Afjal Ali Sha @ Abjal Shaukat Sha vs The State Of West Bengal

TRANSFER PETITION (CRIMINAL) NO. 409 OF 2021

Afjal Ali Sha @ Abjal Shaukat Sha … Petitioner VERSUS State of West Bengal & Ors. … Respondents

JUDGMENT

Surya Kant, J.

1. This transfer petition has been preferred under Section 406 of

the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), read with

Article 139A of the Constitution of India and Order 39 of the Supreme

Court Rules, 2013. The Petitioner herein is the brother of one Kurban

Sha (hereinafter, ‘Deceased’) and he seeks transfer of the criminal trial

S.T. No. 1 (03) of 2020, arising out of FIR No. 495 of 2019 registered at

PS Panskura, pending in the Court of Additional Sessions Judge, 3 rd

Court, Tamluk, Purba Medinipur, West Bengal (hereinafter, ‘Trial

Court’), to a competent court in the State of Assam, primarily on the

ground that a fair trial will not be possible in the State of West Bengal.

A. Signature Not Verified FACTS Digitally signed by VISHAL ANAND Date: 2023.03.17 15:00:27 IST Reason:

Page | 1

2. The factual matrix is succinctly discussed below before delving

into the aforesaid issue that arises for our consideration: ­

3. On the date of incident, i.e., 07.10.2019, the Deceased is 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

(hereinafter, ‘IPC’) and, under Sections 25 and 27 of the Arms Act,

1959 against Respondent No. 2 at the behest of one Jahar Sha

(hereinafter, ‘De­facto Complainant’), who is stated to be the

Deceased’s nephew and an eyewitness to the alleged occurrence.

4. After investigation, the police authorities concluded that

Respondent Nos. 3 to 11 were also involved in the offence, along with

Respondent No. 2. A chargesheet was submitted against the said

individuals along with a list of 107 witnesses, including the De­facto

Complainant and the Petitioner. It is pertinent to mention that during

the investigation, the police is also said to have recovered some

incriminating material such as fire arms, ammunition and certain

documents.

5. Accordingly, charges were framed against Respondent Nos. 2 to

8 and Respondent No. 11 by the Trial Court under Sections 302 read

Page | 2 with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959.

Respondent Nos. 9 & 10 had previously been declared as proclaimed

offenders. The trial commenced in September, 2020. The main

accused, i.e., Respondent No. 2, continues in custody as his repeated

bail applications have been dismissed by the Trial Court as well as by

the Calcutta High Court.

6. 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 dated

26.02.2021 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 learned Trial

Court. This notification was challenged by the De­facto Complainant

before the Calcutta High Court.

7. Soon thereafter, on 01.03.2021, a newly appointed Public

Prosecutor moved an application before the learned Trial Court

praying for withdrawal of the prosecution case stating that it was

marred with political and personal vendetta. This application was

taken up for hearing on the very next day by a Link Judge who was

presiding over the Trial Court, despite the fact that the case was listed

for recording evidence on 10.03.2021. The Link Judge was reportedly

informed about the pending challenge to the notification dated

Page | 3 26.02.2021 at the Calcutta High Court, but regardless thereto, he

proceeded to hear the application and allowed the Prosecution to

withdraw the case. As a result, Respondent Nos. 2­11 were acquitted.

8. Meanwhile, the writ petition filed by the De­facto Complainant

was taken up for hearing on the afternoon of the same day when the

Trial Court had allowed the Public Prosecutor to withdraw the

criminal case. A learned Single Judge of the High Court noted as

follows:

“Surprisingly, in the instant case, a specific notification was issued on February 26, 2021, apparently communicating a direction of the Governor to instruct the concerned Public Prosecutor to withdraw the case–in­question subject to the consent of the Sessions Court. However, not an iota of reason and/or how such withdrawal would advance the cause of justice and public interest has been indicated in the said order. That apart, the modus operandi in the present case is rather transparent since the Public Prosecutor actually acted on such instruction and made an application pursuant to the order of the State Government and, despite having knowledge of this Court being in seisin of the present writ petition, the concerned Sessions 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 all previous occasions when bail was rejected, that the State vehemently opposed even the grant of bail to the accused. Hence, it defies logic completely as to what prompted the Government to instruct the Public Prosecutor­in­ question to withdraw the case against the accused persons all of a sudden. Despite the self­imposed restraint which this court imposes upon itself in the exercise of

Page | 4 jurisdiction under Article 226 of the Constitution of India, such restraint cannot be a fetter to the court exercising such jurisdiction for the ends of justice where manifest abuse of the process of law has taken place. If the writ court shuts its eyes to the perpetration of mala fide and arbitrary administrative action, it would be failing in its incumbent duty of judicial review conferred by the Constitution of India.

In the present case, in view of the arbitrary and unreasoned nature of the instructions of the State to the Public Prosecutor dated February 26, 2021, pursuant to which the Public Prosecutor acted and even the Sessions Court granted consent to such withdrawal, the said instruction as well as the effects thereof have to be set aside.”

9. The High Court observed that none of the parameters to invoke

jurisdiction under Section 321 of CrPC were applied either by the

Public Prosecutor or by the State and resultantly, it was held that the

exercise was bad in law and that the mala fides of the State was

evident from its contradictory stand wherein it previously opposed the

bail applications but now was seeking to withdraw the prosecution

itself. Accordingly, the High Court directed that any action taken in

the meantime, pursuant to the State Government’s notification dated

26.02.2021, including the order allowing withdrawal of the case was

liable to be set aside. It ordered accordingly.

10. The De­facto Complainant thereafter submitted an affidavit

before the Trial Court expressing his ‘no­objection’ to the grant of bail

to Respondent No. 2. Meanwhile, Respondent No. 2 appealed against

Page | 5 the order of the learned Single Judge before a Division Bench, inter

alia, on the ground of violation of the principles of audi alteram

partem. The Division Bench set aside the order on this ground and

remanded the matter for fresh adjudication. It must be noted that the

Petitioner herein had also filed an application for impleadment in the

proceedings before the Division Bench but the same was closed with

liberty to renew the prayer before the Single Judge.

11. On remand, the learned Single Judge first considered the prayer

of the De­facto Complainant for withdrawal of the writ petition and

also the application of the Petitioner herein to be impleaded as a

party. The learned Single Judge, vide an interim order in the second

round of proceedings, noted firstly that the Petitioner is the brother of

the Deceased and has the locus to file a fresh writ petition and

secondly, in view of the alleged threat to life & liberty of the De­facto

Complainant, his name was deleted and the Petitioner was transposed

as the writ petitioner. The Single Judge observed that the withdrawal

of the writ petition at that stage would frustrate the order of the

learned Division Bench as well as the ends of justice. It was, thus,

again 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.

Page | 6

12. Meanwhile the trial proceeded but during his cross­examination,

the De­facto Complainant is stated to have resiled from the statement

made during examination­in­chief but nevertheless he was not

declared hostile by the Public Prosecutor. Thereafter, the Petitioner

filed an application before the Trial Court to declare the De­facto

Complainant hostile and to allow the Petitioner’s lawyer to cross­

examine him. The Trial Court considered the said application and

noted that the De­facto Complainant had “made some statements in

his cross examination, which are not in conformity with the version of

his examination­in­chief”. The Petitioner’s application was however,

rejected after appreciation of the statutory provisions and the case

law. The Trial Court held as follows:

“In view of the discussions made in the foregoing paragraphs, I am of the opinion that the prosecution should be given a fair chance to unearth the true facts, and an opportunity shall be given to the Ld. Spl. P.P. to cross examine PW1 after declaring him hostile.

Hence, the Ld. Spl. P.P., and not the Ld. Advocate appointed by this instant petitioner, shall be given permission to cross­examine PW1. The Ld. Advocate appointed by the petitioner Afjal Ali Sha can only be permitted to act under the direction of Ld. Public Prosecutor in view of Sec 301(2) of CrP.C.”

13. Meanwhile, the instant Transfer Petition was filed in which this

Court vide order dated 05.10.2021 directed stay on further

proceedings in the trial.

Page | 7

14. Thereafter, the learned Single Judge of the High Court, on

02.08.2022, finally decided the writ petition and set aside the

Government’s notification dated 26.02.2021. It was observed that

“The attending circumstances of the present case do not inspire

much confidence in the bona fides of the State and PP behind

the withdrawal”. The Court viewed that: ­

“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 scot­free without trial.”

It was also noted that on the one hand, the State was defending

the withdrawal of Prosecution and on the other, was expediting the

trial wherein several witnesses were resiling from their statements. In

light of these circumstances, all action taken in pursuance of the

notification dated 26.02.2021, including the application and Trial

Court’s order under Section 321, CrPC was set aside. The said order

appears to not have been challenged and has attained finality.

15. The Petitioner has further alleged that multiple abnormalities

have occurred during the pendency of the trial, such as the change of

the Public Prosecutor four times and the harassment meted out to the

Page | 8 prosecution witnesses and relatives of the Deceased. The wife of the

Deceased, Saida Sabana Banu Khatun, is alleged to have been

attacked by Respondent No. 2’s henchmen and relatives of the other

accused persons in the premises of the Trial Court. One witness,

named Imran Ali, was allegedly abducted by associates of Respondent

No. 2 who also threatened to kill him. The Petitioner has contended

that his security cover was withdrawn. It is also averred that the

authorities were duly informed 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 and influence them to depose in favour of the

accused persons.

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

filed.

B. SUBMISSIONS

17. Mr. P.S. Patwalia, learned senior counsel for the Petitioner has

raised the following contentions seeking transfer of the trial outside

the State of West Bengal:

(i) The conduct of the State, which was vigorously opposing

the bail applications of Respondent No. 2 in the past, has

dramatically changed and is now detrimental to the

Prosecution’s case;

Page | 9

(ii) Respondent No. 2 has at least thirty­four (34) criminal

cases registered against him and yet, the State directed

withdrawal from prosecution without any cogent reason.

The power under Section 321, CrPC was blatantly misused;

(iii) The De­facto Complainant has been gained over during the

trial as is evident from his no­objection to the grant of bail

to Respondent No. 2; his prayer to withdraw the writ

petition challenging the State’s notification under Section

321, CrPC and the De­facto Complainant turning hostile

during his cross­examination;

(iv) The witnesses are being threatened and are turning hostile

in their cross examination. False cases have been instituted

against crucial witnesses to browbeat them;

(v) There is a serious threat to the life and liberty of the

witnesses and they may be influenced due to the lack of a

safe environment to truthfully depose before the court.

Reliance has been placed on certain observations of the

Calcutta High Court regarding the mala fides of the State;

(vi) It is alleged that on a previous occasion, when the High

Court directed to shift Respondent No. 2 from Purba

Medinipur to a hospital in Kolkata for medical treatment,

the same was not done. Rather, he was kept in the hospital

Page | 10 at Purba Medinipur where he had access to luxurious

facilities;

(vii) Reliance has been placed on the High Court’s observations

while rejecting Respondent No. 2’s bail application to the

effect that:

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

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

These circumstances give rise to a serious apprehension in the mind of this Court as to the overwhelming and malevolent influence on the witnesses as well as the informant which had prompted them from either withdrawing from the writ petition or resiling from their earlier statements before police during deposition in Court.”

(viii) In these circumstances, there is a genuine apprehension in

the mind of the Petitioner, brother of the Deceased, that

Page | 11 they would not receive free and fair justice in the State of

West Bengal as the prosecution is compromised;

(ix) Reliance has been placed on Surendra Pratap Singh v.

State of Uttar Pradesh1 to urge that in similar facts and

circumstances, the trial was transferred from the State of

Uttar Pradesh to the State of Madhya Pradesh, in order to

do fair justice to all the parties. The judgment in K.

Anbazhagan v. State of Karnataka2 has also been cited

to iterate that once a case stands transferred from one

state to another, the transferee state has full control over

the prosecution and becomes the prosecuting State. It is

the Petitioner’s contention that once the prosecuting state

changes, the trial can be completed in a fair and just

manner.

18. During the course of hearing, Mr. Patwalia clarified that it is not

necessary to transfer the trial to the State of Assam and this Court

may consider the desirability of transferring it to any other

neighbouring States, like Orissa or Jharkhand.

19. Opposing the transfer, Mr. Kapil Sibal and Mr. Neeraj Kishan

Kaul, learned senior counsels on behalf of Respondent No. 1­ State of

West Bengal and Mr. V. Giri, learned senior counsel on behalf of

1 Surendra Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475. 2 K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86.

Page | 12 Respondent No. 2, contended that the facts as revealed do not make

out a case for transfer of the trial outside the State of West Bengal. At

the outset, they have challenged the locus of the Petitioner to file this

transfer petition, contending that the Petitioner is not the

complainant and is only a witness in the trial. They have made the

following submissions:

(i) The Deceased’s wife did not approach the state police about

the alleged attack on her in the Trial Court premises on

02.03.2021 and the Petitioner’s security arrangement was

never withdrawn by the State. The police took prompt

action in the matter of abduction of witness Imran Ali as

the accused persons & the victims were swiftly located and

chargesheet has been filed in the case;

(ii) The veracity of the media reports relied upon by the

Petitioner to show that Respondent No. 2 has access to

facilities, such as smartphone, headphones etc. are not

based upon correct facts;

(iii) The Public Prosecutor gave detailed reasons in his

withdrawal application before the Trial Court in compliance

with Section 321 of CrPC;

(iv) The requirements under Section 406, CrPC are not met in

this case as no reasonable apprehension that justice will

not be done, is made out.

Page | 13

(v) There is no allegation or whisper of bias in the State

Judiciary as is evident from the fact that the accused

persons’ bail applications have constantly been rejected by

the Trial Court and such rejection has been upheld in the

High Court. The High Court has acted as a robust

supervisory mechanism to oversee the trial proceedings and

check any lapses occurring therein;

(vi) There are no allegations of unfair investigation and the only

Trial Court order found fault with was the order passed by

the Link Judge allowing the application for withdrawal of

prosecution;

(vii) There are 107 Prosecution witnesses in the trial out of

which 80 witnesses reside in Purba Medinipur district

where the trial is going on. Till the trial was stayed by this

Court, the Trial Court had examined 11 witnesses. Most

witnesses are stated to be Bengali speaking. In light of

these circumstances, it is stated that the transfer of the

case to a court outside the State of West Bengal will cause

extreme inconvenience to the Prosecution & most

witnesses. The judgment in Abdul Nazar Madani v. State

of Tamil Nadu3 wherein this Court considered the

convenience of the Prosecution, other accused persons, the 3 Abdul Nazar Madani v. State of Tamil Nadu (2000) 6 SCC 204.

Page | 14 witnesses and the larger interest of society while deciding a

transfer petition, has been pressed into aid. Other cases

have also similarly been cited4;

(viii) Reliance has been placed on Nahar Singh Yadav v. Union

of India5 wherein this Court noted that the power under

Section 406, CrPC is to be exercised sparingly and that

transfer should be allowed only when there is a well­

substantiated apprehension that justice will not be

dispensed impartially. Other similar decisions have also

been brought to our notice6;

(ix) Ashish Chandra v. Asha Kumari7 has been cited to refer

the observations of this Court that transfer of cases have a

demoralizing effect on trial courts.

(x) The Deceased was and the Petitioner is a politically

influential person and transfer of the proceedings is sought

to a jurisdiction where he will be able to exert his political

influence. The Deceased himself is stated to have had

multiple criminal cases pending against him;

4 Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358; Swaati Nirkhi v. State (NCT of Delhi) 2021 SCC Online SC 202.

5 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307. 6 Gurcharan Dass Chadha v. State of Rajasthan (1966) 2 SCR 678; Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260.

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

Page | 15

(xi) There is nothing on record to show that witnesses have

been threatened. Respondent no. 2, being in custody,

cannot exert any threat or pressure on the witnesses;

(xii) The Petitioner has delayed the trial through these

proceedings and the accused persons have been in custody

for over three years. As such, it is contended that prejudice

has been caused to the accused persons and they shall

incur heavy expenses to defend themselves if the case were

to be transferred outside the State of West Bengal;

(xiii) To ensure a fair trial, this Court may transfer the case

anywhere in the state and appoint a Public Prosecutor

while protecting the accused persons and the complainant.

20. All other Respondents have supported this stance and made

similar averments.

C. ANALYSIS

21. We have carefully considered the submissions made by the

parties and perused the record. Before adverting to the contentious

issue, we deem it appropriate to discuss the settled principles in

relation to the exercise of power to transfer cases under Section 406,

CrPC as well as the preliminary objection raised by the respondents

on the locus standi of the petitioner in seeking transfer of the subject

trial.

Page | 16 C.1. LOCUS STANDI OF THE PETITIONER

22. Section 406(2) of the CrPC provides that the Supreme Court may

transfer a case “only on the application of the Attorney­General of

India 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” under

Section 406, CrPC and held as follows:

“The words “party interested” are of a wide import and, therefore, they have to be given a wider meaning. If it was the intendment of the legislature to give restricted meaning then it would have used words to the effect “party to the proceedings”. In this behalf the wording of Article 139­A of the Constitution of India may be looked at. Under Article 139­A the transfer can be if “the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case”. (emphasis supplied) Also if the provisions of Chapter XXIX of the Criminal Procedure Code are looked at, it is seen that when the legislature intended a “party to the proceedings” to have a right of appeal it specifically so stated. The legislature, therefore, keeping in view the larger public interest involved in a criminal justice system, purposely used words of a wider import in Section

406. Also, it is a well­settled principle of law that statutes must be interpreted to advance the cause of statute 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 the

Petitioner, being the real brother of the Deceased, is vitally interested

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

Page | 17 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.

C.2. GROUNDS FOR TRANSFER

25. Coming to the second limb of the contentions raised on behalf of

the parties, we may firstly notice some of the well­defined contours in

relation thereto. It has by now been well established that a well­

founded apprehension that justice will not be done is a prerequisite

for transfer of the case. Tracing the power of transfer of a case, we are

reminded of Lord Hewart’s dictum in Rex v. Sussex Justices9 stating

that “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”.

26. The right to a fair trial is a fundamental right under Article 21 of

the Constitution of India10 and its importance cannot be emphasised

enough. 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.11

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 Pillai v. State of Kerala (2000) 7 SCC

129. 11 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260.

Page | 18

27. 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.12 Thus, over the years, this

Court has laid down certain guidelines and situations wherein such

power can be justiciably invoked.

28. In Amarinder Singh v. Parkash Singh Badal 13, this Court

observed as follows:

“19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.”

29. In Nahar Singh Yadav v. Union of India 14 after analysing the

case­law, this Court enumerated the basic principles of the power of

transfer under Section 406, CrPC as follows:

“29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of sub­sections (2)

12 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307; Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 February 2023]. 13 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260. 14 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.

Page | 19 and (3) of the said section and on an analysis of the decisions of this Court 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. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:

(i) 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;

(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

(iii) 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 non­official witnesses;

(iv) 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

(v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.”

30. In R. Balakrishna Pillai v. State of Kerala 15, this Court noted

the crucial separation of powers between the judiciary and the

15 R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129.

Page | 20 executive and held that “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.”

31. The convenience of parties and witnesses as well as the language

spoken by them are also relevant factors when deciding a transfer

petition, as has been noted by this Court in a catena of judgments. 16

32. In some of the recent decisions including in Neelam Pandey v.

Rahul Shukla17, 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.

33. Adverting to the facts of the case in hand in light of the

principles enunciated by this Court from time to time, it is true that

the State of West Bengal has 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 16 Abdul Nazar Madani v. State of TN (2000) 6 SCC 204; Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358.

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

Page | 21 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.

34. 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. In this factual scenario, the question arises

whether it is essential to transfer the trial outside the State of West

Bengal or whether the ends of justice can be adequately met by

issuing alternative appropriate directions?

D. CONCLUSIONS

35. Having given our thoughtful consideration to this issue, it

appears to us that there is no legal necessity to transfer the trial

Page | 22 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. We say so for the reason

that more than 90 witnesses, most of whom are Bengali speaking, are

yet to be examined. 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.

36. Taking into consideration all the facts and circumstances, we

deem it appropriate to dispose of this transfer petition in following

terms:­

(i) 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.

(ii) The trial shall be conducted by the Chief Judge, City Sessions

Court and he shall not entrust the case to any other

Page | 23 Additional Sessions Judge.

(iii) The Chief Judge, City Sessions Court shall endeavour to take

up the trial on a weekly basis and shall make an effort to

conclude the same within a period of six months.

(iv) The State of West Bengal is directed 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. This exercise shall be completed within two

weeks.

(v) 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.

(vi) The De­facto Complainant who is also stated to be the eye­

witness and has allegedly resiled from his version recorded

during the examination­in­chief, shall be subjected to cross­

examination by the Special Public Prosecutor, for which the

advocate engaged by the Petitioner may provide assistance to

the learned Special Public Prosecutor.

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(vii) Respondent No. 2 or any other accused who are in custody

shall 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 be

enlarged on bail till the conclusion of trial save and except by

the High Court.

(ix) The Learned Portfolio Judge of the Calcutta High Court is

requested to regularly monitor and supervise the trial

proceedings in terms of the directions issued hereinabove.

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

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

………………………………..J. [SURYA KANT]

………………………………..J. [J.K. MAHESHWARI] NEW DELHI;

MARCH 17, 2023.

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