Trial outside West Bengal

Supreme Court: In a criminal transfer petition requesting the transfer of case with charges under Section 302 read with Section 120-B of Penal Code, 1860 (‘IPC’) and Sections 25 and 27 of Arms Act, 1959 (‘Arms Act’) from State of West Bengal to some other State, the Division Bench of Surya Kant* and J.K. Maheshwari, JJ. concluded that there is no legal necessity to transfer the trial outside West Bengal since the petitioner’s apprehensions can be effectively redressed through appropriate directions.

Facts reveal that on 7-10-2019, the deceased was alleged to have been shot in neck when he was working in the office of a political party. A First Information Report (‘FIR’) was lodged under Section 302 read with Section 120-B of IPC and Sections 25 and 27 of Arms Act. Charges were framed by the Trial Court under the same Sections as those in the FIR. The trial commenced in 2020 and the main accused had been in custody. Since then due to dismissal of bail applications by the Trial Court as well as the High Court.

During pendency of trial, the Legal Remembrancer & Ex-Officio Secretary to the Judicial Department of West Bengal Government through notification dated 26-2-2021 directed the Public Prosecutor to apply under Section 321 of Criminal Procedure Code, 1973 (‘CrPC’) and withdraw criminal proceedings against the respondents other than the main accused, subject to the Trial Court’s consent. The said notification was challenged before Calcutta High Court.

A newly appointed Public Prosecutor moved an application before Trial Court on 1-3-2021 praying for withdrawal of prosecution case being marred with political and personal vendetta. Despite the case being listed for recording evidence on 10-3-2021, it was taken up for hearing the very next day by a Link Judge presiding over the Trial Court who was allegedly informed of the pending challenge to the government notification. However, the Link Judge proceeded to hear the application and allowed the Prosecution to withdraw the case resulting in acquittal of respondents other than the main accused.

The challenge against the notification dated 26-2-2021 was heard on the same day wherein the High Court pointed out that the Public Prosecutor or State did not apply any of the parameters for invoking jurisdiction under Section 321 CrPC and held such exercise ‘bad in law’ and that the mala fides of the State was evident from its contradictory stand which earlier opposed the bail applications and now seeks to withdraw the prosecution. The High Court directed the setting aside of the Trial Court order which allowed the Prosecution to withdraw the case.

The de-facto complainant in this case, who initially challenged the government notification, submitted an affidavit expressing no-objection to the bail granted to the main accused, while he appealed against the High Court’s order setting aside withdrawal of case before a Division Bench for violation of principles of audi alteram partem. The High Court Division Bench set aside the said order and remanded the matter for adjudication afresh. The Court noted that the petitioner in the instant case had also filed an application for impleadment in the Division Bench proceedings, closed with liberty to approach the Single Judge.

The Single Judge considered the de-facto complainant’s prayer for withdrawal of writ petition and vide interim order noted that the petitioner had locus to file fresh writ petition and deleted the de-facto complainant’s name transposing the name of petitioner in the instant case as the writ petitioner. It was further observed that withdrawal of writ petition would frustrate the Division Bench’s order as well as the ends of justice. It directed restriction on the orders of Link Judge and the release of the main accused from custody without orders of the competent court, upheld by the Division Bench in appeal. There was question of hostility of de-facto complainant and meanwhile, the instant Transfer Petition was filed in which the Court vide order dated 5-10-2021 directed stay on further proceedings in trial. The Single Judge on 2-8-2022 set aside the government’s notification dated 26-2-2021 along with the Trial Court’s order under Section 321 CrPC with the observation doubting the bona fides of State and Public Prosecutor behind the withdrawal.

The Petitioner in the instant case alleged multiple abnormalities like change of Public Prosecutors and harassment to prosecution witnesses, relatives of the deceased, etc., of which, the authorities were duly informed, but no action was taken. It is also stated that false cases including those alleging rape have been fastened on him to threaten the witnesses and influence them to depose in favour of accused. After all this, the instant transfer petition has been filed.

Regarding locus standi of the petitioner, the Court perused Section 406(2) of CrPC with the case of K. Anbazhagan v. Supdt. of Police, (2004) 3 SCC 767 and held that the petitioner being the deceased’s real brother has got vital interest in a fair trial thereby rejecting the respondent’s challenge.

The Court referred to catena of cases like Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260,; Nahar Singh Yadav v. Union of India, (2011) 1 SCC 307 regrading power of transfer under Section 406 of CrPC. The Court observed that the State of West Bengal has taken a complete u-turn from the principles enunciated by the Court from time to time to help the main accused and went to the extent of resorting to powers under Section 321 of CrPC in withdrawing the prosecution itself, which was completely alien to the actual provision. It further commented on the patent illegalities and the pro-active exercise of multiple jurisdictions by the High Court setting aside the government’s jurisdiction and Link Judge’s order.

The Court concluded that there is no legal necessity to transfer the trial outside West Bengal and that the petitioner’s apprehensions can be effectively redressed through appropriate directions. The Court reasoned that more than 90 witnesses were yet to be examined, transfer of trial to another state will cause serious impediment and the prosecution case will be prejudiced.

The Court transferred the case before Additional Sessions Judge to the Court of Chief Judge in the Sessions Court. The Court further directed the said judge not to entrust the case to any other Additional Sessions Judge and to endeavor to take up the trial on a weekly basis to conclude it within 6 months. The Court directed the State to appoint a Special Public Prosecutor on the Chief judge’s recommendations with the High Court’s approval. The Court further directed providing adequate security to the deceased’s wife, petitioner and crucial prosecution witnesses so that no harm is caused to their life and liberty. The Court directed transfer of main accused and others in custody to the Calcutta Central Jail and not to be enlarged on jail till the trial concludes giving an exception to the High Court.

[Afjal Ali Sha v. State of W.B., 2023 SCC OnLine SC 282, judgment dated 17-3-2023]

Judgment authored by: Justice Surya Kant

Know Thy Judge| Justice Surya Kant

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