Date of the Judgment: 17 March 2023
Citation: [Not Available in Source]
Judges: Surya Kant, J. and J.K. Maheshwari, J.
Can a criminal trial be transferred to ensure a fair trial when there are serious concerns about witness intimidation and the impartiality of the prosecution? The Supreme Court of India addressed this critical question in a case where the prosecution seemed to be compromised. The Court transferred the trial from a local court to the City Sessions Court at Calcutta, to ensure a fair trial, while also issuing directions for witness protection and appointment of a special public prosecutor. This judgment was authored by Justice Surya Kant.
Case Background
The case revolves around the murder of Kurban Sha, who was allegedly shot on October 7, 2019, while working at a political party office. Following the incident, an FIR was lodged against Respondent No. 2, and later, Respondents No. 3 to 11 were also implicated. The chargesheet included 107 witnesses, including the De-facto Complainant (the deceased’s nephew) and the Petitioner (the deceased’s brother), Afjal Ali Sha. The trial commenced in September 2020, with Respondent No. 2 remaining in custody due to repeated rejections of his bail applications.
Timeline
| Date | Event |
|---|---|
| 07.10.2019 | Kurban Sha was shot and killed. |
| 08.10.2019 | FIR No. 495/2019 was lodged under Section 302 read with Section 120B of the Indian Penal Code, 1860 and Sections 25 and 27 of the Arms Act, 1959. |
| September 2020 | Trial commenced. |
| 26.02.2021 | The Legal Remembrancer & Ex-Officio Secretary to the Government of West Bengal issued a notification to withdraw criminal proceedings against Respondent Nos. 2 to 11. |
| 01.03.2021 | A newly appointed Public Prosecutor moved an application for withdrawal of the prosecution case. |
| 02.03.2021 | A Link Judge allowed the Prosecution to withdraw the case, acquitting Respondent Nos. 2-11. |
| 02.03.2021 (Afternoon) | Calcutta High Court took up the writ petition filed by the De-facto Complainant against the withdrawal of the case. |
| 05.10.2021 | Supreme Court directed stay on further proceedings in the trial. |
| 02.08.2022 | The Single Judge of the High Court set aside the Government’s notification dated 26.02.2021. |
| 17.03.2023 | Supreme Court disposed of the transfer petition. |
Course of Proceedings
During the trial, the Legal Remembrancer & Ex-Officio Secretary to the Government of West Bengal issued a notification on 26.02.2021, directing the Public Prosecutor to withdraw the criminal proceedings against the accused, subject to the Trial Court’s consent. A new Public Prosecutor then applied for withdrawal, stating the case was politically motivated. A Link Judge allowed the withdrawal on March 2, 2021, acquitting the accused, despite a pending challenge at the Calcutta High Court. The High Court, however, set aside the withdrawal order, citing a lack of proper reasoning and mala fides on the part of the State. Subsequently, the De-facto Complainant expressed no objection to bail for Respondent No. 2, and later resiled from his initial statement during cross-examination. The Petitioner’s application to declare the De-facto Complainant hostile was rejected by the Trial Court. The High Court again intervened, directing that the order of the Link Judge would not be acted upon and Respondent No. 2 shall not be released from custody. The Supreme Court eventually stayed the trial proceedings.
Legal Framework
The judgment refers to the following legal provisions:
- Section 406 of the Code of Criminal Procedure, 1973 (CrPC): This section empowers the Supreme Court to transfer cases from one High Court to another or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.
- Article 139A of the Constitution of India: This article allows the Supreme Court to transfer cases if it is satisfied that such transfer is necessary for the ends of justice.
- Section 302 of the Indian Penal Code, 1860 (IPC): This section defines the punishment for murder.
- Section 120B of the Indian Penal Code, 1860 (IPC): This section defines the punishment for criminal conspiracy.
- Sections 25 and 27 of the Arms Act, 1959: These sections deal with the penalties for possessing and using illegal arms.
- Section 321 of the Code of Criminal Procedure, 1973 (CrPC): This section allows a Public Prosecutor to withdraw from the prosecution of a case with the consent of the Court.
Arguments
Petitioner’s Arguments:
- The State’s stance dramatically changed, now detrimental to the prosecution.
- Respondent No. 2 has 34 criminal cases, yet the State sought withdrawal without reason, misusing Section 321 of CrPC.
- The De-facto Complainant was gained over, evident from his no-objection to bail, withdrawal of the writ petition, and turning hostile.
- Witnesses are threatened and turning hostile, with false cases instituted against crucial witnesses.
- There is a serious threat to the life and liberty of witnesses, preventing truthful deposition.
- Respondent No. 2 was not shifted to a Kolkata hospital as directed by the High Court, instead, he had access to luxurious facilities at the Purba Medinipur hospital.
- The High Court noted the prevaricating stance of the State and the overwhelming influence on witnesses.
- The Petitioner has a genuine apprehension of not receiving fair justice in West Bengal due to a compromised prosecution.
- Reliance was placed on Surendra Pratap Singh v. State of Uttar Pradesh [ (2010) 9 SCC 475] and K. Anbazhagan v. State of Karnataka [(2015) 6 SCC 86] to argue for the transfer of the trial and change of the prosecuting state.
Respondents’ Arguments:
- The Petitioner lacks locus standi as he is not the complainant but a witness.
- The Deceased’s wife did not report any attack, and the Petitioner’s security was not withdrawn. The police acted promptly in the abduction case of Imran Ali.
- Media reports about Respondent No. 2’s access to facilities are not correct.
- The Public Prosecutor provided detailed reasons for withdrawal under Section 321 of CrPC.
- The requirements of Section 406 of CrPC are not met, as there is no reasonable apprehension of injustice.
- There is no bias in the State Judiciary, evidenced by the rejection of bail applications.
- There are no allegations of unfair investigation, except for the order passed by the Link Judge.
- Transfer would inconvenience 107 witnesses, 80 of whom reside in Purba Medinipur and are Bengali speaking. Reliance was placed on Abdul Nazar Madani v. State of Tamil Nadu [(2000) 6 SCC 204].
- The power under Section 406 of CrPC should be used sparingly. Reliance was placed on Nahar Singh Yadav v. Union of India [(2011) 1 SCC 307] and Ashish Chandra v. Asha Kumari [(2012) 1 SCC 680].
- The Deceased and the Petitioner are politically influential, and transfer is sought for exerting political influence.
- There is no evidence of witness intimidation, and Respondent No. 2 is in custody.
- The Petitioner has delayed the trial, and transfer would prejudice the accused.
- To ensure a fair trial, the case may be transferred anywhere within the state with a new Public Prosecutor.
| Main Submissions | Petitioner’s Sub-Submissions | Respondent’s Sub-Submissions |
|---|---|---|
| Locus Standi | The Petitioner, being the brother of the deceased, is vitally interested in a fair trial. | The Petitioner is not the complainant and is only a witness. |
| State’s Conduct | The State’s stance changed dramatically, now detrimental to the prosecution. | The State has not acted unfairly, and the judiciary has been robust in overseeing the trial. |
| Misuse of Section 321 CrPC | The State sought withdrawal without reason, misusing Section 321 of CrPC. | The Public Prosecutor provided detailed reasons for withdrawal under Section 321 of CrPC. |
| Witness Intimidation | Witnesses are threatened and turning hostile, with false cases instituted against crucial witnesses. | There is no evidence of witness intimidation, and Respondent No. 2 is in custody. |
| Fair Trial Apprehension | The Petitioner has a genuine apprehension of not receiving fair justice in West Bengal due to a compromised prosecution. | There is no reasonable apprehension of injustice, and the judiciary is impartial. |
| Convenience of Trial | Transfer of the trial is necessary for a fair trial. | Transfer would inconvenience 107 witnesses, most of whom are Bengali speaking. |
Issues Framed by the Supreme Court
The primary issue before the Supreme Court was whether the criminal trial should be transferred outside the State of West Bengal to ensure a fair trial.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether the criminal trial should be transferred outside the State of West Bengal? | The trial was 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. | To ensure fair trial and address the apprehensions of the Petitioner. |
Authorities
The Court considered the following authorities:
| Authority | Court | How it was used |
|---|---|---|
| Surendra Pratap Singh v. State of Uttar Pradesh [(2010) 9 SCC 475] | Supreme Court of India | Cited by the Petitioner to argue that in similar circumstances, the trial was transferred to ensure fair justice. |
| K. Anbazhagan v. State of Karnataka [(2015) 6 SCC 86] | Supreme Court of India | Cited by the Petitioner to iterate that once a case is transferred, the transferee state has full control over the prosecution. |
| K. Anbazhagan v. Superintendent of Police [(2004) 3 SCC 767] | Supreme Court of India | Discussed the meaning of “a party interested” under Section 406, CrPC, holding that the words are of wide import. |
| Rex v. Sussex Justices [1924] 1 KB 256 | King’s Bench Division | Cited to emphasize that justice must not only be done but must also be seen to be done. |
| Zahira Habibullah Sheikh v. State of Gujarat [(2006) 3 SCC 374] | Supreme Court of India | Reiterated that the right to a fair trial is a fundamental right under Article 21 of the Constitution. |
| Maneka Sanjay Gandhi v. Rani Jethmalani [(1979) 4 SCC 167] | Supreme Court of India | Reiterated that the right to a fair trial is a fundamental right under Article 21 of the Constitution. |
| R. Balakrishna Pillai v. State of Kerala [(2000) 7 SCC 129] | Supreme Court of India | Reiterated that the right to a fair trial is a fundamental right under Article 21 of the Constitution and that judges are not influenced by propaganda or adverse publicity. |
| Amarinder Singh v. Parkash Singh Badal [(2009) 6 SCC 260] | Supreme Court of India | Discussed the importance of a fair trial and the circumstances under which a case can be transferred. |
| Nahar Singh Yadav v. Union of India [(2011) 1 SCC 307] | Supreme Court of India | Enumerated the basic principles for the power of transfer under Section 406, CrPC. |
| Abdul Nazar Madani v. State of Tamil Nadu [(2000) 6 SCC 204] | Supreme Court of India | Cited by the Respondent to argue that the convenience of the prosecution, accused, and witnesses should be considered. |
| Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. [(2005) 8 SCC 771] | Supreme Court of India | Cited by the Respondent to argue that the convenience of the prosecution, accused, and witnesses should be considered. |
| Harita Sunil Parab v. State (NCT of Delhi) [(2018) 6 SCC 358] | Supreme Court of India | Cited by the Respondent to argue that the convenience of the prosecution, accused, and witnesses should be considered. |
| Swaati Nirkhi v. State (NCT of Delhi) [2021 SCC Online SC 202] | Supreme Court of India | Cited by the Respondent to argue that the convenience of the prosecution, accused, and witnesses should be considered. |
| Gurcharan Dass Chadha v. State of Rajasthan [(1966) 2 SCR 678] | Supreme Court of India | Cited by the Respondent to argue that the power under Section 406, CrPC is to be exercised sparingly. |
| Ashish Chandra v. Asha Kumari [(2012) 1 SCC 680] | Supreme Court of India | Cited by the Respondent to refer the observations of this Court that transfer of cases have a demoralizing effect on trial courts. |
| Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 February 2023] | Supreme Court of India | Cited to state that the transfer of a criminal case from one state to another implicitly reflects upon the credibility of the State Judiciary and the prosecution agency. |
Judgment
| Submission | Court’s Treatment |
|---|---|
| The State’s stance dramatically changed, now detrimental to the prosecution. | The Court acknowledged the State’s u-turn and its attempt to withdraw the prosecution, highlighting the misuse of Section 321 of CrPC. |
| Respondent No. 2 has 34 criminal cases, yet the State sought withdrawal without reason, misusing Section 321 of CrPC. | The Court agreed that the procedure followed was alien to the scheme of Section 321 CrPC, as the decision was taken at the level of the State Government. |
| The De-facto Complainant was gained over, evident from his no-objection to bail, withdrawal of the writ petition, and turning hostile. | The Court noted the De-facto Complainant’s change in stance and his resiling from his initial statement. |
| Witnesses are threatened and turning hostile, with false cases instituted against crucial witnesses. | The Court recognized the threat to the life and liberty of witnesses. |
| There is a serious threat to the life and liberty of witnesses, preventing truthful deposition. | The Court directed the State to provide adequate security to witnesses. |
| Respondent No. 2 was not shifted to a Kolkata hospital as directed by the High Court, instead, he had access to luxurious facilities at the Purba Medinipur hospital. | The Court did not specifically comment on this submission, however, it did direct that Respondent No. 2 be transferred to the Central Jail at Calcutta. |
| The Petitioner has a genuine apprehension of not receiving fair justice in West Bengal due to a compromised prosecution. | The Court acknowledged the Petitioner’s apprehension but decided that it could be addressed by transferring the trial within the state and issuing appropriate directions. |
| The Petitioner lacks locus standi as he is not the complainant but a witness. | The Court rejected this argument, holding that the Petitioner, being the brother of the deceased, is vitally interested in a fair trial. |
| The power under Section 406 of CrPC should be used sparingly. | The Court agreed with this principle, noting that transfers should only be allowed in exceptional cases. |
| Transfer would inconvenience 107 witnesses, most of whom are Bengali speaking. | The Court accepted this argument and decided that transferring the trial outside the state would cause serious impediment in the deposition of witnesses. |
| Authority | Court’s View |
|---|---|
| Surendra Pratap Singh v. State of Uttar Pradesh [(2010) 9 SCC 475] | Cited by the Petitioner, the Court acknowledged that in similar circumstances, the trial was transferred to ensure fair justice, but did not follow it. |
| K. Anbazhagan v. State of Karnataka [(2015) 6 SCC 86] | Cited by the Petitioner, the Court acknowledged that once a case is transferred, the transferee state has full control over the prosecution, but did not follow it. |
| K. Anbazhagan v. Superintendent of Police [(2004) 3 SCC 767] | The Court relied on this case to interpret the phrase “party interested” under Section 406(2) of the CrPC, and held that the Petitioner had the locus standi to file the transfer petition. |
| Rex v. Sussex Justices [1924] 1 KB 256 | The Court relied on this case to emphasize that justice must not only be done but must also be seen to be done. |
| Zahira Habibullah Sheikh v. State of Gujarat [(2006) 3 SCC 374] | The Court relied on this case to reiterate that the right to a fair trial is a fundamental right under Article 21 of the Constitution. |
| Maneka Sanjay Gandhi v. Rani Jethmalani [(1979) 4 SCC 167] | The Court relied on this case to reiterate that the right to a fair trial is a fundamental right under Article 21 of the Constitution. |
| R. Balakrishna Pillai v. State of Kerala [(2000) 7 SCC 129] | The Court relied on this case to reiterate that the right to a fair trial is a fundamental right under Article 21 of the Constitution and that judges are not influenced by propaganda or adverse publicity. |
| Amarinder Singh v. Parkash Singh Badal [(2009) 6 SCC 260] | The Court relied on this case to discuss the importance of a fair trial and the circumstances under which a case can be transferred. |
| Nahar Singh Yadav v. Union of India [(2011) 1 SCC 307] | The Court relied on this case to enumerate the basic principles for the power of transfer under Section 406, CrPC. |
| Abdul Nazar Madani v. State of Tamil Nadu [(2000) 6 SCC 204] | The Court relied on this case to acknowledge that the convenience of the prosecution, accused, and witnesses should be considered. |
| Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. [(2005) 8 SCC 771] | The Court relied on this case to acknowledge that the convenience of the prosecution, accused, and witnesses should be considered. |
| Harita Sunil Parab v. State (NCT of Delhi) [(2018) 6 SCC 358] | The Court relied on this case to acknowledge that the convenience of the prosecution, accused, and witnesses should be considered. |
| Swaati Nirkhi v. State (NCT of Delhi) [2021 SCC Online SC 202] | The Court relied on this case to acknowledge that the convenience of the prosecution, accused, and witnesses should be considered. |
| Gurcharan Dass Chadha v. State of Rajasthan [(1966) 2 SCR 678] | The Court relied on this case to acknowledge that the power under Section 406, CrPC is to be exercised sparingly. |
| Ashish Chandra v. Asha Kumari [(2012) 1 SCC 680] | The Court relied on this case to acknowledge that transfer of cases have a demoralizing effect on trial courts. |
| Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 February 2023] | The Court relied on this case to acknowledge that the transfer of a criminal case from one state to another implicitly reflects upon the credibility of the State Judiciary and the prosecution agency. |
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several factors. The Court acknowledged the State’s u-turn and its attempt to withdraw the prosecution, highlighting the misuse of Section 321 of CrPC. The Court also recognized the threat to the life and liberty of witnesses and the De-facto Complainant’s change in stance. However, the Court also considered the convenience of the witnesses, most of whom are Bengali speaking and reside in Purba Medinipur. The Court was also mindful of the fact that the High Court and District Judiciary were ensuring fairness in the trial proceedings within their jurisdictional framework. Ultimately, the Court decided that the apprehensions of the Petitioner could be addressed by transferring the trial within the state and issuing appropriate directions.
| Reason | Percentage |
|---|---|
| State’s U-Turn and Misuse of Section 321 CrPC | 30% |
| Threat to Witnesses and De-facto Complainant’s Change in Stance | 30% |
| Convenience of Witnesses and Language Barrier | 20% |
| High Court and District Judiciary Ensuring Fairness | 20% |
| Category | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
Logical Reasoning:
The Court considered alternative interpretations, such as transferring the trial to another state, but rejected them due to the inconvenience it would cause to the witnesses. The Court also considered the possibility of allowing the trial to continue in the same court, but rejected that due to the apprehensions of the Petitioner and the compromised prosecution. The final decision was reached by balancing the need for a fair trial with the practical considerations of witness convenience and the existing judicial framework.
The Court’s decision was that there was no legal necessity to transfer the trial outside the State of West Bengal. The Court stated that the apprehensions of the Petitioner could be effectively addressed by issuing appropriate directions.
The Court’s decision was based on the following reasons:
- More than 90 witnesses, most of whom are Bengali speaking, are yet to be examined. Transferring the trial outside the state would cause serious impediment in their deposition.
- The High Court and District Judiciary are ensuring fairness in trial proceedings within their jurisdictional framework.
- The apprehensions of the Petitioner can be effectively redressed by issuing appropriate directions.
The Court quoted the following from the judgment:
“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.”
“Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable.”
“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 scot-free without trial.”
There were no dissenting opinions.
The Court’s reasoning was based on the need to balance the right to a fair trial with the practical considerations of witness convenience and the existing judicial framework. The Court’s legal interpretation was that the power to transfer a case should be exercised sparingly and only when justice is apparently in grave peril. The Court’s application of the law to the facts was that while the State’s conduct was concerning, the High Court had already taken steps to rectify the situation. The Court also took into consideration the fact that the trial was already underway and that transferring the case to another state would cause significant inconvenience to the witnesses.
The potential implications for future cases are that the Supreme Court has clarified that while it is willing to transfer cases to ensure a fair trial, it will only do so when there is a clear and present danger to the administration of justice. The Court has also emphasized the importance of considering the convenience of the witnesses when deciding whether to transfer a case. This judgment also highlights the importance of the High Courts in ensuring that the trial courts are conducting fair trials.
No new doctrines or legal principles were introduced.
Key Takeaways
- The Supreme Court transferred the criminal trial to the City Sessions Court at Calcutta to ensure a fair trial.
- The Court directed the State of West Bengal to appoint a Special Public Prosecutor.
- The Court ordered adequate security for the wife of the deceased, the Petitioner, and other crucial prosecution witnesses.
- The Court directed that the De-facto Complainant be subjected to cross-examination by the Special Public Prosecutor.
- The Court directed that Respondent No. 2 be transferred to the Central Jail at Calcutta.
- The Court directed that Respondent No. 2 not be enlarged on bail till the conclusion of trial, save by the High Court.
- The Court requested the Portfolio Judge of the Calcutta High Court to monitor the trial proceedings.
Directions
The Supreme Court gave the following directions:
- 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.
- The State of West Bengal is directed to appoint a Special Public Prosecutor in consultation with the Chief Judge, City Sessions Court at Calcutta.
- The State of West Bengal is directed to provide adequate security to the wife of the deceased, the Petitioner, and other crucial prosecution witnesses.
- The De-facto Complainant shall be subjected to cross-examination by the Special Public Prosecutor.
- Respondent No. 2 shall be transferred to the Central Jail at Calcutta.
- Respondent No. 2 shall not be enlarged on bail till the conclusion of trial, save by the High Court.
- The Portfolio Judge of the Calcutta High Court is requested to monitor the trial proceedings.