Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 230

SUPREME COURT OF INDIA
Surya Kant, J.K. Maheshwari, JJ.
Afjal Ali Sha @ Abjal Shaukat Sha – Appellant
Versus
State of West Bengal & Ors. – Respondents
Transfer Petition (Criminal) No. 409 of 2021
Decided On : 17-03-2023

Advocates appeared:
For the Petitioner(s): Mr. P.S. Patwalia, Sr. Adv. Mr. Nirnimesh Dube, AOR Ms. Bansuri Swaraj, Adv. Mr. Siddhesh Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Akash Singh, Adv. Mr. Nihar Dharmadhikari, Adv. Ms. Sampriti Baksi, Adv.
For the Respondent(s): Mr. Kapil Sibal, Sr. Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Ravinder Singh, Adv. Mr. Nipun Saxena, Adv. Mr. Srisatya Mohanty, Adv. Mr. Raveesha Gupta, Adv. Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Ms. Aparajita Jamwal, Adv. Mr. Himanshu Chakravarty, Adv. Mr. Devvrat Singh, Adv. Ms. Muskan Surana, Adv. Ms. Somya Saxena, Adv. Mr. Archit Adlakha, Adv. Ms. Astha Sharma, AOR Mr. V Giri, Sr. Adv. Mr. Rohit Agarwal, Adv. Mr. Goutam Dey, Adv. Mr. Partha Sil, AOR Mr. Tavish Bhushan Prasad, Adv. Ms. Sayani Bhattacharya, Adv. Mr. Arjun Ranganathan, Adv. Ms. Reshmi Rea Sinha, AOR Mr. Abhishek Sarkar, Adv. Mr. Mani Bhushan Sinha, Adv. Mr. Pranab Prakash, AOR Mr. Soumya Dutta, AOR Mr. Siddhant Upmanyu, Adv.

IMPORTANT POINTS
(1) Transfer of criminal trial – Justice will not be done is a prerequisite for transfer of case – Right to a fair trial is a fundamental right under Article 21 of Constitution of India and its importance cannot be emphasised enough.
(2) Transfer of criminal trial – Convenience of parties and witnesses as well as language spoken by them are also relevant factors when deciding a transfer petition.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 406 read with Article 139A of Constitution of India and Order 39 of Supreme Court Rules, 2013 – Transfer of criminal trial – Petitioner, being real brother of deceased, is vitally interested in a fair trial so that deceased and his family gets justice – Respondents’ challenge to locus standi of Petitioner is rejected – Justice will not be done is a prerequisite for transfer of case – Right to a fair trial is a fundamental right under Article 21 of Constitution of India and its importance cannot be emphasised enough – However, to obtain transfer of a case, Petitioner is required to show circumstances from which it can be inferred that he entertains a reasonable apprehension – This apprehension cannot be imaginary and cannot be a mere allegation – Power of transfer under Section 406, Cr.P.C. is to be exercised sparingly and only when justice is apparently in grave peril. (Paras 24, 25, 26 and 27)
(B) Criminal Procedure Code, 1973 – Section 406 read with Article 139A of Constitution of India and Order 39 of Supreme Court Rules, 2013 – Transfer of criminal trial – Convenience of parties and witnesses as well as language spoken by them are also relevant factors when deciding a transfer petition – State of West Bengal has taken a complete u-turn with a view to help main accused and it went to the extent of resorting to its powers under Section 321 of Cr.P.C. to withdraw prosecution itself – There is no legal necessity to transfer trial outside State of West Bengal and the apprehensions of Petitioner, some of which are indeed genuine, can be effectively redressed by issuing appropriate directions – More than 90 witnesses, most of whom are Bengali speaking, are yet to be examined – Transfer of trial to any other neighbouring State will cause serious impediment in deposition of those witnesses and some of them might be reluctant to travel to a far away place and case of Prosecution will be severely prejudiced – So long as High Court and District Judiciary are ensuring fairness in trial proceedings within their jurisdictional framework, Court not inclined to accept that victim’s family will not get fair justice, if trial is held in State of West Bengal – Criminal Trial ordered to be transferred from Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to Court of Chief Judge, City Sessions Court at Calcutta. (Paras 31, 33, 35 and 36)
Facts of the case:
Present transfer petition has been preferred under Section 406 of Code of Criminal Procedure, 1973, read with Article 139A of Constitution of India and Order 39 of the Supreme Court Rules, 2013. Petitioner herein is the brother of deceased and he seeks transfer of the criminal trial S.T. No. 1 (03) of 2020, arising out of FIR No. 495 of 2019 registered at PS Panskura, pending in the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal, to a competent court in the State of Assam, primarily on the ground that a fair trial will not be possible in the State of West Bengal.
Findings of Court:
Criminal Trial bearing ST No. 1 (03) of 2020 arising out of FIR No. 495/2019 registered at Police Station Panskura, District Purba Medinipur is ordered to be transferred from the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of Chief Judge, City Sessions Court at Calcutta. Trial shall be conducted by the Chief Judge, City Sessions Court and he shall not entrust the case to any other Additional Sessions Judge. Wife of deceased, Petitioner and other crucial prosecution witnesses shall be provided adequate security. State of West Bengal is directed to ensure that no harm is caused to the life and liberty of witnesses and no direct or indirect attempt is made by Respondent No. 2 or his co-accused persons or anyone on their behalf to influence, frighten or threaten the witnesses.
Result : Transfer Petition disposed of.

JUDGMENT

Surya Kant, J.

1. This transfer petition has been preferred under Section 406 of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), read with Article 139A of the Constitution of India and Order 39 of the Supreme Court Rules, 2013. The Petitioner herein is the brother of one Kurban Sha (hereinafter, ‘Deceased’) and he seeks transfer of the criminal trial S.T. No. 1 (03) of 2020, arising out of FIR No. 495 of 2019 registered at PS Panskura, pending in the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal (hereinafter, ‘Trial Court’), to a competent court in the State of Assam, primarily on the ground that a fair trial will not be possible in the State of West Bengal.

A. FACTS

2. The factual matrix is succinctly discussed below before delving into the aforesaid issue that arises for our consideration.

3. On the date of incident, i.e., 07.10.2019, the Deceased is alleged to have been shot in the neck by ‘certain unknown musclemen & goons’ when he was working in the office of a political party. The Deceased was immediately rushed to a hospital but was declared dead on arrival. On the next day, the subject FIR was lodged under Section 302 read with Section 120B of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) and, under Sections 25 and 27 of the Arms Act, 1959 against Respondent No. 2 at the behest of one Jahar Sha (hereinafter, ‘De-facto Complainant’), who is stated to be the Deceased’s nephew and an eye-witness to the alleged occurrence.

4. After investigation, the police authorities concluded that Respondent Nos. 3 to 11 were also involved in the offence, along with Respondent No. 2. A charge-sheet was submitted against the said individuals along with a list of 107 witnesses, including the De-facto Complainant and the Petitioner. It is pertinent to mention that during the investigation, the police is also said to have recovered some incriminating material such as fire arms, ammunition and certain documents.

5. Accordingly, charges were framed against Respondent Nos. 2 to 8 and Respondent No. 11 by the Trial Court under Sections 302 read with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959. Respondent Nos. 9 & 10 had previously been declared as proclaimed offenders. The trial commenced in September, 2020. The main accused, i.e., Respondent No. 2, continues in custody as his repeated bail applications have been dismissed by the Trial Court as well as by the Calcutta High Court.

6. During the pendency of the trial, the Legal Remembrancer & Ex-Officio Secretary to the Government of West Bengal, Judicial Department, by an order of the Governor, issued a notification dated 26.02.2021 directing the Public Prosecutor to apply under Section 321 of CrPC and withdraw the criminal proceedings against Respondent Nos. 2 to 11, subject to the consent of the learned Trial Court. This notification was challenged by the De-facto Complainant before the Calcutta High Court.

7. Soon thereafter, on 01.03.2021, a newly appointed Public Prosecutor moved an application before the learned Trial Court praying for withdrawal of the prosecution case stating that it was marred with political and personal vendetta. This application was taken up for hearing on the very next day by a Link Judge who was presiding over the Trial Court, despite the fact that the case was listed for recording evidence on 10.03.2021. The Link Judge was reportedly informed about the pending challenge to the notification dated 26.02.2021 at the Calcutta High Court, but regardless thereto, he proceeded to hear the application and allowed the Prosecution to withdraw the case. As a result, Respondent Nos. 2-11 were acquitted.

8. Meanwhile, the writ petition filed by the De-facto Complainant was taken up for hearing on the afternoon of the same day when the Trial Court had allowed the Public Prosecutor to withdraw the criminal case. A learned Single Judge of the High Court noted as follows:

“Surprisingly, in the instant case, a speci