MAIN POINTS
The right to fair trial is not singularly absolute from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large.
A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.
An accused cannot be permitted to jettison the basic fundamentals of trial in the name of fair trial.
Section 3 of the 1950 Act does not create an impediment on the part the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State.
The submission that this Court in exercise of equity jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable.

Headnote:(a) Transfer of Prisoners Act, 1950 – Section 3 r/w Article 21, Constitution of India – Order of transfer has to be made judicially – Fair trial – Concerns of accused as well as victim – Right to fair trial not only a basic fundamental right, but a human right also – Any hindrance in fair trial could be violative of Article 14 – Interests of the society cannot be disregarded or totally ostracized for fair trial. (Para 30, 31)
       (1980) 3 SCC 488; (2012) 13 SCC 192 – Relied upon
       (1978) 4 SCC 494; AIR 1963 SC 1295; (1978) 1 SCC 248; (1975) 3 SCC 185 – Referred
       (b) Constitution of India – Article 21 r/w section 357, Code of Criminal Procedure, 1873 – Fair trial – Article 21 in its ambit and sweep covers interest of the accused, prosecution and the victim – Right under Article 21 not absolute – Can be curtailed in accordance with law. (Para 33, 41, 44, 45)
       (2014) 2 SCC 401; (1979) 4 SCC 167; (2010) 6 SCC 1; (2012) 9 SCC 408; (2004) 4 SCC 158; (2015) 8 SCC 787; (2016) 8 SCC 762 – Relied upon
       (c) Constitution of India – Article 21 – Rights of the accused and the victim – Need for balancing – Test of larger public interest or principle of “greater community interest”. (Para 46, 49, 53, 55)
       AIR 1962 SC 305; (2016) 7 SCC 221; (1998) 8 SCC 296; (1977) 1 SCC 677; (2016) 9 SCC 541 – Relied upon
       (d) Constitution of Indian – Article 32 and 142 – Distinction between judicial function and the legislative action; and executive action and direction from the Court – Instantly no State action under challenge – Transfer of prisoner by Constitutional Courts in absence of a provision in Act, 1950 – Not precluded. (Para 58)
       (2010) 3 SCC 571 – Relied upon
       AIR 1967 SC 1170 – Distinguished
       (e) Constitution of India – Articles 32, 142 and 141 r/w section 3, Transfer of Prisoners Act, 1950 – Equity – Cannot override law – Transfer an accused by one State to another – Conditions in section 3 would be mandatory – Section 3 cannot restrain Court from exercising its jurisdiction under Article 32 or 142. (Para 67)
       (1977) 1 SCC 677; AIR 1963 SC 996 – Relied upon
       (1988) 2 SCC 602; (1984) 2 SCC 183; (1998) 4 SCC 409; (1991) 4 SCC 406; (2012) 7 SCC 80; (1997) 8 SCC 713; 1995 Supp. (3) SCC 704; (2009) 10 SCC 425; (2004) 8 SCC 569 – Referred
       (f) Transfer of Prisoners Act, 1950 – Section 3 r/w Article 142, Constitution of India – Transfer out of State and trial by video conferencing – Respondent 3 – Two times MLA and four times MP – History sheeter type A – Booked in 75 cases – Convicted in 10 cases – Facing trial in 45 cases – In custody in 15 cases including one for murder – High Court granting bail without properly considering criminal antecedents of the accused whose acts created a concavity in the social stream – Not proper – Recording of evidence by way of video conferencing valid in law. (Para 69, 73)
       (2014) 16 SCC 508; (2005) 3 SCC 284; (2000) 9 SCC 572; (1985) 1 SCC 317 – Relied upon
       Facts of the case:
       Prayer is made in these petitions to transfer the cases against M. Shahabuddin outside Bihar an to him in a jail in Delhi and to conduct the trial by video conferencing etc.
       Findings of the Court:
       The right to fair trial is not singularly absolute from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large.
       A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.
       An accused cannot be permitted to jettison the basic fundamentals of trial in the name of fair trial.
       Section 3 of the 1950 Act does not create an impediment on the part the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State.
       The submission that this Court in exercise of equity jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable.
       Result: Petitions disposed of

JUDGMENT

Dipak Misra, J.

Regard being had to the similitude of prayers and considering the commonality of issues exposited in these Writ Petitions, they were finally heard together. The principal issue raised is disposed of by this singular order. It is necessary to note that in Writ Petition (Criminal) No. 132 of 2016 preferred by Asha Ranjan, it has been prayed for issue of appropriate directions to the Central Bureau of Investigation (CBI) to take over the investigation in connection with FIR No. 362/16 dated 13.05.2016 under Police Station Nagar Thana, Siwan, District Siwan under Sections 302/120B read with Section 34 of the Indian Penal Code (IPC); to transfer the entire proceedings and trial in FIR No. 362/16 dated 13.05.2016 registered under the same Police Station for the same offences from Siwan, Bihar to Delhi; to call for the status report in the investigation relating to FIR No. 362/16 dated 13.05.2016; to grant appropriate compensation to the petitioner and her family members and to ensure their security. That apart, there is also a prayer to register FIR against respondent Nos. 3 and 4 for conspiracy and harboring and sheltering the proclaimed offenders in FIR No. 362/16 dated 13.05.2016. In this Writ Petition, at a subsequent stage, Criminal Miscellaneous Petition No. 17101 of 2016 has been filed for transfer of respondent No. 3, M. Shahabuddin, from Siwan Jail, Bihar to a jail in Delhi. During the pendency of this case, Writ Petition (Criminal) No. 147 of 2016 came to be filed. In the said Writ Petition, the prayer is to issue a direction to transfer respondent No. 3, M. Shahabuddin, to a jail outside the State of Bihar and to issue further directions for conducting of the trial in pending cases against him through video conferencing. Thus, the prayers in Writ Petition (Criminal) No. 147 of 2016 are two fold and in Writ Petition (Criminal) No. 132 of 2016 are manifold.

2. It is apposite to state here that both the cases, as stated earlier, were heard together and learned counsel for the parties addressed the Court with regard to sustainability of prayer for transfer of the cases pending against respondent No. 3, Shahabuddin, from Siwan Jail to a jail in Delhi and conducting of the trial through video conferencing. As far as lodging of FIR against respondent No. 4 in Writ Petition (Criminal) No. 132 of 2016 is concerned, hearing on the said aspect was deferred which is clear from the order passed on January 17, 2017 in Writ Petition (Criminal) No. 132 of 2016. We think it appropriate to reproduce the same:-

“In this writ petition, though the prayers have been couched in a manifold manner, there are basically three prayers, namely, the transfer of proceedings from Siwan, Bihar, to Delhi; secondly, to issue a direction to C.B.I. to investigate into certain crimes; and thirdly, to pass appropriate direction to register an F.I.R. against the respondent Nos.3 and 4.

As far as the direction to C.B.I. for taking investigation is concerned, this Court had already issued the directions and, therefore, the said prayer does not any more survive.

As far as the transfer of the proceedings is concerned which is associated with the transfer of the accused, we are going to deal with the same in the criminal miscellaneous petition filed in this writ petition and Writ Petition (Crl.) No.147 of 2016.

As far as the third prayer is concerned, it is seriously opposed by Mr. Surendra Singh, learned senior counsel for the respondent No.4 on the ground that there is no warrant or justification for lodging of an F.I.R. and, in any case, no case is made out and what has been stated is solely on the basis of the photographs published in the newspapers. Be that as it may, as far as this prayer is concerned, it shall be dealt with on the another date as we have reserved the order regarding transfer of the respondent No.3 from Siwan Jail,

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2017 Supreme(SC) 151

Cases Referred (34)