In TRANSFER PETITION (CRIMINAL) No.409 of 2021-SC- Power of transfer u/s 406 CrPC is to be exercised sparingly and only when justice is apparently in grave peril: Supreme Court
Justices Surya Kant & J.K. Maheshwari [17-03-2023]

Read Judgment: Afjal Ali Sha @ Abjal Shaukat Sha v. State of West Bengal & Ors 

Tulip Kanth

New Delhi, April 8, 2023: While ordering the transfer of a criminal trial from the Court of Tamluk Additional Sessions Judge to the City Sessions Court at Calcutta, the Supreme Court has observed that the procedure followed in the case was completely alien to the scheme of Section 321 CrPC as the decision to withdraw prosecution was taken at the level of the State Government and the Public Prosecutor was merely asked to act upon the Government notification.

Referring to the judgments in Nahar Singh Yadav v. Union of India & Amarinder Singh v. Parkash Singh Badal, the Division Bench of Justice Surya Kant and Justice J.K. Maheshwari said, “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.”

The factual matrix of this case was such that on the date of incident, the Deceased was 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 and, under Sections 25 and 27 of the Arms Act, 1959 against the second Respondent at the behest of the de-facto Complainant.

After investigation, the police authorities concluded that nine Respondents were also involved in the offence, along with the second Respondent. Accordingly, charges were framed under Sections 302 read with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959.

The transfer petition, before the Top Court, had been preferred under Section 406 of the Code of Criminal Procedure, 1973 ( CrPC), r/w Article 139A of the Constitution and Order 39 of the Supreme Court Rules, 2013 by the brother of the Deceased seeking transfer of the criminal trial pending in the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal (Trial Court), to a competent court in the State of Assam, primarily on the ground that a fair trial would not be possible in the State of West Bengal.

The Petitioner had alleged that multiple abnormalities 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 Petitioner also stated that false cases, including one alleging rape, had been fastened on him, in an effort to threaten the witnesses and influence them to depose in favour of the accused persons.

On the legal aspect of transfer,the Bench referred to Section 406(2) of the CrPC which provides that the Supreme Court may transfer a case only on the application of the Attorney-General of India or of a party interested.The Bench further referred to the judgments in K. Anbazhagan v. Superintendent of Police, and stated, “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.”

Not only this but emphasizing that the right to a fair trial is a fundamental right under Article 21 of the Constitution, the Bench placed reliance upon the judgments of the Top Court in Zahira Habibullah Sheikh v. State of Gujarat,  Maneka Sanjay Gandhi v. Rani Jethmalani, R. Balakrishna Pillai v. State of Kerala & Amarinder Singh v. Parkash Singh Badal. 

The Bench also took note of the fact that 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.

On the facts of the case, the Bench noticed that the State of West Bengal had taken a complete u-turn with a view to help the main accused and it went to the extent of resorting to its powers under Section 321 of CrPC to withdraw the prosecution itself.

“A plain reading of Section 321, CrPC leaves no room to doubt that it is the Public Prosecutor in-charge of the case who has to apply his mind independently and impartially to form a view for withdrawal from the prosecution with the consent of the court”, the Bench said while clarifying that the procedure followed in the case in hand was completely alien to the scheme of Section 321 of CrPC. However, the Bench opined that none of these patent illegalities were allowed to sustain as a result of the pro-active exercise of appellate/revisional/writ jurisdiction by the High Court. 

Referring to the Notification directing the Public Prosecutor to apply under Section 321 of CrPC and withdraw the criminal proceedings against the accused-Respondents subject to the consent of the Trial Court, the Bench further held, “Not only was the State Governments notification set aside, the order passed by the Link Judge permitting such withdrawal was also annulled by the High Court. It is a matter of record that the learned Trial Judge has repeatedly declined bail to Respondent No. 2 and even the High Court rejected his prayer for enlargement on bail”, 

As per the Bench, there was no legal necessity to transfer the trial outside the State of West Bengal as more than 90 witnesses, most of whom are Bengali speaking, were yet to be examined and so the transfer of trial to any other neighbouring state would cause serious impediment in the deposition of those witnesses .

“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 victims family will not get fair justice, if the trial is held in the State of West Bengal”, the Bench held while ordering that Criminal Trial 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.

The Bench disposed of the petition by further directing, “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."