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: 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 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 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, 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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