Power To Transfer Cases To Be Used Sparingly; May Cast Unnecessary Aspersions On State Judiciary & Prosecution Agency: Supreme Court

While considering a plea seeking transfer of a criminal trial, the Supreme Court recently reiterated the conditions pre-requisite for a transfer.

A bench of Justices Surya Kant and JK Maheshwari opined that the power of transfer under Section 406, Code of Criminal Procedure 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. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked.”

In the case, the deceased was allegedly shot in the neck by ‘certain unknown musclemen & goons’ when he was working in the office of a political party. Though immediately rushed to a hospital, he was declared dead on arrival. On the next day, an 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 Respondent No. 2 after as per the complaint of one, Jahar Sha, the De­facto Complainant.

After investigation, the police authorities concluded that eight others were also involved in the offence, along with Respondent No. 2. A chargesheet was submitted against them along with a list of 107 witnesses, including the De­facto Complainant and the Petitioner.

During the pendency of the trial, the Legal Remembrancer & Ex- Officio Secretary to the Government of West Bengal, Judicial Department, by an order of the Governor, issued a notification in 2021 directing the Public Prosecutor to apply under Section 321 of CrPC and withdraw the criminal proceedings against Respondent Nos. 2 to 11, subject to the consent of the Trial Court. This notification was challenged before the Calcutta High Court.

The High Court directed that any action taken in the meantime, pursuant to the State Government’s notification, including the order allowing withdrawal of the case, was liable to be set aside. On appeal, the Division Bench set aside order and remanded the matter back for fresh adjudication

The Single Judge then observed that the withdrawal of the writ petition at that stage would frustrate the order of the Division Bench as well as the ends of justice. It was, directed that the order of the Link Judge would not be acted upon and Respondent No. 2 shall not be released from custody, without an order of the competent court. This order was later, upheld by the Division Bench in appeal.

Thereafter, the Single Judge of the High Court, on August 2, 2022, finally decided the writ petition and set aside the Government’s notification.

In the meanwhile, the brother of the deceased moved the Top Court seeking a transfer of the criminal trial to Assam claiming that a fair trial won’t be possible in West Bengal.

The Supreme Court, before delving into the case, discussed the power to transfer cases under Section 406, CrPC as well as the preliminary objection raised by the respondents on the petitioner’s locus standi.

The Court rejected the challenge against locus on the ground that Petitioner, being the real brother of the Deceased, is vitally interested in a fair trial so that the Deceased and his family gets justice.

Regarding the aspect on transfer pleas, the Court opined that a well-founded apprehension that justice will not be done is a prerequisite for such cases.

“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 court observed.

The convenience of parties and witnesses as well as the language spoken by them are also relevant factors when deciding a transfer petition, the court added.

After noting the factual matrix of the case, the bench agreed that the State of West Bengal had taken a complete “u­turn” with a view to help the main accused, namely, Respondent No. 2 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 in­charge 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 procedure followed in the case in hand 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 said Government notification. The Link Judge also showed tearing hurry in accepting the application of the Public Prosecutor and permitting withdrawal from prosecution even before the date when the case was listed for prosecution evidence”, the court said.

While stating this, the court highlighted these illegalities weren’t allowed to sustain owing to the subordinate courts’ proactive exercise.

“However, none of these patent illegalities were allowed to sustain as a result of the pro­active exercise of appellate/revisional/writ jurisdiction by the High Court. Not only was the State Government’s 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.”

Therefore, the pertinent question was whether a transfer of the trial outside the State of West Bengal was necessary. The Court said it wasn’t required.

“There’s no legal necessity to transfer the case 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”

This as mainly because more than 90 witnesses, most of whom are Bengali speaking, are yet to be examined, the Bench noted.

“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.”

With these observations, the Court passed the following directions:

• To transfer the case before the Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of Chief Judge, City Sessions Court at Calcutta.
• Directed State of West Bengal 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 within two weeks.
• To provide the wife of the Deceased, the Petitioner and other crucial prosecution witnesses with 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 the co-accused to influence ,frighten or threaten the witnesses.
• To examine and cross examine the De­facto Complainant who is also stated to be an eye-witness; the advocate engaged by the Petitioner may provide assistance to the Special Public Prosecutor.

Case Title: Afjal Ali Sha @ Abjal Shaukat Vs State of West Bengal & Ors |Transfer Petition (Criminal) No. 409 OF 2021

Citation : 2023 LiveLaw (SC) 268

Code of Criminal Procedure 1973- Section 406- 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. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked.”