Brief Facts
- The transfer petition was 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 is the brother of the Deceased.
- 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.
- After investigation charge sheet was filed against the accused persons and charges were framed by the Trial Court against the accused persons under Section 302 read with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959.
- 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 Cr.P.C 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 De-facto Complainant before the Calcutta High Court.
• 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, i.e., after 9 days. The Link Judge allowed the Prosecution to withdraw the case. As a result, Respondent Nos. 2-11 (accused persons) were acquitted. - However, 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.
- Pursuant to the series of events, the High Court set aside the order passed by the Link Court and restored the Trial and even the Order of the State Government for withdrawal of the prosecution was also later quashed by the High Court.
- During this the de-facto complainant turned hostile.
- The Petitioner thereafter filed the present application seeking transfer of case. The Petitioner has 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 prosecution witnesses and relatives of the Deceased, amongst other.
Issues
- Whether the Petitioner being the brother of the deceased is covered in the definition of a party interested under Section 406 Cr.P.C?
- Approach of Courts while dealing with transfer applications.
- Can Public Prosecutor in-charge of the case apply his mind independently and impartially to form a view for withdrawal from the prosecution despite the notification issued by the State authority?
Held
- The Transfer Petition partly allowed. Supreme Court denied to transfer the trial outside the State, however, the trial was transferred from ADJ-3, Tamluk to Court of Chief Judge, City Sessions Court, Calcutta and various directions were also issued including the direction to complete the trial within the period of 6 months and the High Court was asked to monitor and supervise the trial.
Scope of word “party interested” in section 406 - Section 406(2) of the CrPC provides that the Supreme Court may transfer a case “only on the application of the Attorney-General of India or of a party interested”.
- The Supreme Court relied on the judgement passed in the case of K. Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767 wherein 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 139-A of the Constitution of India may be looked at. Under Article 139 -A 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 well-settled principle of law that statutes must be interpreted to advance the cause of statute and not to defeat it.” - 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 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.
Reasonable apprehension is necessary to seek transfer - 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.
- The right to a fair trial is a fundamental right under Article 21 of the Constitution of India 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.
Section 406, CrPC is to be exercised sparingly - 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. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked.
- 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.
Findings on facts of the case - 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 u-turn 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 in-charge 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.
- Having given our thoughtful consideration to this issue, it appears to us that there is no legal necessity to transfer the trial 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.
Relevant Para No.
- 22, 23, 24, 25, 26, 27, 31, 33, 35