLP (Civil) No. 19640 of 2004 before this Court. e) By this time, on the issue of law relating to sanction for prosecution in such cases, several Special Leave Petitions were filed before this Court by various Politicians across the country in separate matters relating to the jurisdiction of Special Courts dealing with such allegations of corruption, the cognizance and trial of such offences relating to corruption and other issues as to the requirement of sanction for prosecution. The entire batch of matters and all issues on law were decided by this Court by a detailed judgment dated 06.12.2006 in the matter of Prakash Singh Badal and Ors. vs. State of Punjab and Ors., (2007) 1 SCC 1 and the said special leave petitions filed by the accused came to be dismissed by this Court. As a natural outcome of this dismissal, the trial before the Special Court, which had been suspended all this while was to proceed. f) Elections were to take place in the month of February, 2007 in the State of Punjab. Hence, the Accused (who were also contesting election) sought time before the learned Special Judge and requested that the trial be taken up after the election is over and the result is announced. Thereafter, Accused No. 1 assumed power and position as the Chief Minister of Punjab the entire criminal trial took a completely different turn. g) On 15.02.2007, an application was moved by one of the Accused regarding crucial witnesses and on 21.02.2007 another application was filed by the accused for discontinuation/termination of further proceedings. Although both these applications would have serious ramifications on the case of the prosecution and the continuation of the trial, neither a cursory reply was filed by the public prosecutor to the above applications nor were they objected to. Thus at this primary stage itself it can be seen that the powerful position of Accused No. 1 occupying the highest political chair in the State as Chief Minister of Punjab was being brought down in full measure on the prosecution. h) The allegations against the accused were primarily that of corruption and of amassing assets which were disproportionate to their income. To Suppl ort this case, one of the primary documents being relied on by the prosecution was a report prepared by the Income-tax Department as regards the income/assets and other financial details of the accused. Despite this document being absolutely necessary to prove the case of the prosecution, on 23.02.2007 the Investigating Officer, Mr. Surinder Pal Singh, filed an affidavit before the Special Court/trial Court stating that the report prepared by the Income-tax Department ought not to be considered by the Special Court at the stage of framing of charge. The Investigating Officer, clearly to favour the accused, virtually throttled the case of the prosecution with his own hands by conceding before the Special Court/Trial Court that this crucial piece of evidence in the form of the Income-tax report ought not to be considered. i) The prosecution and the free and fair trial of the matter was already being further compromised, is evident from the fact that while the public prosecutor continued to fail to tender a reply to the above crucial applications filed by the Accused. The accused themselves had stopped bothering to even appear before the Special Court. By this time, Accused No. 1 Mr. Prakash Singh Badal had formally occupied the chair of Chief Minister of Punjab and was also holding the Portfolio of the Department of Home. j) When the matter came up for hearing on 01.03.2007 and the Special Public Prosecutor Mr. Amar Preet Singh Deol had closed his arguments, an application was moved by the Public Prosecutor Mr. Pardeep Mehta under Section 173 (8) of the Code of Criminal Procedure, 1973 seeking permission to conduct "further investigation". While strangely such an application was made after the Special Public Prosecutor had concluded his arguments, it was further made evident that the Prosecution was under the pressure of, inter alia, Accused No. 1 who was now the Chief Minister of Punjab to seek a medium through which the case of the prosecution against the Accused could be weakened. This would naturally be under the garb of such "further investigation"which had now become "necessary". k) Again when the matter came up for hearing on 06.03.2007, neither of the accused was present in the Court in spite of the express directions of the Special Court. As far as the applications were concerned, a vague and perfunctory reply was filed by Mr. Pardeep Mehta, the Public Prosecutor, which in fact did not even deal with the contentions set out in the said application. There was not even a word of objection or opposition to the said application. As a matter of fact, the reply filed by the prosecution requested the Court to adjourn these applications and keep them sine die. l) The public prosecutor Mr. Pardeep Mehta, who had been protecting the interest of the Accused was now made "in charge"of the case, obviously by the Government headed by Accused No. 1. Further it may be important to note that by now, Accused No. 1 was now in charge of Home Department and more particularly, the Vigilance Department. m) When the matter once again came up for hearing on 07.03.2007, the Court was constrained to note that no proper/final reply had been filed by the Prosecution with regard to the applications filed by accused inter alia for discontinuation/termination. n) Despite a complete lack of assistance and interest on the part of the prosecution, the Special Judge, Ropar framed charges against the Accused including Mr. Prakash Singh Badal (Chief Minister of Punjab, Mr. Shukhbir Singh Badal (Son of the Chief Minister) and other members of the family and known associates under Sections 13 (1)(a, 13(2, 13(1)(e, 8, 9 and 14 of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code, 1860. On 09.03.2007, the Special Judge dismissed the application filed by the Public Prosecutor Mr. Pardeep Mehta for permission to conduct "further investigation"under the provisions of Section 173 (8) of the Cr.P.C. along with various other applications filed by the Accused with regard to directing the prosecution to clear their stand on the statements of the witnesses and application for termination of further proceedings and the challan in view of the alleged infirmity in the proposed charges to be framed against the accused. o) Despite all the damage that could have done through the prosecution after the framing of the charge, the Government of Punjab, Department of Home Affairs and Justices issued Notification No. 21/17/2000-3/JUDL (1)/1418 dated 10.05.2007/11.05.2007 cancelling the appointments of all existing special public prosecutors in the case. Ironically the said Notification was said to be passed with immediate effect in public interest. Thus Accused No. 1 who was holding charge of the Home Ministry portfolio was in a position to actually decide as to who should be his prosecutor. p) All the eleven officials who appeared as witnesses despite admitting to their respective signatures on their statements under Section 161 of the Criminal Procedure Code, 1973 resiled from the contents thereof. It may be seen that if, fear of or a sense of favour towards the Accused had driven the above witnesses who are officials of Departments such as the Vigilance Bureau, Irrigation and PWD Department to resile from their sworn statements, there could be no hope of truth or assurance of safety for the witnesses in the case. q) When the prosecution further continued on 20.08.2007, three more prosecution witnesses were examined and they all resiled from the statements made before them. r) The conduct of the Prosecution and the manner in which the Accused has struck at the heart of it and made it defenceless can be seen from the fact that in the course of such trial, it is common practice for the prosecution to require examination of the investigating officer at the end of evidence so that such investigating officer may prove the statement of the other witnesses even if they were to have resiled from the same in the course of examination. However, in the present case, despite the fact that some prosecution witnesses had already started resiling from their statements, the prosecution deliberately made an application for examining the investigating officer Mr. Surinder Pal Singh, prematurely and at the beginning of such proceedings. If such Investigating Officer was to be examined at this early stage, then there would be nobody left to prove the statements of prosecution witnesses who were resiling. However, this application was dismissed by the Special Court/Trial Court vide order dated 20.08.2007. s) The manner in which the public prosecutor Mr. Pardeep Mehta was covering up for the accused and helping them is made further clear when the State of Punjab actually appealed the above order of the Special Court/Trial Court dated 20.08.2007 dismissing the above application which was so done by challenging the order before the High Court of Punjab and Haryana at Chandigarh vide Criminal Misc. No. 45232-M of 2007 under the provisions of Section 482 of Code of Criminal Procedure praying that the application moved by the prosecution to examine the investigating officer before proceeding further be allowed. By order dated 14.11.2007, the High Court directed the Special Court to consider afresh any such application that may be filed by the public prosecutor in the near future. t) The complete and deliberate breakdown of the prosecution case became further clear when on 17.01.2008 the Complainant Mr. Balwant Singh too resiled from his affidavit by stating that he had no knowledge of the contents of the Complaint which had led to registration of the said FIR No. 15 dated 26.04.2006 and despite acknowledging his signatures on each and every document of the complaint and the accompanying affidavit, stated that he had in fact signed these papers for the purchase of a vehicle. u) Finally on 04.02.2008, the prosecution finally succeeded in persuading the trial Court to examine the Investigating Officer Mr. Surinder Pal Singh. The Investigating Officer Mr. Surinder Pal Singh in his examination-in-chief has virtually resiled from every aspect of the investigation; stated that he did not record the witness statements in question and wherever his signatures appear on the record of the case was because "he signed where he was told to". v) This trial is now a sham and a farce designed to meet the ends of the accused who are in complete control of every aspect of it. ;