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2023 Supreme(Online)(SC) 8583
Surya Kant, J.K. Maheshwari, JJ
Afjal Ali Sha @ Abjal Shaukat Sha – Appellant
Versus
State of West Bengal & Ors. – Respondent
Transfer Petition (Criminal) No. 409 of 2021
For the Appellants/Petitioners: P.S. Patwalia
For the Respondents: Kapil Sibal, Neeraj Kishan Kaul, V. Giri
A fair trial is a fundamental right; transfer under Section 406 requires substantive evidence of bias and potential miscarriage of justice, which the court found manageable through local safeguards.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 406 - Constitution of India - Article 139A - Transfer petition for criminal trial - Request to transfer trial due to inability to secure fair trial in West Bengal - Allegations of witness intimidation and political influence during trial - The court held that claims of mala fide state action were substantiated, but no legal necessity for transfer outside of West Bengal was established; the trial would be directed to proceed in Calcutta with additional safeguards for witness protection. (Paras 1, 14, 35, 36)
Facts of the case:
The petitioner, brother of the deceased, sought transfer of a trial from West Bengal to Assam based on fears of an unfair trial, citing instances of witness intimidation and changes in state prosecution's stance. The deceased was alleged to have been murdered by goons associated with political interests. (Paras 1-6)
Findings of Court:
The High Court reinstated the importance of ensuring a fair trial while ruling that ongoing judicial oversight would suffice instead of transferring the case to another state. The safety of witnesses would be ensured by the state. (Paras 35, 36)
Issues: The primary issues revolved around the potential bias in the local prosecution, witness intimidation, and whether the trial should be transferred to another jurisdiction. (Paras 3, 35)
Ratio Decidendi: The court reiterated that a substantial apprehension of an unfair trial must be demonstrated to justify transferring a case from one jurisdiction to another, and affirmed that proper measures could be taken in situ to ensure fairness. (Paras 27, 34)
Result: The transfer petition was disposed of, with the trial ordered to be held in Calcutta under specific directives to protect the integrity of the proceedings and witnesses.
| Table of Content |
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| 1. details of the criminal incident and proceedings (Para 4 , 5 , 6 , 7) |
JUDGEMENT
Surya Kant, J. 1. This transfer petition has been preferred under Section 406 of the Code of Criminal Procedure , 1973 (hereinafter, ‘CrPC’), read with
A. FACTS Page | 1 Digitally signed by VISHAL ANAND Date: 2023.03.17 15:00:27 IST Reason:
- Signature Not Verified 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, ‘Defacto Complainant’), who is stated to be the Deceased’s nephew and an eyewitness 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 chargesheet was submitted against the said individuals along with a list of 107 witnesses, including the Defacto 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 Page | 2 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 Defacto 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 Page | 3 26.02.2021 at the Calcutta High Court, but regardless thereto, he proceeded to hear the application and allowed the
