# 1 S.C.R. 945 ASHA RANJAN v. STATE OF BIHAR & ORS - **Citation:** [2017] 1 S.C.R. 945 - **Court:** Supreme Court of India - **Decided:** 2017-02-15 - **Bench:** Dipak Misra, Amitava Roy - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-945-asha-ranjan-v-state-of-bihar-ors-31720 - **Pages:** 61 ## Headnote Constitution of India: Arts. 32, 142 and 144 - Power under - Issuance of direction to transfer accused from one State to another - Brutal murder of petitioner's husband (senior reporter) by group of persons. respondent no. 3 and 4 and other accused persons - Third respondent, a dreaded criminal-cum-politician. declared historysheeter type 'A' (who is beyond reform) - Till today booked in 75 cases, out of which convicted in JO cases and facing trial in 45 cases - One such case relates to murder of the third son of the petitioner and other 11~10 are of atte111pt to 111urder ~ Jt'rit petition by petitioner seeking transfer of third respondent from Siwan Jail to Tihar Jail - Held: Section 3 doe5 not create impediment on the part of the court to pass an order of transfer of on accused or a convict fiwn one jail in o State to another prison in another State because it creates a bar on the exercise of power on the executive only - Court in exercise of power u!Art. 142 cannot curtail fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions, yet when a case of the instant nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law - It is the obligation and duty of this Court to ensure free and fair trial - Thus, State of Bihar directed to transfer the third respondent from Siwan Jail, District Siwan to Tihcr Jail, Delhi, ofter giving prior intimation for his transfer in Delhi - Pending trials would be conducted by video conferenc;nr: - transfer of Prisoners Act, 1950 - s.3. Art. 21 - Fair trial - Concepl a/-Held: Is facet of Art. 21 - Right to fair trial is not singularly absolute, os perceived, from the perspective of the accused - It tokes in its ambit and sweep the 945 A B c D E F G H 946 A B c D E F G H SUPREME COURT REPORTS [2017] 1 S.C.R. right of victim(s) and society at large - These factors would collectively allude and constitute Rule of Law-free and fair trial - When there is intra-conflict-with the interest of victim or collective/ interest of society in respect of the same fundamental right, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, interest of the society as a whole, when it would promote and instill Rule of Law - Fair trial is not what the accused wants in the name of fair trial - Fair trial must soothe the ultimate ;ustice, sought individually, but is subservient and would not prevail when fair trial requires transfer of criminal proceedings. Disposing of Writ Petition (Criminal) No.147 of 2016 and partly disposing of Writ Petition (Criminal) No. 132 of 2016, the Court HELD: 1.1 On a stndied analysis of the concept of fair trial as a facet of Article 21 of the Constitution, it is noticeable that in its ambit and sweep it covers interest of the accused, prosecution and the victim. The victim, may be a singular person, who has suffered, but the injury suffered by singular is likely to affect the community interest. Therefore, the collective under certain circumstances and in certain cases, assume the position of the victim. They may not be entitled to compensation as conceived under section 357 A CrPC but their anxiety and concern of the crime and desire to prevent such occurrences and that the perpetrator, if guilty, should be punished, is a facet of Rule of Law. And that has to be accepted and ultimately protected. [Para 44] [982-C-E] 1.2 The right under Article 21 is not. absolute. It can be curtailed in accordance with law. The curtail.ment of the right is permissible by following due procedure which can withstand the test of reasonableness. The submission that if the accused is transferred from jail in Siwan to any other jail outside the State of Bihar, his right to fair trial would br smothered and there will be an inscription of an obituary of fair trial and refutation of th6 said proponement, that the accused neither has monopoly over the proce ## Text _Characters 0–39,992 of 138,263. This is a partial read: ask again with offset=39992 for what follows._ (2017] 1 S.C.R. 945 ASHA RANJAN v. STATE OF BIHAR & ORS. (Writ Petition (Criminal) No. 132of2016) FEBRUARY 15, 2017 (DIPAK MISRA AND AMITAVA ROY, JJ.] Constitution of India: Arts. 32, 142 and 144 - Power under - Issuance of direction to transfer accused from one State to another - Brutal murder of petitioner's husband (senior reporter) by group of persons. respondent no. 3 and 4 and other accused persons - Third respondent, a dreaded criminal-cum-politician. declared historysheeter type 'A' (who is beyond reform) - Till today booked in 75 cases, out of which convicted in JO cases and facing trial in 45 cases - One such case relates to murder of the third son of the petitioner and other 11~10 are of atte111pt to 111urder ~ Jt'rit petition by petitioner seeking transfer of third respondent from Siwan Jail to Tihar Jail - Held: Section 3 doe5 not create impediment on the part of the court to pass an order of transfer of on accused or a convict fiwn one jail in o State to another prison in another State because it creates a bar on the exercise of power on the executive only - Court in exercise of power u!Art. 142 cannot curtail fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions, yet when a case of the instant nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law - It is the obligation and duty of this Court to ensure free and fair trial - Thus, State of Bihar directed to transfer the third respondent from Siwan Jail, District Siwan to Tihcr Jail, Delhi, ofter giving prior intimation for his transfer in Delhi - Pending trials would be conducted by video conferenc;nr: - transfer of Prisoners Act, 1950 - s.3. Art. 21 - Fair trial - Concepl a/-Held: Is facet of Art. 21 - Right to fair trial is not singularly absolute, os perceived, from the perspective of the accused - It tokes in its ambit and sweep the 945 A B c D E F G H 946 A B c D E F G H SUPREME COURT REPORTS [2017] 1 S.C.R. right of victim(s) and society at large - These factors would collectively allude and constitute Rule of Law-free and fair trial - When there is intra-conflict-with the interest of victim or collective/ interest of society in respect of the same fundamental right, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, interest of the society as a whole, when it would promote and instill Rule of Law - Fair trial is not what the accused wants in the name of fair trial - Fair trial must soothe the ultimate ;ustice, sought individually, but is subservient and would not prevail when fair trial requires transfer of criminal proceedings. Disposing of Writ Petition (Criminal) No.147 of 2016 and partly disposing of Writ Petition (Criminal) No. 132 of 2016, the Court HELD: 1.1 On a stndied analysis of the concept of fair trial as a facet of Article 21 of the Constitution, it is noticeable that in its ambit and sweep it covers interest of the accused, prosecution and the victim. The victim, may be a singular person, who has suffered, but the injury suffered by singular is likely to affect the community interest. Therefore, the collective under certain circumstances and in certain cases, assume the position of the victim. They may not be entitled to compensation as conceived under section 357 A CrPC but their anxiety and concern of the crime and desire to prevent such occurrences and that the perpetrator, if guilty, should be punished, is a facet of Rule of Law. And that has to be accepted and ultimately protected. [Para 44] [982-C-E] 1.2 The right under Article 21 is not. absolute. It can be curtailed in accordance with law. The curtail.ment of the right is permissible by following due procedure which can withstand the test of reasonableness. The submission that if the accused is transferred from jail in Siwan to any other jail outside the State of Bihar, his right to fair trial would br smothered and there will be an inscription of an obituary of fair trial and refutation of th6 said proponement, that the accused neither has monopoly over the process nor does he has any exclusively absolute right, requires a balanced resolution. The opposite arguments are both predicated on the precept of fair trial and the said scale would ASHA RANJAN v. STATE OF BIHAR & ORS. decide this controversy. The interest of the victim is relevant and has to be taken into consideration. The contention that if the accnsed is not shifted out of Siwan Jail, the pending trials would result in complete farce, for no witness would be in a position to depose against him and they, in total haplessness, shall be bound to succumb to the feeling of accentuated fear that is created by his unseen tentacles, is not an artifice and cannot be ignored. In suc·h a situation, the Court should balance the rights between the accused and the victims and thereafter, weigh on the scale of fair trial whether shifting is necessary or not. It would be travesty if the said assertion is ignored that if the respondent No. 3 is not shifted from Siwan Jail and the trial is held at Siwan, justice, which is necessitous to be done in accordance with law, would suffer an unprecedented set back and the petitioners would remain in a constant state of fear that shall melt their bones. This would imply balancing of rights. [Para 45] (982-E-H; 983-A-B] 1.3 Circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right. In the instant case, the accused has a fundamental right to have a fair trial under Article 21. Similarly, the victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. No fundamental right is absolute and it can have limitations in certain circumstances. Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds of law. However, when there is intra-conflict of the right conferred under the same Article, like fair trial, the test that is required to be applied, would be "paramount collective interest" or "sustenance of public confidence in the justice dispensation system". Thus, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should 947 A B c D E F G H 948 A B c D E F G H SUPREME COURT REPORTS [20 I 7] I S.C.R. be protected. There can be no denial of the fact that the rights of the victims.for a fair trial is an inseparable aspect of Art. 21 and when they assert that right by themselves as well as the part of the collective, conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes Rule of Law. It may be clarified at once that test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would snbserve the larger public interest and serve the majesty of rule of law.[Para 53] (986-F-H; 987-A-B, C-F] 1.4 There may be a perception that if principle of primacy is to be followed, then the right of one gets totally extinguished·. It has to be borne in mind that total extinction is not balancing. When balancing act is done, the right to fair trial is not totall:· crippled, but it is curtailed to some extent by which the accuse• gets the right of fair trial and simultaneously, the victims feel th~t the fair trial is conducted aud the court feels assured that there is a fair trial in respect of such cases. That apart, the faith of the collective is reposed in the criminal justice dispensation system and remains anchored. [Para 54] [987-H; 988-A-B] 1.5 While appreciating the concept of public interest in such a situation, the Court is required to engage itself in construing the process of fair trial which ultimately subserves the cause of justice and remains closer to constitutional sensibility. An accused, in the name of fair trial, cannot go on seeking adjournments defeating the basic purpose behind the conducting of a trial as enshrined under Section 309 Cr.P.C. He cannot go on filing applications under various provisions of Cr.P.C., whether tenable or not, and put forth a plea on each and every occasion on the bedrock that principle of fair trial sanctions it. In such a situation, the prosecution which represents the cause of collective and the victim, who fights for reinedy of his individual grievance, is allowed to have a say and the court is not expected to be a silent spectator. Thus, the discord that arises when there is intra-conflict in the same fundamental right especially, in the context of fair trial, it has to be resolved regard being had to the ASHA RANJAN v. STATE OF BIHAR & ORS. obtaining fact situation. An accused who has been able to, by his sheer presence, erode the idea of safety of a witness in court or for that matter impairs and rusts the faith of a victim in the ultimate justice and such erosion is due to fear psychosis prevalent in the atmosphere of trial, is not to be countenanced as it is an unconscionable situation. Such a hazard is not to be silently suffered because the "Majesty of Justice" does not allow such kinds of complaints to survive. [Para 55] [988-C-F] 1.6 There can be no doubt that equity cannot override law. Section 3 of the Transfer of Prisoners Act, 1950 bestows power on the State Government to transfer an accused to another State after consulting the other State. Such an action by the State has to be totally controlled by the circumstances which find mention under Section 3. When the State passes an order with the concurrence of another State, it is obliged to be bound by the circumstances which are postulated under Section 3(1), but when the issue of fair trial emerges before the constitutional court, Section 3 cannot be regarded so as to restrain the court from what is mandated and required for a free and fair trial. The statutory power is not such which is negative and curtails power of the court to act in the interest of justice, and ensure free and fair trial, which is of paramount importance for the Rule of Law. It only controls the power of the executive. [Para 68] [998-G-H; 999-A-C] 1. 7 The third respondent has already been declared as a history-sheeter type 'A'(who is beyond reform). Till today, he has been booked in 75 cases, out of which he had been convicted in 10 cases and presently facing trial in 45 cases. He has been acquitted in 20 cases. Out of 45 cases, 21 cases are those where maximum sentence is 7 years or more. He has been booked in 15 cases where he has been in custody and one such case relates to the murder of the third son of the petitioner and other two cases are of attempt to murder. He is an influential person of the locality, a representative to the Legislative Assembly on two occasions and elected as a Member of Parliament four times. This is not a normal and usual case. It has to be dealt with in the said factual matrix. A history-sheeter has criminal antecedents and sometimes becomes a terror in society. (Para 69] (999-C-F] 949 A B c D E F G H 950 A B c D E F G H SUPREME COURT REPORTS (20 I 7] I S.C.R. 1.8 The conclusions and directions are as follows: (i) The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law, i.e., free and fair trial. (ii) The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instill Rule of Law. 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. (iii) A wrongful act of an individual cannot derogate the right of fair trial as that interest is closer, especially 'in criminal trials, to the Rule of Law. An accused ca~not be permitted to jettison the basic fundamentals of trial in the name of fair trial. (iv) The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest. (v) 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 because it creates a bar on the exercise of power on the executive only. (vi) The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of ASHA RANJAN v. STATE OF BIHAR & ORS. the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial. (vii) 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 as the basic premise of the said argument is erroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity. [Para 74] [1003-D-H; 1004-A-F] 1.9 The State of Bihar is directed to transfer the third respondent from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand over the prisoner to the competent officer of Tihar Jail after giving prior intimation for his transfer. in Delhi. The authorities escorting the third respondent from Siwan·Jail to Tihar Jail would strictly follow the rules applicable to the transit prisoners and no special privilege would be extended. The transfer shall take place within a week hence. Thereafter, the trial in respect of pending trials shall be conducted by video conferencing by the concerned trial court. [Para 75] [1004-F-H] State of MP. & another v. Thakur Bharat Singh AIR 1967 SC 1170 : [1967] SCR 454 - held inapplicable. 951 A B c D E State of W.B. & Ors. v. Committee for Protection of F Democratic Rights, West Bengal & Ors. (2010) 3 SCC 571 : [2010] 2 SCR 979 - relied on. Chandrakeshwar Prasad v. State of Bihar and Anr. (2016) 9 SCC 443; Sunil Bat.ra (JI) .,v. Delhi Administration (1980) 3 SCC 488: [1980] 2 SCR 557; G State of Maharashtra & ors v. Saeed Sohai'/ Sheikh and Ors. (2012) 13 SCC 192 : [2012] 11 SCR 916; Sunil Batra v. Delhi Administration & Ors. (1978) 4 SCC 494 : [1979] 1 SCR 392; D. Bhuvan Mohan H 952 A B c D E F G H SUPREME COURT REPORTS [2017] I S.C.R. Patnaik & Ors v. State of A.P. & Ors. (1975) 3 SCC 185 : [1975] 2 SCR 24; J Jayalalithaa & Ors " State of Karnataka & Ors. (2014) 2 SCC 401; Maneka Sanjay Gandhi & another v. Rani Jethmalani (1979) 4 SCC 167 : 11979] 2 SCR 378; Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : (2010] 4 SCR 103; Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi (2012) 9 sec 408 : [2012] 10 SCR 480; Zahira Habibulla H Sheikh v. State of Gujarat (2004) 4 SCC 158 : (2004] 3 SCR 1050; Bablu Kμmar and Ors. v. State of Bihar and Anr. (2015) 8 SCC 787 : (2015] 8 SCR 512; State of Haryana " Ram Mehar and Ors. (2016) 8 SCC 762; Sakal Paper (PJ Ltd. & Ors. v. Union of India & another AIR 1962 SC 305 : (1962) SCR 842; Subramanian Swamy v. Union of India (2016) 7 SCC 221 : (2016] 3 SCR 865; Mr. 'X' v. Hospital 'Z' (1998) 8 SCC 296 : [ 1998] 1 Suppl. SCR 723; Rev. Stainislaus v. State of MP. and Ors. (1977) 1 SCC 677 : (1977] 2 SCR 611; Vikas Yadav v. State of UP. & Ors. (2016) 9 SCC 541; Prem Chand Garg & another v. Excise Commr. AIR 1963 SC 996: [1963] Suppl. SCR 885; A.R. Antulay v. R.S. Nayak & another (1988) 2 SCC 602: (1988] 1 Suppl. SCR l; R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 : (1984] 2 SCR 495; Supreme Court Bar Association " Union of India and Anr. (1998) 4 SCC 409 : (1998] 2 SCR 795; Delhi Judicial Service Association v. State of Gujarat & ors. (1991) 4 SCC 406 : (1991] 3 SCR 936; Re, Vinay Chandra Mishra (1995) 2 SCC 584 : [1995] 2 SCR 638; Narendra Champaklal Trivedi v. State of Gujarat (2012) 7 SCC 80 : [2012] 6 SCR 165; Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani & Ors. (1997) 8 SCC 713 : [1997] 5 Suppl. SCR 119; Keshabhai Malabhai Vankar v. State of Gujarat 1995 Supp. (3) SCC 704; Laxmidas Morarji v. Behrose Darab Madan (2009) 10 SCC 425 : [2009] 14 SCR 777; Shamsu Suhara Beevi v. G Alex and another (2004) 8 SCC 569 : (2004] 3 Suppl. SCR 653; Neeru Yadav v. State of UP. and Anr. (2014) 16 SCC 508 : ASHA RANJAN v. STATE OF BIHAR & ORS. 953 [2014] 12 SCR 453; Kalyan Chandra Sarkar v. Rajesh A Ranjan alias Pappu Yadav and another (2005) 3 SCC 284; State of Karnataka v. State of A.P. & Ors. (2000) 9 SCC 572 : [2000] 3 SCR 301; State of W.B. & Ors v. Sampat Lal & Ors. (1985) 1 SCC 317 : [1985] 2 SCR 256; Ashok Kumar Gupta & another v. State of B U.P. & Ors. (1997) 5 sec 201 : [1997] 3 SCR 269 - referred to. Case Law Reference (2016) .9 sec 443 referred to Para 12 c [1980] 2 SCR 557 referred to Para 22 [2012] 11 SCR 916 referred to Para22 [1979] 1 SCR 392 referred to Para 23 D [1975] 2 SCR 24 referred to Para 25 c2014) 2 sec 401 referred to Para 33 [1979] 2 SCR 378 referred to Para 34 E [2010] 4 SCR 103 referred to Para 37 [2012] 10 SCR 480 referred to Para 38 [2004] 3 SCR 1050 referred to Para38 [2015] 8 SCR 512 referred to Para 42 F (2016) 8 sec 762 referred to Para 43 [1962] SCR 842 referred to Para 46 [2016] 3 SCR 865 referred to Para 47 G [1998] 1 Suppl. SCR 723 referred to Para 48 [1977] 2 SCR 611 referred to Para 50 H 954 SUPREME COURT REPORTS [2017] I S.C.R. A (2016) 9 sec 541 referred to Para 53 [ 1967] SCR 454 referred to Para 56 [2010] 2 SCR 979 referred to Para57 B [1963] Suppl. SCR 885 referred to Para 59 [1988] 1 Suppl. SCR 1 referred to Para 60 [1984] 2 SCR 495 referred to Para 60 c [1998) 2 SCR 795 referred to Para 63 [1991] 3 SCR 936 referred to Para 64 [1995) 2 SCR 638. referred to Para 64 D [2012) 6 SCR 165 referred to Para 65 [1997] 5 Suppl. SCR 119 referred to Para 65 1995 Supp. (3) sec 704 referred to Para 65 [2009) 14 SCR 777 referred to Para 65 E [2004) 3 Suppl. SCR 653 referred to Para 66 [2014] 12 SCR 453 referred to Para 69 (2005) 3 sec 284 referred to Para 70 F [2000] 3 SCR 301 referred to Para 72 [1985] 2 SCR 256 referred to Para 72 [ 1997] 3 SCR 269 referred to Para 72 G CRIMINAL ORIGINAL JURTSDICTION: Writ Petition . (Criminal) No. 132of2016. Under Article 32 of the Constituion oflndia WITH H ·ASHA RANJAN v. STATE OF BIHAR & ORS. WP. (CrL) No. 147 of2016. Shanti Bhushan, Sr. Adv., Kislay Pandey, Ankur Gogia, Ms. Man ju Jelley, Rohit Kumar Singh, Ms. Vartika Seth, Siddharth Garg, Prashant Bhushan, Advs. for the Petitioner. P. S. Narasimha, ASG, Surendra Singh, Shekhar Naphade, Sr. Advs., Shamik Sanjanwala, Pradieep Kumar Dex, T N. Razdan, Gopal Singh, Manish Kumar, Dhirendra Singh P_arrnar, S.usheel Tomar, Ms. Aliha R. Sharma, M. Shoeb Alam, Ms. Fauzia Shakil, UjjwaJ Singh, Mojahid Karim Khan,' Advs. for the Respondents. The Judgment of the' Court was delivered by DIPAK MISRA, J. L Regard being had to the similitude of prayers and considering the commonality of issues exposited in these W.rit Petitions, they were finally hea(Jtogether. The principal issue raised is disposed of by this singular order. !tis necessary to note that in. Writ Petition (Criminal) No. 132 of2016 preferred by Asha Ranjan, it has been prayed for issue ofappropriate 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 302/1208 read with Section 34 of the Indian Penal Code (!PC); 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 I 3.05.20 I 6; 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 c'onspiracy 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 of2016 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 of2016 came to be filed. ln the said Writ Petition, the prayer is to issue a direction t-0 transfer respondei1t 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. 14 7 of 2016 are two 955 A B c D E F G H 956 A B c D E F G H SUPREME COURT REPORTS [2017] l S.C.R. fold and in Writ Petition (Criminal) No. 132of2016 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 Si wan 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 of2016 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 sa1ne:- "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.l.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 (Cr!.) No.14 7 of20 I 6. As far as the third prayer is co9cemed, 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.l.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, Bihar to another jail, which is similar to the prayer in the Writ Petition (Cr!.) No.147 of2016. The judgment shall be delivered dealing with the said aspects and the third prayer shall be considered on another day, which shall be fixed at a later stage." ASHA RANJAN v. STATE OF BIHAR & ORS. [DIPAK MISRA, J.] 3. Thus, we are presently required to deal with the transfer of the third respondent, M. Shahabuddin from the Si wan Jail, Bihar to a Jail in Delhi ~eeping in view the averments made in Writ Petition (Criminal) No. 147 of2016 and the assertions made in the application filed in Writ Petition (Criminal) No. 132 of2016. 4. The factual matrix in Writ Petition (Criminal) No. 132 of2016, as unfolded, is that on I 3.5.2016 petitioner's husband, namely, Sh. Rajdev Ranjan, Senior Reporter(Journalist Incharge, Dainik Hindustan, Siwan Bureau, Bihar) was shot dead as he received five bullet injuries in his head and other parts of his body and FIR No. 362/16 dated I 3.5.16 was registered under PS Nagar Thana, Dist. Siwan forthe offences punishable under Sections 302/J 20(B) and 34 ofIPC. 5. On 13.5.2016, the petitioner informed the police that one notorious criminal, Shahabuddin, and his henchmen were involved in the murder of her husband but the police deliberately did not include the name of Shahabuddin in the list of accused persons. Thereafter, as the matter stands today, the investigation of the said case has been transferred to the CBI. It is asseverated that in the mean time certain persons have been arrested and some have surrendered to custody. 6. The factual expose of the murder of the husband of the petitioner has a narrative that goes back to the year 2005. The husband of the petitioner, a journalist, it is averred, had written various news reports pertaining to serious and substantive criminal activities of said Shahabuddin who had threatened to eliminate him and his family members. Undeterred he kept on writing various investigative news articles and reports in respect of murder of.the three sons of one Siwan resident, namely, Chanda Babu, which eventually led to the arrest of Shahabuddin and after conclusion of the trial he stood convicted forthe offence under Section 302 !PC and sentenced to undergo life imprisonment. It is apt to note that during the trial of the said case, Shahabuddin and his shooters had constantly threatened the petitioner's husband with death threats to him and the family members. As the narration has been undraped, petitioner's husband highlighted about the murder of one Shrikant Bharti by publishing news articles and at that stage on 13.5.2016 petitioner's husband got a phone call from an unknown person on his mobile about 7. I 5 p.m. and soon thereafter he left the office and started moving towards the Station Road. About 7.30 p.m. 957 A B c D E F G H 958 A B c D E F "G. H SUPREME COURT REPORTS [2017] 1 S.C.R. he was shot dead and the ephemeral threat became a reality. 7. Thereafter, during the course of investigation, two accused persons, namely, Mohammed Kaif and Mohammad Javed were declared as proclaimed offenders. On I 0.9.2016, Shahabuddin was released on bail and the aforesaid proclaimed offenders were seen in his company but o.,athy reigned and the fear ruled so that no police official. dared to arrest them. On 14.9.2016petitioner saw the pictures of the proclaimed offenders Mohammed Kaif and Mohammad Javed with Shri Tej Pratap Yadav, Health Minister of Bihar on all media channels. 8. Feeling insecured, terrorized and helpless as regards her safety and security and of her two minor children, the petitioner has moved this Court. As set forth, the death of the husband, makes her apprehensive that Shahabuddin may eliminate herentire family. Her petrification has been agonizingly articulated in the petition and by the learned counsel, sometimes with vehemence and on occasions with desperation. · 9. At this junctl!re, we may advert to the facts in Writ Petition (Crl.) No. 14 7 of 2016. It.is averred that respondent No. 3 is a dreaded criminal-cum-politician who has already been declared history'sheeter Type A (who Is beyond reform) and till date he has been booked in 75 cases· out of which in 10 cas~s he ha_s been convicted, and facing life imprisonment in two cases and I 0 years rigorous imprisonment in one and 45 cases are pending for trial. He has been acquitted in twenty cases. The first criminal case against responde1H No. 3 was initiated in 1986. The criminal activities continued in some form or other and on 3 .5.1996 he along with his associates fired upon the then Superintendent of Police, Shri S.K. Singhal, JPS with sophisticated arms for which they were sentenced to undergo imprisonment for I 0 years. Thereafter, his name figured in the murder of former JNU President, Mr. · Chandrashekhar, who was shot dead in Si wan on 31.3.1997. It is alleged that he aiid his private army fired upon the raiding p~rty on 16.3.2002 W!1en his house was_ raided and in that incident, the vehi~les of Deputy hispector General of Police·, Saran range, District Magistrate, Siwan and Superintendent of Police, Siwan were burnt. From his house, huge quantities of amm\miti0>1 were recovered and FIR no. 32 of2001 was registered. Jn another raid conducted in 2005, large number of arms · and ammunition were r_ecovered from the house ofthethird respondent and FIR Nos, 41to44 of2005 were registered. In November, 2005 he was arrested by the joint team of Bihar and Delhi police in connection ASHA RANJAN v. STATE OF BlHAR & ORS. [DIPAK MISRA, J.] with various cases. It is put forth that he ran a parallel administration in Siwan from 1990 till 2005 and in March, 2007 he was sentenced to two years imprisonment for assault on CPI-ML offices in Siwan on 19th September, 1998. Further he was sentenced to life imprisonment on os:o5.2007 under Section 364/34 lPC for abduction with an intention to commit murder of CPI (ML) worker in February, 1999, whose dead body was never traced. 10. lt is set forth that in August 2004, three sons of the petiti.oner were picked up by the henchmen of respondent No. 3 and taken to his native village Pratappur where two of his sons, namely, Girish and Satish were drenched in acid and his third son, who witnessed the murder managed to escape and a criminal case was registered against him under Sections 341, 323, 380, 364, 435/34 !PC for abduction, etc. of the petitioner's two sons in which charges were framed on 04.06.2010 against respondent No. 3 and others. The prosecution moved an application for addition of charges under Sections 302 and 201 read with Section 120B !PC, which prayer was initially rejected on the ground of delay but after the direction of the High Court of Patna, the charges under the aforesaid Sections were added vide order dated 18.04.2014. During the litigation, the petitioner's third son, Rajeev Roshan, a material eye witness in the said case was murdered and an FIR No. 220/14 was lodged against respondent No. 3, his son Osama and other unknown persons. Thus, the three sons of the petitioner were murdered. 11. On 18.05.2016, a raid was conducted by the district administration at Siwanjail and District Magistrate, Si wan in his report stated about the conduct of respondent No. 3 inside the jail and the facilities he was enjoying in jail in violation of the jail rules/manual and recommended his transfer from·Siwan to Bhagalpur jail whereafter h~ was transferred to Bhagalpur jail for six months: 12. As the narration would further unfurl, in the said case, the._. High Court 'granted bail to'tl1erespondent No. 3 on 02.03..2016 in FIR . No. 131/04 and further granted bail in the murder's caseofthird son.of petitioner on 07.09.2016.in the FIR No. 220/14. The petitioner as well as. the State of Bihar challenged the orders granting bail. The bail orders have oeen set aside by this Court in Clumdrakeshwar Prasad v. State of Bilwr and Anr. 1• While setting aside the order granting hitn bail, this Court has held:c - ' (2016) 9 sec 443 959 A B c D E F G H 960 A B c D E F G H SUPREME COURT REPORTS (2017] 1 S.C.R. "12. In the instant case, having regard to the recorded allegations against the respondent-accused and the overall factual sc.enario, we are of the view, having regard in particular to the present stage of the case in which the impugned order has been passed, that the High Court was not justified in granting bail on the considerations recorded. Qua the assertion that the respondentaccused was in judicial custody on the date on which the incident of murder in the earlier case had occurred, the judgment and order of the trial court convicting him has recorded the version of the brother of the deceased therein, that he had seen the respondent-accused participating in the offence. We refrain from elaborating further on this aspect as the said judgment and order of the trial court is presently sub judice in an appeal before the High Court. 13. On a careful perusal of the records of the case and considering all the aspects of the matter in question and having regard to the proved charges in the cases concerned, and the charges pending adjudication against the respondent-accused and further balancing the considerations of individual liberty and societal interest as well as the prescriptions and the perception of law regarding bail, it appears to us that the.High Court has erred in granting bail to the respondent-accused without taking into consideration the overall facts otherwise having a bearing on the exercise of its discretion on the issue." On the aforementioned factual plinth, the petitioner has sought transfer of the third respondent from the Siwanjail to a jail outside the State of Bihar and conducting of the trials in pending cases by video conferencing. 13. We have heard Mr. Shanti Bhushan and Mr. Dushyant Dave, learned senior counsel and Mr. Kislay Pandey, learned counsel for the petitioners, Mr. P. S. Narasimha, learned Additional Solicitor General and Mr. P.K. Dey, learned counsel appearing for CBI, Mr. Shekhar Naphade, learned senior counsel along with Mr. M. ShoebAlam, learned counsel for respondent No. 3, Mr. Surendra Singh, learned senior counsel along with Mr. Dhirendra Singh Parmar, learned counsel for respondent No. 4 in Writ Petition (Criminal) No. 132 of2016 and Mr. Gopal Singh, learned counsel for the State of Bihar. ASHA RANJAN v. STATE OF BIHAR & ORS. [DIPAK MISRA, J.] 14. As per our order dated 17.01.2017, the grievance against the 4th respondent in Writ Petition (Criminal) No. 132 of2016 shall be heard and dealt with after pronouncement of this judgment and hence, we shall n_ot delve into the contentions put forth in the said writ petition and the stand taken in the counter affidavit in that regard for the present. 15. The seminal issue that we are required to address is whether this Court, in exercise of power under Article 32 and Article 142 of the Constitution can direct transfer of an accused from one State to another and direct conducting of pending trials by way of video conferencing. Needless to emphasise the said advertence in law will also depend upon the factual scenario and satisfaction of the judicial conscience of this Court to take recourse to such a mode. The petitioners have asserted with regard to the criminal activities of the third respondent, the cases in which he has been roped in, the convictions he has faced, the sentences imposed upon him, the snails speed at which the trials are in progress because of the terror that reigns in Siwan, the declaration of the third respondent as a history-sheeter Type-A (who is beyond reform), the non-chalant attitude unabashedly and brazenly demonstrated by him that has unnerved and shaken the victims and the society at large, the impunity with which the collusion with the jail administration has taken place, the blatant intimidation of witnesses that weakens their sense of truth and justice; and mortal terror unleashed when they come to court, the audacious violation of the rules and regulations that are supposed to govern the convicts or under-trial prisoners inside the jail as if they have been made elegantly unperceivable and the confinement inside jail remains a word on paper, forthe third respondent, still is able to issue his command and writs from the jail, run a parallel administration and get involved with the crimes, at his own whim and fancy. The stand and stance put forth in the petitions and the arguments advanced by Mr. Shanti Bhushan and Mr. Dushyant Dave, sometimes one may be inclined to think, are in the realm ofrhetorics but the learned senior counsel for the petitioners and Mr. Kislay Pandey, submitted with enor>nous agony, and filed a chart to bolster their stand and submission. The Court had also asked Mr. P.S. Narasimha, and Mr. P.K. Dey, learned counsel appearing for the CBI to submit a chart. The chart showing the cases where either the respondent No. 3 has been convicted or acquitted or cases pending against him, has been filed. Without commenting on the merits, we think it aptto reproduce the Chart:- 961 A B c D E F G H 962 SUPREME COURT REPORTS [2017] I S.C.R. A "CONVICTION CASES SI. FlR P.S. case Under Status ofTrial Status Date of Period of No No Section conviction of Gra11 of Imprisonment ("'th appeal bail by · before grant B sentence)/ Distiict/Hi of bail Pending' Acqui gh Court ' ttal (in series) 1 Muffusil ps 147134113421 2Year - Bail 0 days Case No. 448/504IPC irrprisonment 28.J0.09 .. 181/98dt & 5000/- fine byHC c 18.09.98 Patna 2 C-2 34105 5061PC I year - Bail 3 yrs, 8 Dt. 07. 04.05 irrp1isonrnent 28.I0.09 In'.lnths, 8 andRs.1000 by Sp!. days fine Court 3 Muffusil PS 363/3651PC 3year - Bail ODays case6I;risonment 28.10.09 months21 no.41/05 Dt: byHC days 24.04.05 Patm Pachmhi ps 392/411 This case is -doCase no. !PC morged in 102104 Dt. Hussainganj 18.10.04 ps case no. 41/05 ACQUITTED CASES FIR P. S. Case No ... ./dated Under Section Siwan Town PS Case No. 30713231341134 !PC & 27 . 217/85 Dt. 02.09.85 Arms A~t Siwan Town Case No. 77/86 394 !PC dt: 08.04.86 Siwan Town PS case no. 79/86 399/402/411/412/4141216A Dt 10.04.86 !PC &25 A/26/35 Arms Act Muffasil PS case no. 228/86 147/148/1491325/302 !PC & 27 Arms Act 3/5 Explosive Act H ussainganj PS case no. 3.63/34 IPC 125/88, Dt. 12.09.88 . Siwan Town PS case . no. 307 !PC & 27 Arms Act 183/88 Dt: 10.09.88 . Siwan Town PS case no. 57/89 307/302/34 !PC & 3/4 Dt 15.03.89 Explosive Act Muffusil PS case 91 /89 I 3C7134 IPC & 2 7 Arms Act Mairwa (Jiradei) PS case no. I 14 71148/149/307 /348/302/34 137/89 dt: 21.11.89 IPC & 3/4 Explosive Act Siwan Town PS Case no. t47/14R/149/3241307 IPC & 27 108/94 /Dt: 22.05.