AFJAL ALI SHA @ ABJAL SHAUKAT SHA versus STATE OF WEST BENGAL & ORS on 17 March 2023

SUPREME COURT REPORTS

[2023] 2 S.C.R.

AAFJAL ALI SHA @ ABJAL SHAUKAT SHA

v.

STATE OF WEST BENGAL & ORS.

(Transfer Petition (Criminal) No. 409 of 2021)

BMARCH 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 theCcriminal trial pending in West Bengal to Assam – Victim-deceasedwas shot dead by unknown persons – Respondents-accused werecharged u/s. 302 r/w s.120B of the IPC and u/ss. 25 and 27 of theArms Act 1959 – Charge-sheet was filed – Trial commenced –Respondent no.2 (main accused) was in the custody – DuringDpendency of trial, a notification issued by the State of West Bengaldirecting the Public Prosecutor to apply u/s.321 of Cr.P.C. andwithdraw proceedings against respondents subject to consent oftrial Court – Notification challenged before the High Court –Pursuant to the direction of the State, Public Prosecutor movedapplication before the trial Court for withdrawal of the prosecutionEcase – This application was taken up by the Link Judge presidingin the trial Court, despite case was listed for evidence – Link Judgewas informed regarding the challenge to the notification in the HighCourt, regardless thereto, he heard the application and allowed thesame – Respondents were acquitted – De-facto complainant filedFwrit petition before the Single Judge of the High Court, which setaside the notification of the State directing withdrawal of the case –Division Bench set aside the order and remanded the matter forfresh adjudication – Single Judge held that order of the Link Judgewould not be acted upon and respondent no.2 was not be releasedfrom custody – Meanwhile, trial proceeded – Petitioner filedGapplication 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 aschange of Public Prosecutor four times and harassment meted outto the prosecution witnesses and relatives of the deceased – Held:H

No legal necessity to transfer the trial outside the State of WestBengal – More than 90 witnesses, most of them Bengali speakingare yet to be examined – Transfer may cause serious impediment inthe deposition of those witnesses and some of them may be reluctantto travel to a far away place – However, considering all facts andcircumstances, following directions issued: (i) FIR No.495/2019registered transferred from the Court of Additional Session Judge,3[rd] Court, Tamluk, Purba Medinipur, West Bengal to the Court ofChief Judge, City Sessions Court at Calcutta; (ii) Trial to beconducted by the Chief Judge, City Sessions Court and case not tobe transferred to Additional Sessions Judge; (iii) Trial to be takenon weekly basis; (iv) State directed to appoint a Special PublicProsecutor on the recommendations of the Chief Judge, City SessionsCourt with prior approval of the High Court; (v) Wife of deceasedand petitioner and other crucial prosecution witnesses to be providedwith adequate security; (vi) De-facto complainant to be crossexamined by the Special Public Prosecutor; (vii) Respondent no.2or any other accused who are in custody to be transferred to CentralJail at Calcutta; (viii) Respondent no.2 not to be enlarged on bailtill the conclusion of trial save and except by the High Court; (viii)Portfolio Judge of the High Court to monitor and supervise thetrial proceedings.

Code of Criminal Procedure, 1973 – s. 406 – The power oftransfer under Section 406, CrPC is to be exercised sparingly andonly when justice is apparently in grave peril and therefore can beallowed only in exceptional cases considering the fact that transfersmay cast unnecessary aspersions on the State Judiciary and theprosecution agency – Further the convenience of parties andwitnesses as well as the language spoken by them are also relevantfactors when deciding a transfer petition.

Issuing directions, the Court

Conclusion

Issuing directions, the Court

HELD: 1. Section 406(2) of the CrPC provides that theSupreme Court may transfer a case “only on the application ofthe Attorney -General of India or of a party interested”.Considering the apt and expansive interpretation of phrase ‘partyinterested’ under Section 406(2) of the CrPC, it is held that thePetitioner, being the real brother of the Deceased, is vitallyinterested in a fair trial so that the Deceased and his family gets AB

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Ajustice. The Respondents’ challenge to the locus standi of thePetitioner is thus rejected. [Paras 22, 24][1106-B-C, G]

2. It has by now been well established that a well-foundedapprehension that justice will not be done is a prerequisite fortransfer of the case. Tracing the power of transfer of a case, weBare reminded of Lord Hewart’s dictum in Rex v. Sussex Justicesstating that “It is not merely of some importance but is of fundamentalimportance that justice should not only be done, but should manifestlyand undoubtedly be seen to be done”. The right to a fair trial is afundamental right under Article 21 of the Constitution of Indiaand its importance cannot be emphasised enough. However, toCobtain the transfer of a case, the Petitioner is required to showcircumstances from which it can be inferred that he entertains areasonable apprehension. This apprehension cannot be imaginaryand cannot be a mere allegation. The power of transfer underSection 406, CrPC is to be exercised sparingly and only whenDjustice is apparently in grave peril. This Court has allowedtransfers only in exceptional cases considering the fact thattransfers may cast unnecessary aspersions on the State Judiciaryand the prosecution agency. [Paras 25, 26, 27][1107-A-E]

3. The convenience of parties and witnesses as well as theElanguage spoken by them are also relevant factors when decidinga transfer petition, as has been noted by this Court in a catena ofjudgments. In some of the recent decisions including in NeelamPandey v. Rahul Shukla, this Court has viewed that transfer of acriminal case from one state to another implicitly reflects uponcredibility of not only the State Judiciary but also of the prosecutionFagency. [Paras 31, 32][1109-C-D]

4. There is no legal necessity to transfer the trial outsidethe State of West Bengal and the apprehensions of the Petitioner,some of which are indeed genuine, can be effectively redressedby issuing appropriate directions. We say so for the reason thatGmore than 90 witnesses, most of whom are Bengali speaking,are yet to be examined. The transfer of trial to any otherneighbouring state will cause serious impediment in thedeposition of those witnesses and some of them might be reluctant H

to travel to a far away place and, thus, the case of the Prosecutionwill be severely prejudiced. So long as the High Court and DistrictJudiciary are ensuring the fairness in trial proceedings withintheir jurisdictional framework, we are not inclined to accept thatthe victim’s family will not get fair justice, if the trial is held in theState of West Bengal. [Para 35][1110-D-F]

5. Considering all the facts and circumstances, this Courtdeems it appropriate to dispose of this transfer petition in followingterms:- (i) Criminal Trial bearing ST No. 1 (03) of 2020 arisingout of FIR No. 495/2019 registered at Police Station Panskura,District Purba Medinipur is ordered to be transferred from theCourt of Additional Sessions Judge, 3rd Court, Tamluk, PurbaMedinipur, West Bengal to the Court of Chief Judge, CitySessions Court at Calcutta; (ii) The trial shall be conducted bythe Chief Judge, City Sessions Court and he shall not entrustthe case to any other Additional Sessions Judge; (iii) The ChiefJudge, City Sessions Court shall endeavour to take up the trialon a weekly basis and shall make an effort to conclude the samewithin a period of six months; (iv) The State of West Bengal isdirected to appoint a Special Public Prosecutor on therecommendations of the Chief Judge, City Sessions Court,Calcutta with the prior approval of the High Court. This exerciseshall be completed within two weeks; (v) The wife of theDeceased, the Petitioner and other crucial prosecution witnessesshall be provided adequate security. The State of West Bengal isdirected to ensure that no harm is caused to the life and liberty ofthe witnesses and no direct or indirect attempt is made byRespondent No. 2 or his co-accused persons or anyone on theirbehalf to influence, frighten or threaten the witnesses; (vi) TheDe-facto Complainant who is also stated to be the eyewitnessand has allegedly resiled from his version recorded during theexamination-in-chief, shall be subjected to cross-examination bythe Special Public Prosecutor, for which the advocate engagedby the Petitioner may provide assistance to the learned SpecialPublic Prosecutor; (vii) Respondent No. 2 or any other accusedwho are in custody shall be transferred forthwith to the CentralJail at Calcutta; (viii) Respondent No. 2, having regard to hiscriminal antecedents, as well as other accused who are in custody, A

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Ashall not be enlarged on bail till the conclusion of trial save andexcept by the High Court; (ix) The Learned Portfolio Judge ofthe Calcutta High Court is requested to regularly monitor andsupervise the trial proceedings in terms of the directions issuedhereinabove. [Para 36][1110-G-H; 1111-A-G]

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K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86: [2015] 7 SCR 355; Amarinder Singh v. Parkash SinghBadal (2009) 6 SCC 260 : [2009] 9 SCR 194; NaharSingh Yadav v. Union of India (2011) 1 SCC 307 :[2010] 13 SCR 851 – relied on.

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Surendra Pratap Singh v. State of Uttar Pradesh (2010)9 SCC 475 : [2010] 11 SCR 909; Abdul Nazar Madaniv. State of Tamil Nadu (2000) 6 SCC 204 : [2000] 3SCR 1028; Sri Jayendra Saraswathy Swamigal (II) v.State of T. N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCRD556; 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; GurcharanDass 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. SuperintendentEof Police (2004) 3 SCC 767 : [2003] 5 Suppl. SCR610; Zahira Habibullah Sheikh v. State of Gujarat(2006) 3 SCC 374 : [2006] 2 SCR 1081; ManekaSanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 :[1979] 2 SCR 378; R. Balakrishna Pillai v. State ofFKerala (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

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[2010] 11 SCR 909referred toPara 17 (ix)[2015] 7 SCR 355relied onPara 17 (ix)

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AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WESTBENGAL & ORS.

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. 3[rd] at Tamluk, Purba Medinipur, West Bengal toCompetent Kamrup District Court in Assam.

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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.

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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, TavishBhushan Prasad, Ms. Sayani Bhattacharya, Arjun Ranganathan, DeveshMishra, Pallak Bhagat, Ms. Reshmi Rea Sinha, Abhishek Sarkar, ManiBhushan Sinha, Pranab Prakash, Soumya Dutta, Siddhant Upmanyu,Advs. for the Respondents.

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1096SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by SURYA KANT, J.

1. This transfer petition has been preferred under Section 406 ofthe Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), read withArticle 139A of the Constitution of India and Order 39 of the SupremeBCourt Rules, 2013. The Petitioner herein is the brother of one KurbanSha (hereinafter, ‘Deceased’) and he seeks transfer of the criminal trialS.T. No. 1 (03) of 2020, arising out of FIR No. 495 of 2019 registered atPS Panskura, pending in the Court of Additional Sessions Judge, 3[rd]Court, Tamluk, Purba Medinipur, West Bengal (hereinafter, ‘Trial Court’),Cto a competent court in the State of Assam, primarily on the ground thata fair trial will not be possible in the State of West Bengal.

A. FACTS

2. The factual matrix is succinctly discussed below before delvinginto the aforesaid issue that arises for our consideration: -D

3. On the date of incident, i.e., 07.10.2019, the Deceased is allegedto have been shot in the neck by ‘certain unknown musclemen & goons’when he was working in the office of a political party. The Deceasedwas immediately rushed to a hospital but was declared dead on arrival.On the next day, the subject FIR was lodged under Section 302 readEwith Section 120B of the Indian Penal Code, 1860 (hereinafter, ‘IPC’)and, under Sections 25 and 27 of the Arms Act, 1959 against RespondentNo. 2 at the behest of one Jahar Sha (hereinafter, ‘De-factoComplainant’), who is stated to be the Deceased’s nephew and aneyewitness to the alleged occurrence.

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F4. After investigation, the police authorities concluded thatRespondent Nos. 3 to 11 were also involved in the offence, along withRespondent No. 2. A chargesheet was submitted against the saidindividuals along with a list of 107 witnesses, including the De-factoComplainant and the Petitioner. It is pertinent to mention that during theinvestigation, the police is also said to have recovered some incriminatingGmaterial such as fire arms, ammunition and certain documents.

5. Accordingly, charges were framed against Respondent Nos. 2to 8 and Respondent No. 11 by the Trial Court under Sections 302 readwith 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959.Respondent Nos. 9 & 10 had previously been declared as proclaimedH

offenders. The trial commenced in September, 2020. The main accused,i.e., Respondent No. 2, continues in custody as his repeated bailapplications have been dismissed by the Trial Court as well as by theCalcutta High Court.

6. During the pendency of the trial, the Legal Remembrancer &Ex-Officio Secretary to the Government of West Bengal, JudicialDepartment, by an order of the Governor, issued a notification dated26.02.2021 directing the Public Prosecutor to apply under Section 321of CrPC and withdraw the criminal proceedings against RespondentNos. 2 to 11, subject to the consent of the learned Trial Court. Thisnotification was challenged by the De-facto Complainant before theCalcutta High Court.

7. Soon thereafter, on 01.03.2021, a newly appointed PublicProsecutor moved an application before the learned Trial Court prayingfor withdrawal of the prosecution case stating that it was marred withpolitical and personal vendetta. This application was taken up for hearingon the very next day by a Link Judge who was presiding over the TrialCourt, despite the fact that the case was listed for recording evidenceon 10.03.2021. The Link Judge was reportedly informed about the pendingchallenge to the notification dated 26.02.2021 at the Calcutta High Court,but regardless thereto, he proceeded to hear the application and allowedthe Prosecution to withdraw the case. As a result, Respondent Nos. 2-11 were acquitted.

8. Meanwhile, the writ petition filed by the De-facto Complainantwas taken up for hearing on the afternoon of the same day when theTrial Court had allowed the Public Prosecutor to withdraw the criminalcase. A learned Single Judge of the High Court noted as follows:

“Surprisingly, in the instant case, a specific notification wasissued on February 26, 2021, apparently communicating adirection of the Governor to instruct the concerned PublicProsecutor to withdraw the case–in-question subject to theconsent of the Sessions Court. However, not an iota of reasonand/or how such withdrawal would advance the cause ofjustice and public interest has been indicated in the said order.That apart, the modus operandi in the present case is rathertransparent since the Public Prosecutor actually acted on suchinstruction and made an application pursuant to the order ofthe State Government and, despite having knowledge of this A

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ACourt being in seisin of the present writ petition, the concernedSessions 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 allprevious occasions when bail was rejected, that the StateBvehemently opposed even the grant of bail to the accused.Hence, it defies logic completely as to what prompted theGovernment to instruct the Public Prosecutor-in- question towithdraw the case against the accused persons all of asudden.

CDespite the self-imposed restraint which this courtimposes upon itself in the exercise of jurisdiction under Article226 of the Constitution of India, such restraint cannot be afetter to the court exercising such jurisdiction for the ends ofjustice where manifest abuse of the process of law has takenplace. If the writ court shuts its eyes to the perpetration ofDmala fide and arbitrary administrative action, it would befailing in its incumbent duty of judicial review conferred bythe Constitution of India.

In the present case, in view of the arbitrary andunreasoned nature of the instructions of the State to the PublicEProsecutor dated February 26, 2021, pursuant to which thePublic Prosecutor acted and even the Sessions Court grantedconsent to such withdrawal, the said instruction as well as theeffects thereof have to be set aside.”

9. The High Court observed that none of the parameters to invokeFjurisdiction under Section 321 of CrPC were applied either by the PublicProsecutor or by the State and resultantly, it was held that the exercisewas bad in law and that the mala fides of the State was evident from itscontradictory stand wherein it previously opposed the bail applicationsbut now was seeking to withdraw the prosecution itself. Accordingly,Gthe High Court directed that any action taken in the meantime, pursuantto the State Government’s notification dated 26.02.2021, including theorder allowing withdrawal of the case was liable to be set aside. It orderedaccordingly.

10. The De-facto Complainant thereafter submitted an affidavitbefore the Trial Court expressing his ‘no-objection’ to the grant of bail toH

Respondent No. 2. Meanwhile, Respondent No. 2 appealed against theorder of the learned Single Judge before a Division Bench, inter alia,on the ground of violation of the principles of audi alteram partem. TheDivision Bench set aside the order on this ground and remanded thematter for fresh adjudication. It must be noted that the Petitioner hereinhad also filed an application for impleadment in the proceedings beforethe Division Bench but the same was closed with liberty to renew theprayer before the Single Judge.

11. On remand, the learned Single Judge first considered the prayerof the De-facto Complainant for withdrawal of the writ petition and alsothe application of the Petitioner herein to be impleaded as a party. Thelearned Single Judge, vide an interim order in the second round ofproceedings, noted firstly that the Petitioner is the brother of theDeceased and has the locus to file a fresh writ petition and secondly, inview of the alleged threat to life & liberty of the De-facto Complainant,his name was deleted and the Petitioner was transposed as the writpetitioner. The Single Judge observed that the withdrawal of the writpetition at that stage would frustrate the order of the learned DivisionBench as well as the ends of justice. It was, thus, again directed that theorder of the Link Judge would not be acted upon and Respondent No. 2shall not be released from custody, without an order of the competentcourt. 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 statementmade during examination-in-chief but nevertheless he was not declaredhostile by the Public Prosecutor. Thereafter, the Petitioner filed anapplication before the Trial Court to declare the De-facto Complainanthostile and to allow the Petitioner’s lawyer to cross-examine him. TheTrial Court considered the said application and noted that the De-factoComplainant had “made some statements in his cross examination,which are not in conformity with the version of his examination-in-chief”. The Petitioner’s application was however, rejected afterappreciation of the statutory provisions and the case law. The Trial Courtheld as follows:

“In view of the discussions made in the foregoingparagraphs, I am of the opinion that the prosecution shouldbe given a fair chance to unearth the true facts, and an AB

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Aopportunity shall be given to the Ld. Spl. P.P. to cross examinePW1 after declaring him hostile.

Hence, the Ld. Spl. P.P., and not the Ld. Advocateappointed by this instant petitioner, shall be given permissionto cross-examine PW1. The Ld. Advocate appointed by theBpetitioner Afjal Ali Sha can only be permitted to act under thedirection of Ld. Public Prosecutor in view of Sec 301(2) ofCrP.C.”

13. Meanwhile, the instant Transfer Petition was filed in whichthis Court vide order dated 05.10.2021 directed stay on furtherCproceedings in the trial.

14. Thereafter, the learned Single Judge of the High Court, on02.08.2022, finally decided the writ petition and set aside the Government’snotification dated 26.02.2021. It was observed that “The attendingcircumstances of the present case do not inspire much confidenceDin the bona fides of the State and PP behind the withdrawal”. TheCourt viewed that: - “When the charges were initially levelled, the State itselfwished Godspeed to the prosecution, which is reflected fromthe pace at which investigation was concluded and trialEcommenced. Yet, when the respondent no. 5 allegedly leanedin favour of the ruling party of the State, the prosecution beata hasty retreat by seeking to withdraw the prosecution, whichwould have the effect of the accused being discharged scot-free without trial.”

FIt was also noted that on the one hand, the State was defendingthe withdrawal of Prosecution and on the other, was expediting the trialwherein several witnesses were resiling from their statements. In lightof these circumstances, all action taken in pursuance of the notificationdated 26.02.2021, including the application and Trial Court’s order underSection 321, CrPC was set aside. The said order appears to not haveGbeen challenged and has attained finality.

15. The Petitioner has further alleged that multiple abnormalitieshave occurred during the pendency of the trial, such as the change ofthe Public Prosecutor four times and the harassment meted out to theprosecution witnesses and relatives of the Deceased. The wife of theH

Deceased, Saida Sabana Banu Khatun, is alleged to have been attackedby Respondent No. 2’s henchmen and relatives of the other accusedpersons in the premises of the Trial Court. One witness, named ImranAli, was allegedly abducted by associates of Respondent No. 2 whoalso threatened to kill him. The Petitioner has contended that his securitycover was withdrawn. It is also averred that the authorities were dulyinformed 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 andinfluence them to depose in favour of the accused persons.

16. It is in this factual backdrop that this transfer petition has beenfiled.

B. SUBMISSIONS

17. Mr. P.S. Patwalia, learned senior counsel for the Petitionerhas raised the following contentions seeking transfer of the trial outsidethe State of West Bengal:

(i) The conduct of the State, which was vigorously opposingthe bail applications of Respondent No. 2 in the past, hasdramatically changed and is now detrimental to theProsecution’s case;

(ii) Respondent No. 2 has at least thirty-four (34) criminal casesregistered against him and yet, the State directed withdrawalfrom prosecution without any cogent reason. The powerunder Section 321, CrPC was blatantly misused;

(iii) The De-facto Complainant has been gained over duringthe trial as is evident from his no-objection to the grant ofbail to Respondent No. 2; his prayer to withdraw the writpetition challenging the State’s notification under Section321, CrPC and the De-facto Complainant turning hostileduring his cross-examination;

(iv) The witnesses are being threatened and are turning hostilein their cross examination. False cases have been institutedagainst crucial witnesses to browbeat them;

(v) There is a serious threat to the life and liberty of thewitnesses and they may be influenced due to the lack of asafe environment to truthfully depose before the court.

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Reliance has been placed on certain observations of theCalcutta High Court regarding the mala fides of the State; A

(vi) It is alleged that on a previous occasion, when the HighCourt directed to shift Respondent No. 2 from PurbaMedinipur to a hospital in Kolkata for medical treatment,the same was not done. Rather, he was kept in the hospitalat Purba Medinipur where he had access to luxuriousfacilities; B

(vii) Reliance has been placed on the High Court’s observationswhile rejecting Respondent No. 2’s bail application to theeffect that:

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“The aforesaid narration of events clearly discloses aprevaricating stance on the part of the State of West Bengal.While on one hand, the State proceeded to bury the prosecutionby resorting to its withdrawal under Section 321 Cr.P.C., onDthe other hand it purported to continue the prosecution againstthe petitioner and other accused persons by examiningwitnesses.

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Be that as it may, it is relevant to note in the prosecutionconducted by the State, most of the witnesses have resiledfrom their earlier statements to police and have turned hostile.It is also pertinent to bear in mind even the informant JaharSha, the original writ petitioner in WPA 6315 of 2021expressed apprehension and was unwilling to proceed withthe said proceeding challenging withdrawal of prosecution.

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These circumstances give rise to a serious apprehension inthe mind of this Court as to the overwhelming and malevolentinfluence on the witnesses as well as the informant whichhad prompted them from either withdrawing from the writpetition or resiling from their earlier statements before policeGduring deposition in Court.”

(viii) In these circumstances, there is a genuine apprehension inthe mind of the Petitioner, brother of the Deceased, thatthey would not receive free and fair justice in the State ofWest Bengal as the prosecution is compromised; H

(ix) Reliance has been placed on Surendra Pratap Singh v.State of Uttar Pradesh[1 ]to urge that in similar facts andcircumstances, the trial was transferred from the State ofUttar Pradesh to the State of Madhya Pradesh, in order todo fair justice to all the parties. The judgment in K.Anbazhagan v. State of Karnataka[2 ]has also been citedto iterate that once a case stands transferred from one stateto another, the transferee state has full control over theprosecution and becomes the prosecuting State. It is thePetitioner’s contention that once the prosecuting statechanges, the trial can be completed in a fair and just manner.

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18. During the course of hearing, Mr. Patwalia clarified that it isnot necessary to transfer the trial to the State of Assam and this Courtmay consider the desirability of transferring it to any other neighbouringStates, like Orissa or Jharkhand.

19. Opposing the transfer, Mr. Kapil Sibal and Mr. Neeraj KishanKaul, learned senior counsels on behalf of Respondent No. 1- State ofWest Bengal and Mr. V. Giri, learned senior counsel on behalf ofRespondent No. 2, contended that the facts as revealed do not make outa case for transfer of the trial outside the State of West Bengal. At theoutset, they have challenged the locus of the Petitioner to file this transferpetition, contending that the Petitioner is not the complainant and is onlya witness in the trial. They have made the following submissions:

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(i) The Deceased’s wife did not approach the state police aboutthe alleged attack on her in the Trial Court premises on02.03.2021 and the Petitioner’s security arrangement wasnever withdrawn by the State. The police took prompt actionin the matter of abduction of witness Imran Ali as theaccused persons & the victims were swiftly located andchargesheet has been filed in the case; F

(ii) The veracity of the media reports relied upon by thePetitioner to show that Respondent No. 2 has access toGfacilities, such as smartphone, headphones etc. are notbased 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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A(iii)The Public Prosecutor gave detailed reasons in hiswithdrawal application before the Trial Court in compliancewith Section 321 of CrPC;

(iv) The requirements under Section 406, CrPC are not met inthis case as no reasonable apprehension that justice willBnot be done, is made out.

(v) There is no allegation or whisper of bias in the State Judiciaryas is evident from the fact that the accused persons’ bailapplications have constantly been rejected by the Trial Courtand such rejection has been upheld in the High Court. TheCHigh Court has acted as a robust supervisory mechanismto oversee the trial proceedings and check any lapsesoccurring therein;

(vi) There are no allegations of unfair investigation and the onlyTrial Court order found fault with was the order passed byDthe Link Judge allowing the application for withdrawal ofprosecution;

(vii) There are 107 Prosecution witnesses in the trial out of which80 witnesses reside in Purba Medinipur district where thetrial is going on. Till the trial was stayed by this Court, theTrial Court had examined 11 witnesses. Most witnessesEare stated to be Bengali speaking. In light of thesecircumstances, it is stated that the transfer of the case to acourt outside the State of West Bengal will cause extremeinconvenience to the Prosecution & most witnesses. Thejudgment in Abdul Nazar Madani v. State of Tamil Nadu[3]Fwherein this Court considered the convenience of theProsecution, other accused persons, the witnesses and thelarger interest of society while deciding a transfer petition,has been pressed into aid. Other cases have also similarlybeen cited[4]; G(viii) Reliance has been placed on Nahar Singh Yadav v. Unionof India[5 ]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; HaritaSunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358; Swaati Nirkhi v. State (NCTof Delhi) 2021 SCC Online SC 202.H5 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.

Section 406, CrPC is to be exercised sparingly and thattransfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensedimpartially. Other similar decisions have also been broughtto our notice[6]; A

(ix) Ashish Chandra v. Asha Kumari[7 ]has been cited to referthe observations of this Court that transfer of cases have ademoralizing effect on trial courts.

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(x) The Deceased was and the Petitioner is a politicallyinfluential person and transfer of the proceedings is soughtto a jurisdiction where he will be able to exert his politicalinfluence. The Deceased himself is stated to have hadmultiple criminal cases pending against him; C

(xi) There is nothing on record to show that witnesses havebeen threatened. Respondent no. 2, being in custody, cannotexert any threat or pressure on the witnesses; D

(xii) The Petitioner has delayed the trial through theseproceedings and the accused persons have been in custodyfor over three years. As such, it is contended that prejudicehas been caused to the accused persons and they shall incurheavy expenses to defend themselves if the case were tobe transferred outside the State of West Bengal; E

(xiii) To ensure a fair trial, this Court may transfer the caseanywhere in the state and appoint a Public Prosecutor whileprotecting the accused persons and the complainant.

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20. All other Respondents have supported this stance and madesimilar averments.

C. ANALYSIS

21. We have carefully considered the submissions made by theparties and perused the record. Before adverting to the contentious issue,Gwe deem it appropriate to discuss the settled principles in relation to theexercise 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 Singhv. Parkash Singh Badal (2009) 6 SCC 260.

7 Ashish Chandra v. Asha Kumari, (2012) 1 SCC 680

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Athe preliminary objection raised by the respondents on the locus standiof 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 CourtBmay transfer a case “only on the application of the Attorney-General ofIndia or of a party interested”.

23. In the case of K. Anbazhagan v. Superintendent of Police[8],this Court discussed the meaning of expression “a party interested” underSection 406, CrPC and held as follows:C

“The words “party interested” are of a wide import and,therefore, they have to be given a wider meaning. If it wasthe intendment of the legislature to give restricted meaningthen it would have used words to the effect “party to theproceedings”. In this behalf the wording of Article 139-A ofDthe Constitution of India may be looked at. Under Article 139-A the transfer can be if “the Supreme Court is satisfied on itsown motion or on an application made by the Attorney Generalof India or by a party to any such case”. (emphasis supplied)Also if the provisions of Chapter XXIX of the CriminalProcedure Code are looked at, it is seen that when theElegislature intended a “party to the proceedings” to have aright of appeal it specifically so stated. The legislature,therefore, keeping in view the larger public interest involvedin a criminal justice system, purposely used words of a widerimport in Section 406. Also, it is a well-settled principle ofFlaw that statutes must be interpreted to advance the cause ofstatute 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 thePetitioner, being the real brother of the Deceased, is vitally interested inGa fair trial so that the Deceased and his family gets justice. TheRespondents’ challenge to the locus standi of the Petitioner is thusrejected.

H8 K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767.

C.2. GROUNDS FOR TRANSFER

25. Coming to the second limb of the contentions raised on behalfof the parties, we may firstly notice some of the well-defined contours inrelation thereto. It has by now been well established that a well-foundedapprehension that justice will not be done is a prerequisite for transfer ofthe case. Tracing the power of transfer of a case, we are reminded ofLord Hewart’s dictum in Rex v. Sussex Justices[9 ]stating that “It is notmerely of some importance but is of fundamental importance thatjustice should not only be done, but should manifestly andundoubtedly be seen to be done”.

26. The right to a fair trial is a fundamental right under Article 21of the Constitution of India[10] and its importance cannot be emphasisedenough. However, to obtain the transfer of a case, the Petitioner isrequired to show circumstances from which it can be inferred that heentertains a reasonable apprehension. This apprehension cannot beimaginary and cannot be a mere allegation.[11]

27. The power of transfer under Section 406, CrPC is to beexercised sparingly and only when justice is apparently in grave peril.This Court has allowed transfers only in exceptional cases consideringthe fact that transfers may cast unnecessary aspersions on the StateJudiciary and the prosecution agency.[12] Thus, over the years, this Courthas laid down certain guidelines and situations wherein such power canbe justiciably invoked.

28. In Amarinder Singh v. Parkash Singh Badal[13], this Courtobserved as follows:

“19. Assurance of a fair trial is the first imperative ofthe dispensation of justice. The purpose of the criminal trialis to dispense fair and impartial justice uninfluenced byextraneous considerations. When it is shown that the publicconfidence 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 Pillaiv. 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. RahulShukla [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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Aundermined, the aggrieved party can seek the transfer of acase within the State under Section 407 and anywhere in thecountry under Section 406 CrPC.”

29. In Nahar Singh Yadav v. Union of India[14 ]after analysingthe case-law, this Court enumerated the basic principles of the power ofBtransfer under Section 406, CrPC as follows:

“29. Thus, although no rigid and inflexible rule or test couldbe laid down to decide whether or not power under Section406 CrPC should be exercised, it is manifest from a barereading of sub-sections (2) and (3) of the said section and onCan analysis of the decisions of this Court that an order oftransfer of trial is not to be passed as a matter of routine ormerely because an interested party has expressed someapprehension about the proper conduct of a trial. This powerhas to be exercised cautiously and in exceptional situations,where it becomes necessary to do so to provide credibility toDthe trial. Some of the broad factors which could be kept inmind while considering an application for transfer of the trialare:

(i) when it appears that the State machinery orprosecution is acting hand in glove with the accused, andEthere is likelihood of miscarriage of justice due to thelackadaisical attitude of the prosecution;

(ii) when there is material to show that the accused mayinfluence the prosecution witnesses or cause physical harmto the complainant; F

(iii) comparative inconvenience and hardships likely tobe caused to the accused, the complainant/the prosecutionand the witnesses, besides the burden to be borne by the Stateexchequer in making payment of travelling and otherexpenses of the official and non-official witnesses; G(iv) a communally surcharged atmosphere, indicatingsome proof of inability of holding fair and impartial trialbecause of the accusations made and the nature of the crimecommitted by the accused; and H14 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.

(v) existence of some material from which it can beinferred that some persons are so hostile that they areinterfering or are likely to interfere either directly or indirectlywith the course of justice.”

30. In R. Balakrishna Pillai v. State of Kerala[15], this Courtnoted the crucial separation of powers between the judiciary and theexecutive and held that “Judges are not influenced in any mannereither by the propaganda or adverse publicity. Cases are decidedon the basis of the evidence available on record and the law”applicable.

31. The convenience of parties and witnesses as well as thelanguage spoken by them are also relevant factors when deciding atransfer petition, as has been noted by this Court in a catena ofjudgments.[16]

32. In some of the recent decisions including in Neelam Pandeyv. Rahul Shukla[17], this Court has viewed that transfer of a criminalcase from one state to another implicitly reflects upon credibility of notonly the State Judiciary but also of the prosecution agency.

33. Adverting to the facts of the case in hand in light of the principlesenunciated by this Court from time to time, it is true that the State ofWest Bengal has taken a complete u-turn with a view to help the mainaccused, namely, Respondent No. 2 and it went to the extent of resortingto its powers under Section 321 of CrPC to withdraw the prosecutionitself. A plain reading of Section 321, CrPC leaves no room to doubt thatit is the Public Prosecutor in-charge of the case who has to apply hismind independently and impartially to form a view for withdrawal fromthe prosecution with the consent of the court. The procedure followed inthe case in hand was completely alien to the scheme of Section 321,CrPC as the decision to withdraw prosecution was taken at the level ofthe State Government and the Public Prosecutor was merely asked toact upon the said Government notification. The Link Judge also showedtearinghurry in accepting the application of the Public Prosecutor and 15 R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129.

16 Abdul Nazar Madani v. State of TN (2000) 6 SCC 204; Sri Jayendra SaraswathySwamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita Sunil Parab v. State (NCT ofDelhi) (2018) 6 SCC 358.

17 Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22February 2023].

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Apermitting withdrawal from prosecution even before the date when thecase was listed for prosecution evidence.

34. However, none of these patent illegalities were allowed tosustain as a result of the pro-active exercise of appellate/revisional/writjurisdiction by the High Court. Not only was the State Government’sBnotification set aside, the order passed by the Link Judge permittingsuch withdrawal was also annulled by the High Court. It is a matter ofrecord that the learned Trial Judge has repeatedly declined bail toRespondent No. 2 and even the High Court rejected his prayer forenlargement on bail. In this factual scenario, the question arises whetherit is essential to transfer the trial outside the State of West Bengal orCwhether the ends of justice can be adequately met by issuing alternativeappropriate directions?

D. CONCLUSIONS

35. Having given our thoughtful consideration to this issue, it appearsto us that there is no legal necessity to transfer the trial outside the StateDof West Bengal and the apprehensions of the Petitioner, some of whichare indeed genuine, can be effectively redressed by issuing appropriatedirections. We say so for the reason that more than 90 witnesses, mostof whom are Bengali speaking, are yet to be examined. The transfer oftrial to any other neighbouring state will cause serious impediment in theEdeposition of those witnesses and some of them might be reluctant totravel to a far away place and, thus, the case of the Prosecution will beseverely prejudiced. So long as the High Court and District Judiciary areensuring the fairness in trial proceedings within their jurisdictionalframework, we are not inclined to accept that the victim’s family will notget fair justice, if the trial is held in the State of West Bengal.F36. Taking into consideration all the facts and circumstances, wedeem it appropriate to dispose of this transfer petition in following terms:-

(i) Criminal Trial bearing ST No. 1 (03) of 2020 arising out ofFIR No. 495/2019 registered at Police Station Panskura,GDistrict Purba Medinipur is ordered to be transferred fromthe Court of Additional Sessions Judge, 3[rd] 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 SessionsCourt and he shall not entrust the case to any otherHAdditional Sessions Judge.

(iii) The Chief Judge, City Sessions Court shall endeavour toAtake up the trial on a weekly basis and shall make an effortto conclude the same within a period of six months.

(iv) The State of West Bengal is directed to appoint a SpecialPublic Prosecutor on the recommendations of the ChiefJudge, City Sessions Court, Calcutta with the prior approvalBof the High Court. This exercise shall be completed withintwo weeks.

(v) The wife of the Deceased, the Petitioner and other crucialprosecution witnesses shall be provided adequate security.The State of West Bengal is directed to ensure that no harmis caused to the life and liberty of the witnesses and nodirect or indirect attempt is made by Respondent No. 2 orhis co-accused persons or anyone on their behalf toinfluence, frighten or threaten the witnesses.

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(vi) The De-facto Complainant who is also stated to be the eye-Dwitness and has allegedly resiled from his version recordedduring the examination-in-chief, shall be subjected to cross-examination by the Special Public Prosecutor, for whichthe advocate engaged by the Petitioner may provideassistance to the learned Special Public Prosecutor.

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(vii) Respondent No. 2 or any other accused who are in custodyshall 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 beenlarged on bail till the conclusion of trial save and exceptby the High Court.F

(ix) The Learned Portfolio Judge of the Calcutta High Court isrequested to regularly monitor and supervise the trialproceedings in terms of the directions issued hereinabove.

37. This transfer petition is hence, disposed of in above statedterms.

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38. Pending applications, if any, also stand disposed of accordingly.

Ankit Gyan(Assisted by : Mahendra Yadav, LCRA)

Directions issued.

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