ZAHIRA HABIBULLAH SHEIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two applications "for directions and modification of the judgment and order dated 12-4-2004 in Crl. Appeal Nos. 446-449 of 2004 and Crl. Appeal Nos. 450-452 of 2004 (Zahira Habibulla H. Sheikh and anr. vs. State of Gujarat and ors, and connected cases)" (reported in (2004) 4 SCALE 375 have been filed by the State of Gujarat and one of the accused by name Tulsibhai Bhikhabhai Tadvi who faced trial in the case. It would be appropriate to first deal with application filed by the State of Gujarat.

(2.) The reasons for making this application primarily are that the direction for fresh trial outside the State of Gujarat is unwarranted, per incuriam being not permissible in law, in violation of principles of natural justice, without consideration of real factual scenario, without specific prayer in that regard and reflect adversely on the credibility of the entire judiciary and administration of the State.

(3.) Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant-State submitted that the direction given for transfer outside the State of Gujarat is not in accordance with law. According to him, such a direction could only have been given on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 (in short the Code) and not otherwise. Strong reliance is placed on a decision of this Court in A. R. Antulay vs. R. S. Nayak and another, (1988) 2 SCC 602. Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206 respectively. It was submitted that even by exercise of power under Article 142 of the Constitution of India, 1950 (in short the Constitution) also such a direction could not have been given. Reference in this context was made to Supreme Court Bar Association vs. Union of India and anr., (1998) 4 SCC 409. There is no power according to the applicant-State for suo motu directing such a course to be adopted.