Summary
The brother of a man shot dead in Purba Medinipur in 2019 sought transfer of the murder trial out of West Bengal, after the State had directed withdrawal of the prosecution under Section 321 CrPC, the Calcutta High Court had set that aside, the informant had resiled and witnesses were threatened. The Supreme Court held the brother a party interested with locus and found the State had taken a U-turn to help the main accused, but saw no necessity to shift the trial outside the State given the High Court's corrective orders and ninety remaining Bengali-speaking witnesses. It transferred the trial to the City Sessions Court, Calcutta with directions on a Special Public Prosecutor, witness protection, custody and High Court monitoring.
Issues
- Whether the brother of a murder victim, who is a prosecution witness but not the complainant, is a party interested entitled to seek transfer of the trial under Section 406(2) of the Code of Criminal Procedure, 1973.
- Whether the State's attempt to withdraw the prosecution, the informant's turning hostile and alleged intimidation of witnesses justify transferring the trial to another State, or whether the ends of justice can be met by alternative directions.
Provisions considered
- Section 406, Code of Criminal Procedure, 1973The expression 'party interested' is of wide import, as held in K. Anbazhagan, and covers the deceased's brother; the power is exercised sparingly on a well-founded apprehension that justice will not be done, applying the factors in Nahar Singh Yadav and Amarinder Singh, and weighing the convenience and language of witnesses. (¶¶ 22, 23, 24, 26, 27, 29, 31, 32)
- Section 321, Code of Criminal Procedure, 1973Withdrawal from prosecution requires the Public Prosecutor's independent application of mind with the court's consent; here the decision was taken by the State Government and merely acted upon by the Prosecutor, and the Link Judge accepted it in tearing hurry, a procedure wholly alien to the section, though the High Court annulled it. (¶¶ 6, 7, 9, 14, 33, 34)
- Article 21, Constitution of IndiaThe right to a fair trial is a fundamental right, but an applicant for transfer must show a reasonable, not imaginary, apprehension. (¶ 26)
Held
- The State of West Bengal took a complete U-turn to help the main accused by resorting to Section 321, after having vigorously opposed his bail; but these patent illegalities were not allowed to sustain because the High Court set aside the Government notification and the Link Judge's order, and both the trial court and the High Court repeatedly refused bail, so the State judiciary ensured fairness. (¶¶ 33, 34)
- There is no legal necessity to transfer the trial outside West Bengal: more than ninety witnesses, mostly Bengali-speaking, remain to be examined and transfer to a neighbouring State would severely prejudice the prosecution; the petitioner's genuine apprehensions can be redressed by transferring the trial to the Chief Judge, City Sessions Court, Calcutta, who shall try it personally on a weekly basis and endeavour to conclude it within six months. (¶¶ 35, 36)
- Directions issued for appointment of a Special Public Prosecutor on the Chief Judge's recommendation with the High Court's approval within two weeks, adequate security to the deceased's wife, the petitioner and crucial witnesses, cross-examination of the resiling informant by the Special Public Prosecutor with the petitioner's advocate assisting, transfer of accused in custody to Central Jail, Calcutta, no bail to the accused till conclusion of trial except by the High Court, and monitoring by the portfolio Judge of the Calcutta High Court. (¶ 36)
Result
Transfer petition disposed of; Sessions Trial No. 1(03) of 2020 arising from FIR No. 495 of 2019 of Panskura Police Station transferred from the Additional Sessions Judge, 3rd Court, Tamluk to the Chief Judge, City Sessions Court, Calcutta with directions on a Special Public Prosecutor, witness security, cross-examination of the informant, custody, bail and High Court monitoring; pending applications disposed of.