# AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS

- **Citation:** [2023] 2 S.C.R. 1090
- **Court:** Supreme Court of India
- **Decided:** 2023-03-17
- **Bench:** Surya Kant, J. K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/afjal-ali-sha-abjal-shaukat-sha-v-state-of-west-bengal-ors-36754
- **Pages:** 22

## Headnote

Code of Criminal Procedure, 1973 - ss. 321, 406 -
Constitution of India - Art. 139A - Supreme Court Rules, 2013 -
Or. 39 - Petitioner-brother of deceased sought transfer of the
criminal trial pending in West Bengal to Assam - Victim-deceased
was shot dead by unknown persons - Respondents-accused were
charged u/s. 302 r/w s.120B of the IPC and u/ss. 25 and 27 of the
Arms Act 1959 - Charge-sheet was filed - Trial commenced -
Respondent no.2 (main accused) was in the custody - During
pendency of trial, a notification issued by the State of West Bengal
directing the Public Prosecutor to apply u/s.321 of Cr.P.C. and
withdraw proceedings against respondents subject to consent of
trial Court - Notification challenged before the High Court -
Pursuant to the direction of the State, Public Prosecutor moved
application before the trial Court for withdrawal of the prosecution
case - This application was taken up by the Link Judge presiding
in the trial Court, despite case was listed for evidence - Link Judge
was informed regarding the challenge to the notification in the High
Court, regardless thereto, he heard the application and allowed the
same - Respondents were acquitted - De-facto complainant filed
writ petition before the Single Judge of the High Court, which set
aside the notification of the State directing withdrawal of the case -
Division Bench set aside the order and remanded the matter for
fresh adjudication - Single Judge held that order of the Link Judge
would not be acted upon and respondent no.2 was not be released
from custody - Meanwhile, trial proceeded - Petitioner filed
application to declare the de-facto complainant hostile - However,
the said application was rejected - Petitioner filed transfer petition
- Petitioner alleged multiple abnormalities during the trial, such as
change of Public Prosecutor four times and harassment meted out
to the prosecution witnesses and relatives of the deceased - Held:
[2023] 2 S.C.R. 1090
1090
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No legal necessity to transfer the trial outside the State of West
Bengal - More than 90 witnesses, most of them Bengali speaking
are yet to be examined - Transfer may cause serious impediment in
the deposition of those witnesses and some of them may be reluctant
to travel to a far away place - However, considering all facts and
circumstances, following directions issued: (i) FIR No.495/2019
registered transferred from the Court of Additional Session Judge,
3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of
Chief Judge, City Sessions Court at Calcutta; (ii) Trial to be
conducted by the Chief Judge, City Sessions Court and case not to
be transferred to Additional Sessions Judge; (iii) Trial to be taken
on weekly basis; (iv) State directed to appoint a Special Public
Prosecutor on the recommendations of the Chief Judge, City Sessions
Court with prior approval of the High Court; (v) Wife of deceased
and petitioner and other crucial prosecution witnesses to be provided
with adequate security; (vi) De-facto complainant to be cross
examined by the Special Public Prosecutor; (vii) Respondent no.2
or any other accused who are in custody to be transferred to Central
Jail at Calcutta; (viii) Respondent no.2 not to be enlarged on bail
till the conclusion of trial save and except by the High Court; (viii)
Portfolio Judge of the High Court to monitor and supervise the
trial proceedings.
Code of Criminal Procedure, 1973 - s. 406 - The power of
transfer under Section 406, CrPC is to be exercised sparingly and
only when justice is apparently in grave peril and therefore can be
allowed only in exceptional cases considering the fact that transfers
may cast unnecessary aspersions on the State Judiciary and the
prosecution agency - Further the convenience of parties and
witnesses as well as the language spoken by them are also relevant
factors when deciding a transfer petition.
Issuing directions, the Court
HELD: 1. Section 406(2) of the CrPC provides that the
Supreme Court may t

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SUPREME COURT REPORTS
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AFJAL ALI SHA @ ABJAL SHAUKAT SHA
v.
STATE OF WEST BENGAL & ORS.
(Transfer Petition (Criminal) No. 409 of 2021)
MARCH 17, 2023
[SURYA KANT AND J. K. MAHESHWARI, JJ.]
Code of Criminal Procedure, 1973 - ss. 321, 406 -
Constitution of India - Art. 139A - Supreme Court Rules, 2013 -
Or. 39 - Petitioner-brother of deceased sought transfer of the
criminal trial pending in West Bengal to Assam - Victim-deceased
was shot dead by unknown persons - Respondents-accused were
charged u/s. 302 r/w s.120B of the IPC and u/ss. 25 and 27 of the
Arms Act 1959 - Charge-sheet was filed - Trial commenced -
Respondent no.2 (main accused) was in the custody - During
pendency of trial, a notification issued by the State of West Bengal
directing the Public Prosecutor to apply u/s.321 of Cr.P.C. and
withdraw proceedings against respondents subject to consent of
trial Court - Notification challenged before the High Court -
Pursuant to the direction of the State, Public Prosecutor moved
application before the trial Court for withdrawal of the prosecution
case - This application was taken up by the Link Judge presiding
in the trial Court, despite case was listed for evidence - Link Judge
was informed regarding the challenge to the notification in the High
Court, regardless thereto, he heard the application and allowed the
same - Respondents were acquitted - De-facto complainant filed
writ petition before the Single Judge of the High Court, which set
aside the notification of the State directing withdrawal of the case -
Division Bench set aside the order and remanded the matter for
fresh adjudication - Single Judge held that order of the Link Judge
would not be acted upon and respondent no.2 was not be released
from custody - Meanwhile, trial proceeded - Petitioner filed
application to declare the de-facto complainant hostile - However,
the said application was rejected - Petitioner filed transfer petition
- Petitioner alleged multiple abnormalities during the trial, such as
change of Public Prosecutor four times and harassment meted out
to the prosecution witnesses and relatives of the deceased - Held:
[2023] 2 S.C.R. 1090
1090
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No legal necessity to transfer the trial outside the State of West
Bengal - More than 90 witnesses, most of them Bengali speaking
are yet to be examined - Transfer may cause serious impediment in
the deposition of those witnesses and some of them may be reluctant
to travel to a far away place - However, considering all facts and
circumstances, following directions issued: (i) FIR No.495/2019
registered transferred from the Court of Additional Session Judge,
3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of
Chief Judge, City Sessions Court at Calcutta; (ii) Trial to be
conducted by the Chief Judge, City Sessions Court and case not to
be transferred to Additional Sessions Judge; (iii) Trial to be taken
on weekly basis; (iv) State directed to appoint a Special Public
Prosecutor on the recommendations of the Chief Judge, City Sessions
Court with prior approval of the High Court; (v) Wife of deceased
and petitioner and other crucial prosecution witnesses to be provided
with adequate security; (vi) De-facto complainant to be cross
examined by the Special Public Prosecutor; (vii) Respondent no.2
or any other accused who are in custody to be transferred to Central
Jail at Calcutta; (viii) Respondent no.2 not to be enlarged on bail
till the conclusion of trial save and except by the High Court; (viii)
Portfolio Judge of the High Court to monitor and supervise the
trial proceedings.
Code of Criminal Procedure, 1973 - s. 406 - The power of
transfer under Section 406, CrPC is to be exercised sparingly and
only when justice is apparently in grave peril and therefore can be
allowed only in exceptional cases considering the fact that transfers
may cast unnecessary aspersions on the State Judiciary and the
prosecution agency - Further the convenience of parties and
witnesses as well as the language spoken by them are also relevant
factors when deciding a transfer petition.
Issuing directions, the Court
HELD: 1. Section 406(2) of the CrPC provides that the
Supreme Court may transfer a case "only on the application of
the Attorney -General of India or of a party interested".
Considering the apt and expansive interpretation of phrase 'party
interested' under Section 406(2) of the CrPC, it is held that the
Petitioner, being the real brother of the Deceased, is vitally
interested in a fair trial so that the Deceased and his family gets
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST
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justice. The Respondents' challenge to the locus standi of the
Petitioner is thus rejected. [Paras 22, 24][1106-B-C, G]
2. It has by now been well established that a well-founded
apprehension that justice will not be done is a prerequisite for
transfer of the case. Tracing the power of transfer of a case, we
are reminded of Lord Hewart's dictum in Rex v. Sussex Justices
stating that "It is not merely of some importance but is of fundamental
importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done". The right to a fair trial is a
fundamental right under Article 21 of the Constitution of India
and its importance cannot be emphasised enough. However, to
obtain the transfer of a case, the 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. The power of transfer under
Section 406, CrPC is to be exercised sparingly and only when
justice is apparently in grave peril. This Court has allowed
transfers only in exceptional cases considering the fact that
transfers may cast unnecessary aspersions on the State Judiciary
and the prosecution agency. [Paras 25, 26, 27][1107-A-E]
3. The convenience of parties and witnesses as well as the
language spoken by them are also relevant factors when deciding
a transfer petition, as has been noted by this Court in a catena of
judgments. In some of the recent decisions including in Neelam
Pandey v. Rahul Shukla, this Court has viewed that transfer of a
criminal case from one state to another implicitly reflects upon
credibility of not only the State Judiciary but also of the prosecution
agency. [Paras 31, 32][1109-C-D]
4. There is no legal necessity to transfer the trial outside
the State of West Bengal and the apprehensions of the Petitioner,
some of which are indeed genuine, can be effectively redressed
by issuing appropriate directions. We say so for the reason that
more than 90 witnesses, most of whom are Bengali speaking,
are yet to be examined. The transfer of trial to any other
neighbouring state will cause serious impediment in the
deposition of those witnesses and some of them might be reluctant
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to travel to a far away place and, thus, the case of the Prosecution
will be severely prejudiced. So long as the High Court and District
Judiciary are ensuring the fairness in trial proceedings within
their jurisdictional framework, we are not inclined to accept that
the victim's family will not get fair justice, if the trial is held in the
State of West Bengal. [Para 35][1110-D-F]
5. Considering all the facts and circumstances, this Court
deems it appropriate to dispose of this transfer petition in following
terms:- (i) 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; (ii) The trial shall be conducted by
the Chief Judge, City Sessions Court and he shall not entrust
the case to any other Additional Sessions Judge; (iii) The Chief
Judge, City Sessions Court shall endeavour to take up the trial
on a weekly basis and shall make an effort to conclude the same
within a period of six months; (iv) The State of West Bengal is
directed to appoint a Special Public Prosecutor on the
recommendations of the Chief Judge, City Sessions Court,
Calcutta with the prior approval of the High Court. This exercise
shall be completed within two weeks; (v) The wife of the
Deceased, the Petitioner and other crucial prosecution witnesses
shall be provided adequate security. The State of West Bengal is
directed to ensure that no harm is caused to the life and liberty of
the 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; (vi) The
De-facto Complainant who is also stated to be the eyewitness
and has allegedly resiled from his version recorded during the
examination-in-chief, shall be subjected to cross-examination by
the Special Public Prosecutor, for which the advocate engaged
by the Petitioner may provide assistance to the learned Special
Public Prosecutor; (vii) Respondent No. 2 or any other accused
who are in custody shall be transferred forthwith to the Central
Jail at Calcutta; (viii) Respondent No. 2, having regard to his
criminal antecedents, as well as other accused who are in custody,
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shall not be enlarged on bail till the conclusion of trial save and
except by the High Court; (ix) The Learned Portfolio Judge of
the Calcutta High Court is requested to regularly monitor and
supervise the trial proceedings in terms of the directions issued
hereinabove. [Para 36][1110-G-H; 1111-A-G]
K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86
: [2015] 7 SCR 355; Amarinder Singh v. Parkash Singh
Badal (2009) 6 SCC 260 : [2009] 9 SCR 194; Nahar
Singh Yadav v. Union of India (2011) 1 SCC 307 :
[2010] 13 SCR 851 - relied on.
Surendra Pratap Singh v. State of Uttar Pradesh (2010)
9 SCC 475 : [2010] 11 SCR 909; Abdul Nazar Madani
v. State of Tamil Nadu (2000) 6 SCC 204 : [2000] 3
SCR 1028; Sri Jayendra Saraswathy Swamigal (II) v.
State of T. N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR
556; Harita Sunil Parab v. State (NCT of Delhi) (2018)
6 SCC 358 : [2018] 3 SCR 732; Swaati Nirkhi v. State
(NCT of Delhi) 2021 SCC Online SC 202; Gurcharan
Dass Chadha v. State of Rajasthan [1966] 2 SCR 678;
Ashish Chandra v. Asha Kumari (2012) 1 SCC 680 :
[2011] 13 SCR 417; K. Anbazhagan v. Superintendent
of Police (2004) 3 SCC 767 : [2003] 5 Suppl. SCR
610; Zahira Habibullah Sheikh v. State of Gujarat
(2006) 3 SCC 374 : [2006] 2 SCR 1081; Maneka
Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 :
[1979] 2 SCR 378; R. Balakrishna Pillai v. State of
Kerala (2000) 7 SCC 129 : [2000] 3 Suppl. SCR 26;
Neelam Pandey v. Rahul Shukla Transfer Petition (Crl)
No. 298 of 2020, 22 February 2023 - referred to.
Rex v. Sussex Justices [1924] 1 KB 256 - referred to.
Case Law Reference
[2010] 11 SCR 909
referred to
Para 17 (ix)
[2015] 7 SCR 355
relied on
Para 17 (ix)
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[2000] 3 SCR 1028
referred to
Para 19 (vii), 31
[2005] 4 Suppl. SCR 556
referred to
Para 19 (vii), 31
[2018] 3 SCR 732
referred to
Para 19 (vii), 31
[2010] 13 SCR 851
relied on
Para 19 (viii), 27 & 29
[1966] 2 SCR 678
referred to
Para 19 (viii)
[2009] 9 SCR 194
relied on
Para 19 (viii), 26 & 28
[2011] 13 SCR 417
referred to
Para 19 (ix)
[2003] 5 Suppl. SCR 610
referred to
Para 23
[2006] 2 SCR 1081
referred to
Para 26
[1979] 2 SCR 378
referred to
Para 26
[2000] 3 Suppl. SCR 26
referred to
Para 26, 30
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No. 409 of 2021.
Petition Seeking Transfer of Case Bearing S.T.No.1 (03) of 2020,
pending in A.S.J. 3rd at Tamluk, Purba Medinipur, West Bengal to
Competent Kamrup District Court in Assam.
P. S. Patwalia, Sr. Adv., Nirnimesh Dube, Ms. Bansuri Swaraj,
Siddhesh Kotwal, Ms. Ana Upadhyay, Ms. Manya Hasija, Akash Singh,
Nihar Dharmadhikari, Ms. Sampriti Baksi, Advs. for the Petitioner.
Kapil Sibal, Neeraj Kishan Kaul, V Giri, Sr. Advs., Ravinder Singh,
Nipun Saxena, Srisatya Mohanty, Raveesha Gupta, Sanjeev Kaushik,
Ms. Mantika Haryani, Ms. Aparajita Jamwal, Himanshu Chakravarty,
Devvrat Singh, Ms. Muskan Surana, Ms. Somya Saxena, Archit Adlakha,
Ms. Astha Sharma, Rohit Agarwal, Goutam Dey, Partha Sil, Tavish
Bhushan Prasad, Ms. Sayani Bhattacharya, Arjun Ranganathan, Devesh
Mishra, Pallak Bhagat, Ms. Reshmi Rea Sinha, Abhishek Sarkar, Mani
Bhushan Sinha, Pranab Prakash, Soumya Dutta, Siddhant Upmanyu,
Advs. for the Respondents.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST
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The Judgment of the Court was delivered by
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
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 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
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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. 211 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 specific notification was
issued on February 26, 2021, apparently communicating a
direction of the Governor to instruct the concerned Public
Prosecutor to withdraw the case-in-question subject to the
consent of the Sessions Court. However, not an iota of reason
and/or how such withdrawal would advance the cause of
justice and public interest has been indicated in the said order.
That apart, the modus operandi in the present case is rather
transparent since the Public Prosecutor actually acted on such
instruction and made an application pursuant to the order of
the State Government and, despite having knowledge of this
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Court being in seisin of the present writ petition, the concerned
Sessions Judge has granted consent for such withdrawal,
which has the effect of acquitting the accused persons.
It is evident from the stand of the State taken on all
previous occasions when bail was rejected, that the State
vehemently opposed even the grant of bail to the accused.
Hence, it defies logic completely as to what prompted the
Government to instruct the Public Prosecutor-in- question to
withdraw the case against the accused persons all of a
sudden.
Despite the self-imposed restraint which this court
imposes upon itself in the exercise of jurisdiction under Article
226 of the Constitution of India, such restraint cannot be a
fetter to the court exercising such jurisdiction for the ends of
justice where manifest abuse of the process of law has taken
place. If the writ court shuts its eyes to the perpetration of
mala fide and arbitrary administrative action, it would be
failing in its incumbent duty of judicial review conferred by
the Constitution of India.
In the present case, in view of the arbitrary and
unreasoned nature of the instructions of the State to the Public
Prosecutor dated February 26, 2021, pursuant to which the
Public Prosecutor acted and even the Sessions Court granted
consent to such withdrawal, the said instruction as well as the
effects thereof have to be set aside."
9. The High Court observed that none of the parameters to invoke
jurisdiction under Section 321 of CrPC were applied either by the Public
Prosecutor or by the State and resultantly, it was held that the exercise
was bad in law and that the mala fides of the State was evident from its
contradictory stand wherein it previously opposed the bail applications
but now was seeking to withdraw the prosecution itself. Accordingly,
the High Court directed that any action taken in the meantime, pursuant
to the State Government's notification dated 26.02.2021, including the
order allowing withdrawal of the case was liable to be set aside. It ordered
accordingly.
10. The De-facto Complainant thereafter submitted an affidavit
before the Trial Court expressing his 'no-objection' to the grant of bail to
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Respondent No. 2. Meanwhile, Respondent No. 2 appealed against the
order of the learned Single Judge before a Division Bench, inter alia,
on the ground of violation of the principles of audi alteram partem. The
Division Bench set aside the order on this ground and remanded the
matter for fresh adjudication. It must be noted that the Petitioner herein
had also filed an application for impleadment in the proceedings before
the Division Bench but the same was closed with liberty to renew the
prayer before the Single Judge.
11. On remand, the learned Single Judge first considered the prayer
of the De-facto Complainant for withdrawal of the writ petition and also
the application of the Petitioner herein to be impleaded as a party. The
learned Single Judge, vide an interim order in the second round of
proceedings, noted firstly that the Petitioner is the brother of the
Deceased and has the locus to file a fresh writ petition and secondly, in
view of the alleged threat to life & liberty of the De-facto Complainant,
his name was deleted and the Petitioner was transposed as the writ
petitioner. The Single Judge observed that the withdrawal of the writ
petition at that stage would frustrate the order of the learned Division
Bench as well as the ends of justice. It was, thus, again directed that the
order of the Link Judge would not be acted upon and Respondent No. 2
shall not be released from custody, without an order of the competent
court. This order was later, upheld by the Division Bench in appeal.
12. Meanwhile the trial proceeded but during his cross-examination,
the De-facto Complainant is stated to have resiled from the statement
made during examination-in-chief but nevertheless he was not declared
hostile by the Public Prosecutor. Thereafter, the Petitioner filed an
application before the Trial Court to declare the De-facto Complainant
hostile and to allow the Petitioner's lawyer to cross-examine him. The
Trial Court considered the said application and noted that the De-facto
Complainant had "made some statements in his cross examination,
which are not in conformity with the version of his examination-inchief". The Petitioner's application was however, rejected after
appreciation of the statutory provisions and the case law. The Trial Court
held as follows:
"In view of the discussions made in the foregoing
paragraphs, I am of the opinion that the prosecution should
be given a fair chance to unearth the true facts, and an
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opportunity shall be given to the Ld. Spl. P.P. to cross examine
PW1 after declaring him hostile.
Hence, the Ld. Spl. P.P., and not the Ld. Advocate
appointed by this instant petitioner, shall be given permission
to cross-examine PW1. The Ld. Advocate appointed by the
petitioner Afjal Ali Sha can only be permitted to act under the
direction of Ld. Public Prosecutor in view of Sec 301(2) of
CrP.C."
13. Meanwhile, the instant Transfer Petition was filed in which
this Court vide order dated 05.10.2021 directed stay on further
proceedings in the trial.
14. Thereafter, the learned Single Judge of the High Court, on
02.08.2022, finally decided the writ petition and set aside the Government's
notification dated 26.02.2021. It was observed that "The attending
circumstances of the present case do not inspire much confidence
in the bona fides of the State and PP behind the withdrawal". The
Court viewed that: -
"When the charges were initially levelled, the State itself
wished Godspeed to the prosecution, which is reflected from
the pace at which investigation was concluded and trial
commenced. Yet, when the respondent no. 5 allegedly leaned
in favour of the ruling party of the State, the prosecution beat
a hasty retreat by seeking to withdraw the prosecution, which
would have the effect of the accused being discharged scotfree without trial."
It was also noted that on the one hand, the State was defending
the withdrawal of Prosecution and on the other, was expediting the trial
wherein several witnesses were resiling from their statements. In light
of these circumstances, all action taken in pursuance of the notification
dated 26.02.2021, including the application and Trial Court's order under
Section 321, CrPC was set aside. The said order appears to not have
been challenged and has attained finality.
15. The Petitioner has further alleged that multiple abnormalities
have occurred during the pendency of the trial, such as the change of
the Public Prosecutor four times and the harassment meted out to the
prosecution witnesses and relatives of the Deceased. The wife of the
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Deceased, Saida Sabana Banu Khatun, is alleged to have been attacked
by Respondent No. 2's henchmen and relatives of the other accused
persons in the premises of the Trial Court. One witness, named Imran
Ali, was allegedly abducted by associates of Respondent No. 2 who
also threatened to kill him. The Petitioner has contended that his security
cover was withdrawn. It is also averred that the authorities were duly
informed of such instances but no appropriate action has been taken.
The Petitioner also states that false cases, including one alleging rape,
have been fastened on him, in an effort to threaten the witnesses and
influence them to depose in favour of the accused persons.
16. It is in this factual backdrop that this transfer petition has been
filed.
B. SUBMISSIONS
17. Mr. P.S. Patwalia, learned senior counsel for the Petitioner
has raised the following contentions seeking transfer of the trial outside
the State of West Bengal:
(i)
The conduct of the State, which was vigorously opposing
the bail applications of Respondent No. 2 in the past, has
dramatically changed and is now detrimental to the
Prosecution's case;
(ii)
Respondent No. 2 has at least thirty-four (34) criminal cases
registered against him and yet, the State directed withdrawal
from prosecution without any cogent reason. The power
under Section 321, CrPC was blatantly misused;
(iii)
The De-facto Complainant has been gained over during
the trial as is evident from his no-objection to the grant of
bail to Respondent No. 2; his prayer to withdraw the writ
petition challenging the State's notification under Section
321, CrPC and the De-facto Complainant turning hostile
during his cross-examination;
(iv)
The witnesses are being threatened and are turning hostile
in their cross examination. False cases have been instituted
against crucial witnesses to browbeat them;
(v)
There is a serious threat to the life and liberty of the
witnesses and they may be influenced due to the lack of a
safe environment to truthfully depose before the court.
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Reliance has been placed on certain observations of the
Calcutta High Court regarding the mala fides of the State;
(vi)
It is alleged that on a previous occasion, when the High
Court directed to shift Respondent No. 2 from Purba
Medinipur to a hospital in Kolkata for medical treatment,
the same was not done. Rather, he was kept in the hospital
at Purba Medinipur where he had access to luxurious
facilities;
(vii)
Reliance has been placed on the High Court's observations
while rejecting Respondent No. 2's bail application to the
effect that:
"The aforesaid narration of events clearly discloses a
prevaricating stance on the part of the State of West Bengal.
While on one hand, the State proceeded to bury the prosecution
by resorting to its withdrawal under Section 321 Cr.P.C., on
the other hand it purported to continue the prosecution against
the petitioner and other accused persons by examining
witnesses.
...
Be that as it may, it is relevant to note in the prosecution
conducted by the State, most of the witnesses have resiled
from their earlier statements to police and have turned hostile.
It is also pertinent to bear in mind even the informant Jahar
Sha, the original writ petitioner in WPA 6315 of 2021
expressed apprehension and was unwilling to proceed with
the said proceeding challenging withdrawal of prosecution.
These circumstances give rise to a serious apprehension in
the mind of this Court as to the overwhelming and malevolent
influence on the witnesses as well as the informant which
had prompted them from either withdrawing from the writ
petition or resiling from their earlier statements before police
during deposition in Court."
(viii) In these circumstances, there is a genuine apprehension in
the mind of the Petitioner, brother of the Deceased, that
they would not receive free and fair justice in the State of
West Bengal as the prosecution is compromised;
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(ix)
Reliance has been placed on Surendra Pratap Singh v.
State of Uttar Pradesh1 to urge that in similar facts and
circumstances, the trial was transferred from the State of
Uttar Pradesh to the State of Madhya Pradesh, in order to
do fair justice to all the parties. The judgment in K.
Anbazhagan v. State of Karnataka2 has also been cited
to iterate that once a case stands transferred from one state
to another, the transferee state has full control over the
prosecution and becomes the prosecuting State. It is the
Petitioner's contention that once the prosecuting state
changes, the trial can be completed in a fair and just manner.
18. During the course of hearing, Mr. Patwalia clarified that it is
not necessary to transfer the trial to the State of Assam and this Court
may consider the desirability of transferring it to any other neighbouring
States, like Orissa or Jharkhand.
19. Opposing the transfer, Mr. Kapil Sibal and Mr. Neeraj Kishan
Kaul, learned senior counsels on behalf of Respondent No. 1- State of
West Bengal and Mr. V. Giri, learned senior counsel on behalf of
Respondent No. 2, contended that the facts as revealed do not make out
a case for transfer of the trial outside the State of West Bengal. At the
outset, they have challenged the locus of the Petitioner to file this transfer
petition, contending that the Petitioner is not the complainant and is only
a witness in the trial. They have made the following submissions:
(i)
The Deceased's wife did not approach the state police about
the alleged attack on her in the Trial Court premises on
02.03.2021 and the Petitioner's security arrangement was
never withdrawn by the State. The police took prompt action
in the matter of abduction of witness Imran Ali as the
accused persons & the victims were swiftly located and
chargesheet has been filed in the case;
(ii)
The veracity of the media reports relied upon by the
Petitioner to show that Respondent No. 2 has access to
facilities, such as smartphone, headphones etc. are not
based upon correct facts;
1 Surendra Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475.
2 K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86.
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(iii)
The Public Prosecutor gave detailed reasons in his
withdrawal application before the Trial Court in compliance
with Section 321 of CrPC;
(iv)
The requirements under Section 406, CrPC are not met in
this case as no reasonable apprehension that justice will
not be done, is made out.
(v)
There is no allegation or whisper of bias in the State Judiciary
as is evident from the fact that the accused persons' bail
applications have constantly been rejected by the Trial Court
and such rejection has been upheld in the High Court. The
High Court has acted as a robust supervisory mechanism
to oversee the trial proceedings and check any lapses
occurring therein;
(vi)
There are no allegations of unfair investigation and the only
Trial Court order found fault with was the order passed by
the Link Judge allowing the application for withdrawal of
prosecution;
(vii)
There are 107 Prosecution witnesses in the trial out of which
80 witnesses reside in Purba Medinipur district where the
trial is going on. Till the trial was stayed by this Court, the
Trial Court had examined 11 witnesses. Most witnesses
are stated to be Bengali speaking. In light of these
circumstances, it is stated that the transfer of the case to a
court outside the State of West Bengal will cause extreme
inconvenience to the Prosecution & most witnesses. The
judgment in Abdul Nazar Madani v. State of Tamil Nadu3
wherein this Court considered the convenience of the
Prosecution, other accused persons, the witnesses and the
larger interest of society while deciding a transfer petition,
has been pressed into aid. Other cases have also similarly
been cited4;
(viii) Reliance has been placed on Nahar Singh Yadav v. Union
of India5 wherein this Court noted that the power under
3 Abdul Nazar Madani v. State of Tamil Nadu (2000) 6 SCC 204.
4 Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita
Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358; Swaati Nirkhi v. State (NCT
of Delhi) 2021 SCC Online SC 202.
5 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.
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Section 406, CrPC is to be exercised sparingly and that
transfer should be allowed only when there is a wellsubstantiated apprehension that justice will not be dispensed
impartially. Other similar decisions have also been brought
to our notice6;
(ix)
Ashish Chandra v. Asha Kumari7 has been cited to refer
the observations of this Court that transfer of cases have a
demoralizing effect on trial courts.
(x)
The Deceased was and the Petitioner is a politically
influential person and transfer of the proceedings is sought
to a jurisdiction where he will be able to exert his political
influence. The Deceased himself is stated to have had
multiple criminal cases pending against him;
(xi)
There is nothing on record to show that witnesses have
been threatened. Respondent no. 2, being in custody, cannot
exert any threat or pressure on the witnesses;
(xii)
The Petitioner has delayed the trial through these
proceedings and the accused persons have been in custody
for over three years. As such, it is contended that prejudice
has been caused to the accused persons and they shall incur
heavy expenses to defend themselves if the case were to
be transferred outside the State of West Bengal;
(xiii) To ensure a fair trial, this Court may transfer the case
anywhere in the state and appoint a Public Prosecutor while
protecting the accused persons and the complainant.
20. All other Respondents have supported this stance and made
similar averments.
C. ANALYSIS
21. We have carefully considered the submissions made by the
parties and perused the record. Before adverting to the contentious issue,
we deem it appropriate to discuss the settled principles in relation to the
exercise of power to transfer cases under Section 406, CrPC as well as
6 Gurcharan Dass Chadha v. State of Rajasthan (1966) 2 SCR 678; Amarinder Singh
v. Parkash Singh Badal (2009) 6 SCC 260.
7 Ashish Chandra v. Asha Kumari, (2012) 1 SCC 680
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the preliminary objection raised by the respondents on the locus standi
of the petitioner in seeking transfer of the subject trial.
C.1. LOCUS STANDI OF THE PETITIONER
22. Section 406(2) of the CrPC provides that the Supreme Court
may transfer a case "only on the application of the Attorney-General of
India or of a party interested".
23. In the case of K. Anbazhagan v. Superintendent of Police8,
this Court discussed the meaning of expression "a party interested" under
Section 406, CrPC and held as follows:
"The words "party interested" are of a wide import and,
therefore, they have to be given a wider meaning. If it was
the intendment of the legislature to give restricted meaning
then it would have used words to the effect "party to the
proceedings". In this behalf the wording of Article 139-A of
the Constitution of India may be looked at. Under Article 139A the transfer can be if "the Supreme Court is satisfied on its
own motion or on an application made by the Attorney General
of India or by a party to any such case". (emphasis supplied)
Also if the provisions of Chapter XXIX of the Criminal
Procedure Code are looked at, it is seen that when the
legislature intended a "party to the proceedings" to have a
right of appeal it specifically so stated. The legislature,
therefore, keeping in view the larger public interest involved
in a criminal justice system, purposely used words of a wider
import in Section 406. Also, it is a well-settled principle of
law that statutes must be interpreted to advance the cause of
statute and not to defeat it."
24. Considering this apt and expansive interpretation of phrase
'party interested' under Section 406(2) of the CrPC, we hold that the
Petitioner, being the real brother of the Deceased, is vitally interested in
a fair trial so that the Deceased and his family gets justice. The
Respondents' challenge to the locus standi of the Petitioner is thus
rejected.
8 K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767.
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C.2. GROUNDS FOR TRANSFER
25. Coming to the second limb of the contentions raised on behalf
of the parties, we may firstly notice some of the well-defined contours in
relation thereto. It has by now been well established that a well-founded
apprehension that justice will not be done is a prerequisite for transfer of
the case. Tracing the power of transfer of a case, we are reminded of
Lord Hewart's dictum in Rex v. Sussex Justices9 stating that "It is not
merely of some importance but is of fundamental importance that
justice should not only be done, but should manifestly and
undoubtedly be seen to be done".
26. The right to a fair trial is a fundamental right under Article 21
of the Constitution of India10 and its importance cannot be emphasised
enough. However, to obtain the transfer of a case, the 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.11
27. The power of transfer under Section 406, CrPC is to be
exercised sparingly and only when justice is apparently in grave peril.
This Court has allowed transfers only in exceptional cases considering
the fact that transfers may cast unnecessary aspersions on the State
Judiciary and the prosecution agency.12 Thus, over the years, this Court
has laid down certain guidelines and situations wherein such power can
be justiciably invoked.
28. In Amarinder Singh v. Parkash Singh Badal13, this Court
observed as follows:
"19. Assurance of a fair trial is the first imperative of
the dispensation of justice. The purpose of the criminal trial
is to dispense fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that the public
confidence in the fairness of a trial would be seriously
9 Rex v. Sussex Justices [1924] 1 KB 256.
10 Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374;
Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167; R. Balakrishna Pillai
v. State of Kerala (2000) 7 SCC 129.
11 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260.
12 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307; Neelam Pandey v. Rahul
Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 February 2023].
13 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260.
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undermined, the aggrieved party can seek the transfer of a
case within the State under Section 407 and anywhere in the
country under Section 406 CrPC."
29. In Nahar Singh Yadav v. Union of India14 after analysing
the case-law, this Court enumerated the basic principles of the power of
transfer under Section 406, CrPC as follows:
"29.