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'Communication Problem': SC Transfers NDPS Case Against Brazilian Citizen From Chennai To Delhi Court [Read Order]

2 Aug 2020 7:16 AM GMT

The Supreme Court transferred an NDPS case against a Brazilian Citizen from Chennai Court to Delhi Court.

Justice Hrishikesh Roy noted that the trial against Jailson Manoel Da Silva has not made much progress in the Chennai Court since last four years primarily because of the communication problem.

Before the Court, the petitioner contended that the trial in the Chennai Court is practically stalled for the last about four years primarily because he is unable to communicate with his counsel and arranging for his defence has practically become impossible. He also submitted that the Embassy of Brazil which indicates that Brazil Embassy in Delhi is willing to provide assistance to the accused, if the trial of the case is transferred to a Delhi Court from the Chennai Court.

Narcotics Control Bureau submitted before the court that the accused is certainly entitled to effective legal representation, but such legal assistance is being offered to the accused, in the Chennai Court as well. Taking note of these submission, Justice Roy allowed the Transfer Petition and observed:

I have considered the circumstances of the case and also the fact that the trial has not made much progress in the Chennai Court since last four years primarily because of the communication problem. If the case is transferred to the court in Delhi, the Narcotics Control Bureau who are the Prosecutor in this case will have no difficulty, as their officers and lawyers are available in Delhi.
Know the Law

Section 406 CrPC

Though the order in this case mentions Section 25 CPC, it seems to be a typographical error. The provision to be invoked seeking transfer of a criminal case is 406 of the Code of Criminal Procedure. Section 25 of the Code of Civil Procedure is almost similarly worded and empowers the Supreme Court to transfer civil cases.

To seek a transfer of a criminal case from a court in one state to another court in another state, one has to file an application under Section 406 of the Code of Criminal Procedure. This provision empowers the Supreme Court to transfer a case, if it appears to it that a transfer order is expedient for the ends of justice. The Supreme Court can direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court..

In Nahar Singh Yadav vs. Union Of India AIR 2011 SC 1549, the Supreme Court has examined the scope of this provision. It observed that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. It held that this power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. The three judge bench then listed some broad factors that should be kept in mind while considering an application for transfer of the trial:

  1. When it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;
  2. hen there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;
  3. Comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses;
  4. A communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and
  5. Existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.

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