Transfer of Criminal Case - A Question Mark On State Judiciary and Prosecution Agency - SC

On dated 17th March , Supreme Court in a recent judgement (Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & Ors.) observed that the convenience of parties and witnesses as well as the language spoken by them are also relevant factors when deciding a transfer petition. The transfer of a criminal case from one state to another implicitly reflects upon the credibility of not only the State Judiciary but also of the prosecution agency.

On October 7th, 2019, the deceased was allegedly shot in the neck by unknown individuals while working in a political party office. A First Information Report (FIR) was lodged the following day against one of the suspects, and after an investigation, the police concluded that several other individuals were involved. Charges were filed against them, and the trial began in September 2020. However, in February 2021, the Legal Remembrancer & ExOfficio Secretary to the Government of West Bengal issued a notification directing the public prosecutor to withdraw the criminal proceedings against the accused. The notification was challenged by the De-facto Complainant, but a newly appointed public prosecutor moved an application to withdraw the case, which was allowed by a Link Judge despite objections and pending challenges. As a result, the accused were acquitted.

The writ petition filed by the De-facto Complainant was heard on the same day when the Trial Court allowed the Public Prosecutor to withdraw the criminal case. The High Court found that none of the parameters to invoke jurisdiction under Section 321 of CrPC were applied and that the State's mala fides were evident from its contradictory stand. The High Court directed that any action taken pursuant to the State Government's notification, including the order allowing the withdrawal of the case, was liable to be set aside and ordered accordingly.

The De-facto Complainant resiled from his statement during cross-examination, but the Trial Court rejected the Petitioner's application to declare him hostile and allow cross examination.

The petitioner alleges that several abnormalities have occurred during the trial, including the change of the public prosecutor four times, harassment of prosecution witnesses and the relatives of the deceased, and attacks on the wife of the deceased and a witness named Imran Ali. The petitioner also claims that his security cover was withdrawn, and false cases have been filed against him to influence the witnesses. The authorities have been informed of these instances, but no action has been taken.

After that petitioner approached Supreme Court. The petitioner, the brother of the deceased Kurban Sha, has filed a transfer petition under Section 406 of the CrPC, read with Article 139A of the Constitution of India and Order 39 of the Supreme Court Rules, 2013. 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, 3rd Court, Tamluk, Purba Medinipur, West Bengal, to a competent court in the State of Assam. The petitioner alleges that a fair trial will not be possible in the State of West Bengal due to various abnormalities and instances of harassment of the prosecution witnesses and relatives of the deceased.

Supreme Court stated that 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”. …………………. 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.

Supreme Court observed that the right to a fair trial is a fundamental right under Article 21 of the Constitution of India, and the power of transfer under Section 406, CrPC is to be exercised sparingly and only when justice is apparently in grave peril. The court has allowed transfers only in exceptional cases, and certain guidelines and situations have been laid down wherein such power can be justifiably invoked. The apprehension cannot be imaginary and cannot be a mere allegation, and transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency.

Supreme Court further observed that 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 viewed that the transfer of a criminal case from one state to another implicitly reflects upon the credibility of not only the State Judiciary but also of the prosecution agency.

Supreme court also stated that the State of West Bengal took a complete U-turn to help the main accused, and the procedure followed to withdraw prosecution was completely alien to the scheme of Section 321, CrPC. 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.

Supreme Court observed that the High Court had proactively exercised its jurisdiction to correct the illegalities committed by the State Government in withdrawing the prosecution against the accused. The Trial Judge had repeatedly denied bail to the accused, and the High Court had also rejected his plea for bail.

The Supreme Court held that it was not legally necessary to transfer the trial outside the State of West Bengal, as more than 90 Bengali-speaking witnesses were yet to be examined, and transferring the trial to another state would cause a serious impediment to their deposition. Instead, the Court issued several appropriate directions to ensure the fairness of the trial, such as transferring the case to the Chief Judge of City Sessions Court at Calcutta, appointing a Special Public Prosecutor, providing security to crucial prosecution witnesses, and not granting bail to the accused until the conclusion of the trial, except by the High Court. The Learned Portfolio Judge of the Calcutta High Court was also requested to regularly monitor and supervise the trial proceedings.

Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & Ors.